L v. Guardianship Board and Another

HCMP 976/2022

[2023] HKCFI 1180

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 976 OF 2022

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BETWEEN

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DECISION

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1.The appellant (“L”)  seeks to appeal with a view to setting aside the guardianship order made by the 1^st respondent (“the Board”)  whereby the 2^nd respondent (“the Director”)  was appointed as the guardian of LSW, L’s mother and a mentally incapacitated woman. The intended appeal is out of time. Further, to the extent that the intended appeal concerns question of fact, L also requires leave of the court. Hence the present application.

2.The Director filed an affirmation advocating against grant of leave.  Other than that, the Board and the Director adopted neutral stance and intended to make no submission.  Consulted the parties, this court directed the present application to be disposed of on paper only.

Background

3.LSW is now aged 90 and has been suffering from mixed-type dementia.  She has been medically assessed to be incapable of making reasonable decision concerning her affairs and welfare.  For years before the issue of guardianship came about, the children of LSW have been involved in making arrangement for her care and maintenance.  Aggravation of their differences in views about her daily care, rehabilitation methods, accommodation, access, use of medications and medical treatment drove them to mutual mistrust and agrimony.

4.The 10 children of LSW are aged between 67 being the eldest and 54 being the youngest.  In terms of views, they have been recognised to fall into 3 groups namely: (i)  L, the 3^rd daughter, with whom the 1^st son sides; (ii)  the 10^th son; and (iii)  the 4^th daughter and the 2^nd son, with whom the rest of the children side.  Amongst them, the 5^th son lives in Taiwan and his involvement in practical terms is minimal.

5.The siblings’ relationship got worse since early 2018.  Conflicts arose, and even the police were involved on occasions.  In December 2019, L, the 4^th daughter and the 10^th son respectively filed their applications for guardianship order in respect of LSW pursuant to section 59M of the Mental Health Ordinance, Cap 136 (“MHO”).

6.Since the making of the guardianship applications, the Social Welfare Department (“the Department”)  has made repeated efforts to facilitate the resolution of the siblings’ conflict.  The history and circumstances leading to the guardianship applications as well as the respective views and stances of each of the children were investigated and set out in detail in the social enquiry report of the Department dated 8 January 2020 presented to the Board.

7.Whilst the mistrust amongst the children was noted to have made it difficult to have thorough discussion and to work out a feasible long term welfare plan for LSW, the Department first recommended to defer the consideration of a guardianship order until after more intervention from social worker from the Integrated Family Service Centre and arrangement of mediation service.

8.The efforts of the Department yielded no resolution, and no consensus could be achieved amongst the children for working out a feasible long term welfare plan for LSW.  In the supplementary information dated 13 July 2020 submitted to the Board, the Department set out in detail the significant development since the social enquiry report in May 2020 including, amongst other things, the persistent dispute amongst the children on the various facets of the caring of LSW, the respective views of the 3 applying children for guardianship as well as the result of the joint meeting of the children and the writer of the social enquiry report.  Considering the non-compromising positions of the children, the Department recommended as the last resort that a public guardian, ie the Director, be appointed to safeguard the best interest of LSW.

9.On 15 July 2020, the Board conducted the hearing of the guardianship applications.  Considering the medical evidence, the above reports, statements as well as the oral testimony of the applying children and the public officer responsible for the Department’s reports mentioned above, the Board ordered that LSW be received into guardianship for a period of 1 year and that the Director be appointed as the guardian (“the Order”).

10.Detailed reasons for the Order were given in writing.  It was explained that no other less restrictive or intrusive means were available as LSW lacks capacity to make decisions on accommodation, her own welfare plan and treatment plan.  The serious conflict amongst the family members regarding her welfare and accommodation was also explained.  It was considered to be in the interests of her welfare that she should be received into guardianship.

11.Section 59S(2)  of the MHO provides:

“Where it appears to the Guardianship Board that there is no appropriate person available to be appointed the guardian of a mentally incapacitated person the subject of a guardianship application, the Guardianship Board shall make a guardianship order appointing the Director of Social Welfare as the guardian of the mentally incapacitated person.”

12.Applying section 59S, the Board was satisfied that there was no other person than the Director who was appropriate to be appointed as the guardian of LSW in the circumstances.

13.Pursuant to the Order, the Director was given, subject to various specified conditions, the following powers prescribed under section 59R(3)  of the MHO to the exclusion of any other person:

(1)  to require LSW to reside at such place as may be specified by the guardian (section 59R(3)(a));

(2)  to convey or to arrange conveyance of LSW to the place so specified, and such reasonable force may be used as is necessary for the purpose (section 59(3)(b));

(3)  to require LSW to attend at places and times so specified by the guardian for the purpose of medical or dental treatment or occupation, education or training (section 59R(3)(c));

(4)  to consent to medical or dental treatment on behalf of LSW, but only to the extent that she is incapable of understanding the general nature and effect of such treatment (section 59R(3)(d));

(5)  to require access to LSW to be given at any place where she is residing to any doctor, approval social worker or community nurse (section 59R(3)(e)); and

(6)  to hold, receive or pay the monthly sum of HK$17,700 on behalf of LSW for her maintenance or other benefit (section 59R(3)(f)).

14.There has been no appeal against the Order.

15.Since the Order, LSW has had stepwise deterioration in her mental state and remained incapable of managing and making decisions on her welfare, treatment and financial matters. Meanwhile, her children persisted in their conflicting views regarding these matters and arrangements.

16.Numerous detailed reports on the up to date living and care condition of LSW were produced by the Department in March 2021.  In the progress social enquiry report dated 28 May 2021, the Department set out in detail the current living condition of LSW and the controversial episodes of removal and transfer of LSW between accommodations.  Medical treatment and medications prescribed to LSW as well as medical opinion of her treating doctors were also explained in detail.  So were the involvements and views of each of the children regarding the accommodation, financial support and access.  It was observed that their disputes were too frequent and serious that it was unable to maintain stable care arrangement for LSW, notwithstanding repeated family conferences conducted since the Order.

17.Section 59U of the MHO empowers the Board to review a guardianship order prior to the expiry of the duration of the order.  Section 59R(1)(b)  provides that a guardianship order, if renewed upon review, may be renewed for a period not exceeding 3 years.

18.Upon review, LSW was assessed to be still in need of a guardianship order to safeguard her best interests especially in respect of personal care.  Having explored and assessed all children’s conflicting approaches applied in the complicated family dynamic, it was considered their deep-rooted mistrust led to no opportunity for persistent cooperation among LSW’s children.  As such, the Department recommended that the Order be renewed for 3 years with the Director continuing to be the public guardian for LSW with his powers under section 59R(3)(a)  to (e)  of the MHO mentioned above.

19.In the course of its review of the Order, the Board requested and received the Department’s supplementary report dated 12 July 2021.  In this supplementary report, the Department set out in detail the up to date health condition of LSW after her latest discharge from the hospital and the opinion of her treating doctors.  There was also detailed account of the latest living condition of LSW under the 4^th daughter’s arrangement and the incidents and difficulties arising out of the persistent disagreement and refusal to co-operate amongst the children on securing a long term care plan and arrangement for LSW.  The Department noted the respective stance of L, the 4^th daughter and the 10^th son in seeking to become the private guardian of LSW.  It eventually maintained the recommendation for the renewal of guardianship of LSW and for the Director to remain as the public guardian.

20.On 14 July 2021, the Board conducted a review hearing in respect of the Order.  After considering the documents before the Board when the Order was made, all the subsequent investigation and progress reports mentioned above, the written and the oral representations of the children of LSW attending, the Board ordered the Order to be renewed for a period of 3 years commencing on 14 July 2021, ie until 13 July 2024, and the Director to continue to be appointed as the public guardian of LSW with powers under section 59R(3)(a)  to (e)  of the MHO mentioned above (“the Renewal Order”).  The Renewal Order and reasons (“the Reasons”)  were served on 21 July 2021.

21.Through those acting for her, L purported to lodge her appeal against the Renewal Order as a matter of mental health proceedings in April 2022.  Amongst other things, this court drew their attention to the fact that the intended appeal is well out of the time, which, pursuant to section 59W(2)  of the MHO, should have been instituted within 28 days after the day on which the document setting out the terms of the decision of the Board is sent to the person.  Such period ended in about mid-August 2021.  Further, pursuant to section 59W(1), an appeal from any decision of the Board may only be on a question of law or, with leave of the court, on any other question.  Appeal on question of fact without leave is liable to be stayed: see WKP v Charles Chiu Chung Yee [2018] 3 HKLRD 232.

22.On 22 July 2022, L commenced the present proceedings instead for leave to appeal out of time and that to appeal on questions other than those of law.

23.The proceedings commenced by L triggered the operation of section 59W(4)  of the MHO, whereby the decision being appealed against would be stayed. By summons filed on 14 September 2022, the Director applied to lift the stay of the Renewal Order so as not to adversely affect the care and maintenance of LSW pending the determination. The application was subsequently disposed of without argument, leaving only the issue of costs.

24.The Board, in view of its role, normally remains neutral and is not expected to be joined as a respondent: see WKP (above)  at §32.  The Director, represented by the Department of Justice, filed an affirmation stating the facts and the documentary references, and advocating against the grant of leave.  As mentioned, both indicated neutral stance and intention not to make any submission in respect of L’s application.  Hence direction for the present application to be disposed of on paper only.

Grounds of the intended appeal

25.The intended appeal, if leave is granted, aims at setting aside the Renewal Order or alternatively remitting the case to be heard and decided by the Board.  The proposed questions of appeal are summarised as follows:

(1)  Given complaints and rivalries arise between the family members of LSW and that the proposal of the 4^th daughter would hardly be in the best interests of LSW, the Director has nonetheless blindly allowed the proposal on the caring arrangement of LSW (“the Caring Arrangement”)  since April 2021, and thus failing to discharge his duty under section 59R(3)  of the MHO to consider the best interests of LSW.  The Board had failed to take into account or to give sufficient weight on the Caring Arrangement being against LSW’s best interests in arriving at the Renewal Order, and thus violating sections 59O(3), 59K, and 59S of the MHO.

(2)  The Caring Arrangement transpired and gave rise to difficulty on other family members (except the 4^th daughter and her group)  to pay visit to LSW as the Director had conferred on the 4^th daughter a great power to restrict access to LSW by other family members (“the Access Arrangement”).  Despite various complaints to the Director concerning the Access Arrangement, the Director had refused to follow up, and lacked the capability to take into account LSW’s need to meet all of her children, and thus failing to discharge his duty under section 59R(3)  of the MHO to consider the best interests of LSW.

(3)  The Board in reaching the Renewal Order had failed to give adequate reasons in support of its deliberation despite the fact that the Board had noticed various difficulties and incapability of the Director in being the public guardian of LSW, including but not limited to the above questions (1)  and (2), and merely adopting the views of the Director.

Delay

26.There is no dispute that as a matter of principle, the court must consider the extent of and the explanation for the delay.

27.The intended appeal has been out of time since about 19 August 2021.  L explained that she is a layman.  She admittedly instructed her solicitors who first sent their letter on her behalf to the Director on 10 November 2021 complaining about the latter’s alleged failure to discharge his duties.  She also referred to the temporary closure of the court registry in the amidst of the coronavirus pandemic between 7 March and 12 April 2022.  However, all those explanations being taken into account, there is still much to explain about the lack of action during the time when L could have lodged the appeal after enlisting the assistance of her solicitors.

28.L did explain. According to her, she received the response from the Director to her formal complaint, and decided to give him more time to see if the situation would improve.  The response of the Director referred to was dated 3 December 2021 whereby he essentially stated that he was given the powers to safeguard the best interests of LSW and would continue to follow up her welfare needs as appropriate.  That was all.  What about such response to the specific complaints contained in her solicitors’ 3-page letter then which would cause L to put her action on hold is simply not obvious.  L also explained her concern about legal costs.  However, all those explanations, even if accepted, remained matters of her conscious decision not to act even after obtaining legal advice.  They per se could not be said to amount to sufficient explanation.

29.That said, in view of the nature of the matter before the court having bearing on the best interests and welfare of a mentally incapacitated person, I consider it prudent for the court to also consider the merit of the intended appeal instead of denying the application on the ground of unjustified delay alone.  Each case of course depends on its own circumstances.

Merits

30.Insofar as merit is concerned, there is no dispute that the intended appeal must have reasonable prospect of success or that there are other reasons in the interests of justice that the appeal should be heard: see WKP (above).

31.The court has said that guardianship applications and reviews should primarily remain matters for the Board to decide.  It is only where a question of law arises or where the particular application raises a special matter that merits the court’s attention or possible intervention that the court should take it upon itself to decide the matter: see Re L, HCMP 1327/2007 (20 September 2007)  at §50.

32.By the same token, the consideration in an application like the present one is never for the court to form its own views of first what the guardian should have done in the circumstances, and second whether the mentally incapacitated person should continue to be put under such guardianship.  What the court should consider is what information and evidence were before the Board and whether or not the same reasonably afforded the Board with the basis for its decision.  In case of appeal on question of fact or one of mixed law and fact, the test is not whether the court would be minded to come to a different decision from that of the Board, but whether no rational and reasonable Board would have come to such decision being challenged.

33.Be it easy or difficult, every case concerning the welfare arrangement in the interest of a mentally incapacitated person under guardianship involves collective understanding and co-operation amongst the family members of that person. Unfortunately, this was from the outset a difficult case, and every child had his or her part to play in contributing towards that.  It was against this reality that rationality, empathy and balance would be expected of the Director in discharge of his duties as the public guardian and of the Board in reaching its decision in making the Renewal Order.

34.The following information and circumstances were before the Board at the hearing in July 2021:

(1)  The information taken into account by the Board started with the social enquiry report dated 8 January 2020.

(2)  Notwithstanding clarification with and confirmation by the children in respect of the huge volume of email messages sent or copied by the children to the Board up to the review hearing that they would not be relied on, the Board invited those attending to describe the information in their presentation at the hearing if necessary.

(3)  The circumstances reported and explained in all the documents before the Board when the Order was made in July 2020 were taken into account.

(4)  Reports on the up to date living arrangement and care plan of LSW dated 24 March 2021 and 16 April 2021 were considered.  So were the progress social enquiry report dated 28 May 2021 and the supplementary report dated 12 July 2021.

35.The children were given the opportunity to respond to the above reports.  Their denials and scepticisms aside, the reports more than adequately reflected the persistent divergent views and expectations of LSW’s children as well as the Director’s constant assessment of the caring needs and accommodation arrangement of LSW.  Intervention to facilitate understanding among the children was attempted.  What the Director endorsed to be currently put in place for the care of LSW was the result of these efforts.

Intended grounds (1)  & (2)

36.L argues that the Director adopted the 4^th daughter’s proposal as to the caring arrangement of LSW as a result of the complaints and great stress exerted by the 4^th daughter.  That happened notwithstanding various complaints of the other children on the arrangement that it would not be in the best interests of LSW.  The Director was said to have failed to consider alternatives.  Hence his failure to discharge his duty under section 59R(3)  of the MHO.  As such, the Director was not in a good position to continue to act as the guardian of LSW, and the Board erroneously decided to continue that by the Renewal Order.

37.As mentioned, the information and circumstances before the Board were presented not only by the Director but also the children.  They revealed a diverse range of opinions on LSW’s caring and accommodation arrangement.  None was welcome by all, and the children were not seen to be ready to compromise.  Allegations and, in some cases, instances of effectively exclusion arose.  The pattern of conflicts had adversely affected the formulation of a long term care and welfare plan for LSW.  Meanwhile, the contact between the Department and the children, as the circumstances permitted, failed to facilitate resolution.  Mediation was rejected by the children on the ground that it was not going to be productive.

38.L complains that the caring arrangement gave rise to difficulty to the children other than the 4^th daughter to have access to LSW for visiting purpose.  She blamed the Director for giving such power to the 4^th daughter to restrict access to LSW by the other children.  The Director is said to have refused to follow up their complaints, and to have failed to resolve the dispute regarding the access arrangement.  In the circumstances, the Director is said to have again failed to discharge his duty under section 59R(3). Whilst not in a good position to continue to act as the guardian of LSW, the Board nevertheless made the Renewal Order.

39.Regarding access to the mentally incapacitated person, section 59R(3)(e)  permits a guardian to be conferred power to require access to the person to be given, at his or her residence, to any medical practitioner, social worker or other person as may be specified in the guardianship order.  However, power could not be conferred on a guardian to restrict access to the person: see LWY v Guardianship Board [2009] 3 HKLRD 30 (at §§25; 34).  The Director acknowledged that, and has so far caused social workers to make repeated efforts to handle the children’s disagreement on access and visit to LSW while the accommodation arrangement rested with the 4^th daughter.

40.According to its reasons, the Board was clearly aware of the circumstances when it was reviewing and considering the renewal of the Order.  Specifically, the social enquiry report dated 8 January 2020 consisted of annexures setting out the stances of the children on the dispute among them in detail.  The Board was fully acquainted with the subsequent and persistent disagreement among the children in respect of the issues of diabetes and diet control, medical and dental treatment plan, hearing aid, access and visit concerning LSW as well as, financial dispute of minor relevance.  The Board was acutely aware of the mutual distrust and the toll it has taken on the care arrangement of LSW.  The Board observed that the conflicts were deep seeded and the children continued to fight for the appointment of a private guardian, and opposed the others to be appointed, in the belief that once appointed, he or she would be put in position of legally overriding the views and actions of all others regarding the affairs of LSW.  The observation was not without basis.  Nor could any of the children deny that.

41.Notwithstanding such observations, how the Board treated these circumstances in its assessment was of significance.  In my judgment, there is much about the Board’s explanation of its assessment which the children should have appreciated but were apparently too subjective to do so.

42.In its explanation, the Board was conscious of extending the greatest understanding towards the undoubted good intention of the children, albeit siding with each other in opposing groups, to care for their mother.  The Board studied and understood the positions of L, the 4^th daughter and the 10^th son in respect of their intended personal charge of care of their mother.  All of them were given the opportunity prior to and at the reviewing hearing to respond to their mutual accusations.  Whilst making clear its scepticism about some of the stances and approaches of the children, the 4^th daughter included, the Board was cautious enough to place emphasis not on blame but on the need for the involvement of all the children and their willingness to listen as well as to step into one another’s shoes to understand that all of them have equal rights towards expressing care and attention to their mother.  Unless there was clear evidence of harm, none of them should exclude the others from showing filial love to their mother.

43.With references to concrete incidents and arrangements explained in the Director’s reports and the children’s complaints, the Board gave its assessment on the possible positive and negative views about them.  Regarding the care arrangement, the Board stated its assessment on the attention to treatment and concern about food intake of LSW.  The difficulty and concern about the implementation of the accommodation arrangement were acknowledged.  Regarding the access arrangement, the Board borrowed what the court said in the case of Re CML [2020] 3 HKLRD 481, which counsel for L also cited, and emphasized the importance of ensuring access at the residence of LSW by applying the same standard to whichever child or children would be taking care of her.  Supervised visit could be motivated by good intention but must be implemented with compassion and understanding and openness.  The ends would be to attend to not only the health but also the psychological, social and family needs of LSW.

44.The circumstances caused the Board to form the following further views:

(1)  Appointing an applicant as the private guardian in this peculiar situation would result in more complications as the private guardian’s decision would very likely be challenged by the other children.

(2)  Complaint by the children of opposite groups against the private guardian would unlikely be perceived as fairly, openly or properly investigated and addressed, and hence further conflicts and jeopardy of the interests of LSW.

(3)  Past efforts of a child towards giving care to LSW would not necessarily entail his or her appointment or continual appointment as the legal guardian.

(4)  The reality is that any one of the applying children would be incapable of acting as a guardian under section 59S(1)(b)  and (c)  of the MHO.

(5)  The only way to ensure LSW’s welfare and best interests would be to entrust her to a neutral party.

45.It was upon the above assessment that the Board formed the view that there was no appropriate person, the applying children of LSW included, available to be appointed as her private guardian.  The conclusion in line with the requirement that the Director should be appointed as the public guardian of LSW followed.

46.In an acute family conflict case as difficult as the present one, there is in my judgment no basis for contending that the Board made the Renewal Order without any or adequate consideration of the circumstances.  Nor is there basis for contending that such decision fell short of a rational and reasonable one which any reasonable board would have reached in the circumstances.

Intended ground (3)

47.The argument that the Board failed to give any or adequate reasons for its decision to make the Renewal Order, in my judgment, is without merit.

48.In §§43 and 44 of the Reasons, the Board accepted and adopted the views and recommendations set out in the progress social enquiry report and supplementary report mentioned above as its reasons for continuing to receive LSW into guardianship and to appoint the Director as her guardian.  However, it will not do the Board justice if one ignores the basis on which it did so, which the Board did explain.

49.After noting the circumstances known from the various reports and stating in detail the respective stances of the children of LSW, the Board referred to the views of the Director.  The Board continued (in §42)  to explain in some 16 subparagraphs its evaluation of the circumstances surrounding the caring and accommodation arrangement and access of the children to LSW as well as the conflicts arising out of them during the term of the Order.  The evaluation appealed to this court as being as objective as the Board could be in the circumstances, given that it was not there to make findings to resolve factual dispute arising out of the mutual accusations of the children.  As mentioned, the Board was acutely aware of the difficulty, to which the children contributed, including the 4^th daughter who was entrusted with the major daily care of LSW.  The Board also recorded its concern about the various aspects of the care arrangement of LSW, which, if the children would be willing to take on board constructively, were believed to be conducive to their adopting proper stance and approach than before for improving the situation in the interest of LSW.  It was upon all these explanations that the Board finally came to its adoption of the views and recommendations made by the Director as explained in §§43 and 44.  Hence the Renewal Order.

Other reason in the interest of justice

50.Essentially, it is argued that it is empirically unrealistic to expect any improvement in terms of consensus or co-operation amongst the children, and the Director has been proved to be incapable of changing that.  Therefore, the Board should have considered, or should now consider, whether to leave the care of LSW back to any of the children or to receive her into guardianship but under any of them instead of the public guardian.  It is argued that appointment of a private guardian in any event would not be worse than the current situation.

51.Issue of proper construction of section 59S(2)  of the MHO is raised.  It is argued that the section plainly prefers a person other than the Director to be the guardian of a mentally incapacitated person.  It is argued that the lack of mutual trusts and co-operation of the children of LSW per se does not render any of them inappropriate as guardian.

52.Section 59S(1)  sets out the criteria of a proposed guardian  which must be satisfied before he or she may be appointed as a guardian of the mentally incapacitated person.  One of the criteria is whether the interests of the person will be promoted by the proposed guardian.  Whether that will be achieved must be an objective assessment.

53.The consideration of the appropriateness of a person as a guardian under section 59S(2)  is multi-faceted depending on the circumstances of the case, and therefore may exceed the consideration of the criteria set out in section 59S(1).  In certain circumstances, neutrality of the proposed guardian would be key to ensuring the meaningful and objective assessment of the best interests of the mentally incapacitated person.

54.The present case originated as one initiated by the respective applications by L, the 4^th daughter and the 10^th son for becoming a guardian of LSW against the backdrop of agrimony and intense dispute amongst them on the proper care plan for LSW.  The known circumstances were, and somehow still are, that each of them is prepared neither to back down from objecting to each other’s proposed care plan nor to work together, with give and take, towards a mutually acceptable care plan.  All of them held tight their respective views of the matter from their perspectives.  These are fairly and squarely circumstances highlighting the significance, if not inevitable consideration, of the need for a neutral party to facilitate, oversee and monitor the arrangement to be put in place for the best interest of LSW.

55.What such a third party possesses, as distinct from any of the conflicting children, is the position of being neutral in the objective assessment of the different arrangement proposals and alternatives concerning LSW.  What is expected of such a party are not necessarily decisions which would be liked by all the children.  The decisions upon the objective assessment by such party in the neutral position may turn out to be endorsement of the entirety or part of the proposals of any one of the children or none of them.  That however is not the point.

56.Such neutral party could be a private candidate.  However, the children have apparently never ever perceived that other than themselves as a private guardian.  The Board took the view that none of the applying children could be viewed as being in such a neutral position.  It was in such context that the Board concluded and, upon review, maintained that there was no one who would be appropriate for appointment as the guardian of their mother.  Pursuant to section 59S(2), the Board was required to appoint the Director as the public guardian in the circumstances.

57.It follows that condemning the Director as a failure in the discharge of his duties as the guardian on the basis that he effectively endorsed the care plan proposed by the 4^th daughter and has not managed to resolve or reduce the disagreement amongst the children as a result is neither correct nor fair.  Nor is it correct to attribute flaw to the Director’s discharge of his duties for failing to arrange provision of sufficient public care for LSW instead of endorsing the proposed care plan of any children that was bound to be disliked by some.

58.It should also be noted that the Director has indeed arranged for LSW to be put on the waiting list for a sub-vented nursing home placement under the Long Term Care Services Delivery System.  However, the children expressed their competing wish and strong capability to accommodate and to take care of LSW instead of deferring her to residential care.  As revealed before the Board, the Director has been making repeated efforts to facilitate the realisation of such apparent good wish of the children.  That the persistent competition and mistrust amongst the children have so far compromised the potential of such efforts is simply undeniable.

59.The criticism against the Director in terms of his lack of resources for the discharge of his role as the public guardian is escalated to become an issue of general importance for the purpose of this alternative ground for leave to appeal.  In her affirmation, L observed that the present case is simply the tip of an iceberg of many more suffering and vulnerable elderly within the territory who rely on our social welfare system and the Director as their public guardian to take care of their interest and affairs.  Her counsel apparently endorses such observation in her submission, and refers to the comment of the court in SPLP v Guardianship Board [2019] 3 HKLRD 670 (starting from §32).  The intended appeal, it is argued, should be heard so that the court can give authoritative guidance to the Board when it decides whether a public or private guardian should be appointed, to take into account the resources available and to explore the competence of individual family members who are keen at taking care of the mentally incapacitated person instead of taking the immediate view that public guardian should be appointed in any case involving some rivalries between family members.

60.SPLP was a case where the Board decided to renew the guardianship but refused to re-appoint the private guardian of a mentally incapacitated person on the ground that the guardian failed to render proper financial accounts.  Contrary to the recommendation of the Director, the Board appointed the Director as the public guardian instead.  The court disagreed with the Board that a lay private guardian who was not acquainted with accounting or bookkeeping and had to depend on the assistance and instructions of the Director should take all the blame for the failure in the absence of wrongdoing.  Clearly the circumstances of that case could not be the basis for counsel’s reliance on it for the present purpose.

61.The court in SPLP took the opportunity to state his observations about the inadequacies of the existing system relating to the welfare of mentally incapacitated persons.  However, his focus was the cases where the committees appointed had great difficulties in complying with the obligations imposed by the court in discharge of their duties as well as the burden of supervision on the court and its effectiveness.  Hence recommendation for enhancement of assistance to the family members and the steam-lining of the legal process of the appointment of guardians and financial managers for mentally incapacitated persons.  The analogy which counsel seeks to draw from that case for the purpose of the present intended ground of appeal is not proximate.

62.Further, what was envisaged by the recommendations made by the court in SPLP may have to be a comprehensive social and legal study and, as it may become, reform.  Yet insofar as the circumstances of the present case are concerned, no one would argue against the existence of room for improvement in accommodating the welfare of mentally incapacitated persons like LSW not so much in terms of the resources and provisions of the Department but really co-operation of the family members.  Demonstrating his further efforts towards that end, the Director has exhibited a couple of progress reports to the Board on the up to date arrangement for LSW and her condition subsequent to the Renewal Order as his continuous effort in discharge of his duties.  For the present purpose, this court is not minded to, and should not, refer to such new evidence not before the Board at the time when the Renewal Order was made: see WKP (above)  at §§20-22.

63.L seeks to categorise the present case as one demonstrating the inherent weakness of the social welfare system in the territory where the inadequacies of the Director as the public guardian have allegedly put the interests of LSW at risk, and thus one for appeal on the ground of interest of justice.  This is in my judgment attributing responsibility without due regard to the fact that success and failure in the circumstances of the present case have hinged, and will continue to hinge, upon all the key players, each and every children of LSW included.  That is the reality in the present case, but was not quite what caused the court to say what he said in SPLP.

Conclusion

64.Be it on law or to the extent on facts, the intended grounds of appeal, I find, do not have reasonable prospect of success.  Leave to appeal out of time is thus refused.

Order

65.The application for extension of time for appeal and for leave to appeal, to the extent as it is necessary for question other than that of law, is dismissed.

66.This court proposes to make no order as to costs of the application, including costs reserved.  This is nisi, which will in the absence of application to vary in 14 days, becomes absolute without further order.

67.This court sees value in publishing this judgment.  Names, including that of L, will be anonymised for such purpose.  The parties have 7 days from the date hereof to provide any comment on the necessary redaction, which this court will consider and decide before publication of this judgment.

Written submissions by Ms Lilian Ip, instructed by Huen & Partners, for the appellant

Attendance of the 1^st Respondent was excused

Attendance of Department of Justice for the 2^nd Respondent was excused