Sg v. Gdv

FCMC 10217/2020

[2023] HKFC 106

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 10217 OF 2020

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BETWEEN

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Extempore Decision
(Schooling)

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1.This is an extempore decision as time is of the essence for parties to confirm schooling arrangement for the upcoming school term for the 2023-2024 school year.

2.Before me are two applications:

(1)  The Petitioner Mother’s (“M”) Amended Summons dated 29 July 2022 for her to (i) apply for schools in HK and (ii) enrol the children as she sees fit.

(2)  The Respondent Father’s (“F”) “Temporary Removal Summons” dated 11 May 2023 to take the children for schooling in the US. This was filed very last minute but I have decided to consider this Summons at the same time due to the subject matter.

3.There are two children of the family, namely L aged 13 and P aged 11. L resides with F, and P with M.

Relocation Judgment

4.There is quite a bit of history to these applications, the most relevant information is contained in my Relocation decision made on 9 January 2023 (“Relocation Judgment”) when I turned down the F’s application to remove the children permanently to the US; and refused his application for leave to appeal in my decision on 24 May 2023. 

5.This decision to the School Summons should be read in context with my Relocation Judgment, the background to this matter is contained therein.

Discussion

Finances

6.I started today’s hearing with asking F to confirm who will be paying for the schooling for the children if his application is granted. He says that he will find a lowly job, like selling pizzas, to put the children in that school; and if he is unable, his family will assist with the US tuition.  I also asked that he confirms whether he will be paying for international schools in HK, he says no, as he cannot afford it.

7.I have then turned to W’s counsel to seek confirmation that should international schools be not viable, whether M is happy to pursue free schooling in HK, and this is confirmed.

8.I made my observation thereafter that I do not believe the financial situation of the parties is very relevant to these proceedings before me today; and the parties should focus on the schooling arguments instead.

F’s Summons

9.F has applied to temporarily remove the children for schooling in the US.  He has provided information on the school which he intends to enrol them into, and also said that the full tuition will be supported by his family.  I note here that he says in oral evidence today that he has already enrolled the children into this US school. I am not sure if this was discussed with M, as they have joint custody of the children; but her counsel says not.

10.In my view, the F’s Summons hard on the heels of my Relocation Judgment and his application for leave to appeal speaks volume on his intention.  To understand this, I should briefly state the reasons for my refusal to the F’s permanent removal application, inter alia:

-  I found that F, with his application, intends to separate M from the two children by moving to the US

-  I found on expert evidence before me at trial, that M will have substantial difficulty in entering US with her Kyrgyzstan passport and background; and her US visa has since expired in December 2022

-  I found that F, in particular, has involved the children into their litigation, and also continues to make denigrating remarks of the M in front of them.  His conduct has caused rifts between L and M, and forces young P to be in defence of M against L when they meet, no doubt creating emotional tension and stress.  In my view, M has been reactively coping with this and needs to deal with her very difficult relationship with L, incited by F.

11.F intends to go to the US with the children should his application be granted; he therefore asks for interim care and control, and says he will be staying in his Mother’s home in the US.  F takes a substantial time in his oral submission addressing his financial situation (despite my comments), and insist that it is very relevant.  He says that he is facing bankruptcy, will not be able to resume certain employment, his lease is coming up and they will be “out on the streets”.  With these submissions, it further reinforces my serious concern that he will not be returning with the children at all to Hong Kong. He has no ties here, he is facing all these financial issues and High court litigation, he kept calling US a safe haven; my question would be, once he leaves, why should he come back?  And as W’s counsel rightly submits, if that happens, M has no means to pursue an application to bring the children back. 

12.Reminding myself of the reports I read at the relocation trial, I am also conscious that P has strong emotional ties to M, who has all along been his carer; taking him away from M, even for a short term, will have adverse psychological impact on him in the midst of the loyalty conflicts that are going on with the children.

13.M’s counsel criticizes F’s case on the following points:

-  F sought to re-argue his permanent removal application, challenging previous findings of facts, and that F is only repeating “old arguments dressed up in new ways” (quoting the case of Re J (Children: Reopening Findings of Fact) [2020] EWCA 1685). 

-  F brought up a Statutory Demand of a debt he owes to a law firm, but counsel argues that this is a debt in existence at time of the relocation trial which he chose not to pay.  F says today it was a disputed amount, be that as it may, it was an old debt.

-  F then cited that he has visited in person to the US consulate in HK and was told by a “Senior US Consulate Officer” that M would have no issue renewing her 5-year visitor visa.  Counsel says this is hearsay and question the likelihood of an official giving such comments.

-  F only offered two return flights to the M and ½ hour per day remote access to the children, Counsel reminds me that this is even less than what he proposed at the permanent relocation trial.

14.I agree with the above submissions, and find in particular the reference to an unknown US consulate officer mere “say-so” on the issue of visa renewal to be unacceptable hearsay evidence, on which I cannot place any weight.

15.Counsel argues that H’s case shows no change of circumstances since the trial and I agree.  In fairness to the H, he says there has been instances of abuse by the M to the children, in particular to L; but then he says he still sent L to see her and leave them to it.  These are allegations which have yet to be aired in upcoming hearing, and will not feature into my discussion today. 

16.M’s counsel in his written submission made relevant references to paragraphs in the Relocation Judgment where some of the above arguments were dealt with by me, including but not limited to expert evidence, F’s proposal for M’s access, children’s dynamics with parents as observed by the SWO and the clinical psychologist.  These references are adopted herein.

17.I am of the view that this is an application to remove the children permanently from HK dressed up as a temporary removal for Schooling Summons.  As mentioned in my Relocation Judgment, I have serious reservations on F’s credibility; and have no confidence that M will have access to the children if they depart.  F’s oral submission asks for “ironclad” protection Order for M’s access which he claims will be recognized in the US; again, if M will have issues entering the US, it will be an “empty” Order.

18.M’s counsel submits that the children must remain in HK, for a chance for L to recover his relationship with M, and to ensure that P will feel safe in the continuing care of M.  I agree, best interest of the children considered, and for the reasons mentioned above, and those analysed in the Relocation Judgment, I therefore dismiss the F’s Summons. 

M’s Summons

19.The children had previously been enrolled in an international school, X Academy.  F’s claim on poverty resulted in him not only failing to pay maintenance to M and tuition for the children as ordered by this Court; he has enrolled L, who is under his sole care and control, into an internet learning course; which is one of the reasons that prompted M’s Summons.

About L

20.L has since his graduation from Grade 7 at the X Academy in June 2022, been placed on internet schooling called Y Online Academy, because F says the course fee is more affordable.  According to the SIR, L appears to be attending Grade 7 and obtained a certificate of distinction of high standards and excellence during the fall semester of 2022 to 2023.  F says L has online class for about 6 hours per day. 

21.This is objectionable on several grounds:

(1)  F is in breach of the laws of Hong Kong by placing L on internet learning

The Education Ordinance (Cap 279) requires children before the age of 15 to attend physical school.  F is in breach of Hong Kong law, and may well face criminal sanctions if this persists.  Especially as elaborated below, he has now been informed of the law by an Officer of the Education Department.

(2)  L’s behaviour as recorded by the SIR and Psychologist Report demonstrates the need for interaction with peers

Referring back to previous reports before me at the Relocation trial, L is recorded to idolize his father, has no friends and does not feel he needs any as he has his father, and has difficulty accepting opposing views and negative feedbacks from others. F says in court that L has friends from his extracurricular activities.

I continue to place reliance on these reports and find L’s situation highly irregular, and there is clearly a need for L to be extracted from this enmeshed relationship with his father, and develop his own personality and independence.

(3)  M says L attends this Y class time from 9pm to 2 am and stays up till 5 am HK time and sleeps till 2pm.  M also produced Y class schedule indicating that class is for 8am - 4pm EST.  This is an unhealthy routine for a child.

W’s counsel also made two further points: On F saying that L has “special accommodation to meet with teachers and students before 11pm HK time”, no evidence has been produced before me to support this special accommodation treatment for L.   H also says that Y offers “anytime, anyplace, anywhere” asynchronous learning, which must mean that L is merely watching videos, and not interacting with teachers or other students in real time.  In the absence of evidence to the contrary, I accept these submissions.

(4)  Best interest of the child must dictate that a child of L’s age should be learning in a community setting, and not just sitting at home facing a computer.  F calls it an “amazingly flexible private education schedule, which allows for self-study and self-discipline which [L] greatly enjoys.”  I disagree, a child of L’s age needs to learn discipline in a proper school setting, and in the context of social interaction with peers, practise responsibility and mutual respect.

(5)  Not having funds to put L in school is not an acceptable reason

W’s counsel in written and oral submission today draw my attention to the basis upon which the H has financial means to put the children into private schools, which the H obviously denies.  I was also reminded that the grandmother has in the relocation trial offers to pay ~HK$45,000 (equivalent) to support the children, although she did say that she would only do this if they are in the US, which I find hard to accept.  These were covered in the Relocation Judgment already, and will not be repeated here. 

Besides the point that it is not accepted that the H has no financial means, (as I so found in the Relocation Judgment), I am of the view that this is a mere litigation tactic on his part.  Putting L into internet learning class supports his case that he has no money, and also isolate L from his peers and keeps him by his side. 

As to F continuously saying he has no means to pay for private school, I refer to the contents of the SIR below as to other school options that the children have.

About P

22.When F failed to pay for tuition fee for P, M was able to continue to put P into his current school by selling her diamond engagement ring to pay for his tuition.  According to the SIR, he is doing well in school.

23.F told the SWO that he intends to enrol P to the same Y online course as he cannot pay the tuition fee at the current school.

24.M’s case acknowledges that the children studied at international school prior, and thus preferred, she therefore put down ESF schools on her list; but she also knows that F will continue to plead poverty and not pay for tuition.  It is her case that should he thinks so lowly of the HK local schools, he can find the means to pay for international school tuition here, even finding the support from grandmother if need be.

25.While F has spoken ill of the local schools and said that it is not “internationally accredited and of low quality”, M believes that putting children into local schools which caters for an English speaking curriculum is a good option, and she is encouraging of the children to integrate with others of different socio-economic background in a local school setting. 

26.It is unfortunate that F has such low opinion of the local schools in Hong Kong, I agree with the M’s position that as children who spent almost their whole lives here, it should be a good learning experience for them to integrate into the community by experiencing the local schools and meeting people from different background.  I therefore fully support M’s position in enrolling the children into the local schools as an alternative, and that she has the right to make these decisions alone as F is likely to be obstructive.

SIR on this Issue

27.I directed that a SIR be prepared to look into M’s Summons.  The SWO has referred L’s case to the Education Department on his schooling status.

28.According to the SWO, a Ms L of the Education Bureau has informed F that children under 15 years of age enjoy free education in Hong Kong.  F was also provided with information on public schools which could provide English syllabus and accept non-Chinese speaking students.  The Education Bureau has also indicated that they would provide support to assist with school placement when needed, but private international school fees are to be borne by the parents themselves.

29.Ms L has also explained to F that L is required to attend physical school before the age of 15 and that the current school arrangement at the internet course could not be accepted as an alternative school measure and has failed to meet the requirement under the Hong Kong law.  Apparently, F told Ms L that the internet course is an “interim measure before his appealing of the case on relocation to the US”.  Ms L told F that there will be follow up action on L’s school enrolment progress. 

30.W’s counsel helpfully provided information that contravention to the Education Ordinance is an offence punishable by fine and imprisonment.

31.Addressing his point on appealing of the case on relocation, I have refused leave to appeal my decision on the issue of relocation.  I am not aware what other actions F seeks to continue on this track, but in the meantime the children must be enrolled in proper schools, and attend classes physically.  This is clearly in line with the laws of Hong Kong and no alternatives could possibly be considered.

32.Father says the Family Court cannot “simply wave a magic wand” to order what people cannot afford to pay for.  To this I say, the family court can make an order for people to pay, and there will always be people who chose not to, and consequences will ensue with due process.  We are lucky in HK that we have free education to offer to children, and on this, M must make haste to proceed with the necessary applications in the best interests of the children.

33.These applications have required a delicate balancing exercise on my part.  F’s proposal of quality education in US and my belief that the M will be out of the children’s life if they leave; and on the side of the scale, is that the children can receive quality education in HK, with the M in their lives.  I chose the latter.

34.As a corollary to her application, the mother also seeks the following, they are sensible Orders to seek in order to enable to M to enrol both children into schools, and I therefore make orders in those terms:

Orders

35.Orders:

(1) P shall be at liberty to apply and to enrol the children of the family (“the Children”), namely, L, a boy born on XX August 2010 and P, a boy born on XX October 2012, in schools in Hong Kong as she sees fit;

(2) R do provide L’s school reports to the P forthwith;

(3) R do hand over L to the P for any school interview;

(4) P be permitted to provide a copy of this order to schools for the purposes of making applications and enrolling the children in schools.

Costs

36.This is no reason why costs should not follow the event for both summonses. The costs of the M’s Amended Summons dated 29 July 2022 and the F’s Temporary Removal Summons dated 11 May 2023 be to the Petitioner M.   

37.The costs for both Summons shall be taxed in accordance with Legal Aid Regulations; there shall be certificate for counsel.

38.Last but not least, this Court thanks Mr Marwah for his able assistance in these proceedings.

For Petitioner: Mr Shaphan Marwah instructed by Boase Cohen & Collins assigned by Director of Legal Aid

Respondent: Acting in Person