Cn v. Lyp

CACV 325/2023, [2024] HKCA 154

On appeal from [2023] HKCA 1173 & [2023] HKFC 73

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 325 OF 2023

(ON APPEAL FROM FCMC NO 2915 OF 2020)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.On 11 October 2023, we gave our judgment[1] (“the CA Judgment”) allowing the respondent’s appeal from the judgment of HH Judge E Liu on 24 April 2023[2] in which she allowed the petitioner’s application for an order for the relocation of the two children of the family to Singapore permanently with the petitioner. We set aside the judgment and replaced it with a judgment in favour of the respondent, in which we ordered that leave be granted to relocate the children of the family to Dongguan, China permanently with the respondent. We will refer to the petitioner as “the Father” and the respondent as “the Mother”.

2.The facts of this case and our reasons for allowing the Mother’s appeal were fully set out in the CA Judgment and will not be repeated in detail. In summary, we held that the judge had erred in calculating the education expenses of the children in Dongguan and therefore in assessing the financial sustainability of the Mother’s relocation plan[3]. We also held that the judge had erred in placing little or no weight on the views and preference on relocation of the daughter of the family (“A”), aged 7 at the time[4]. A had expressed clearly and consistently to the social work officers that she would like to continue to live in Dongguan with the maternal grandparents, with the hope that the Mother and her younger brother (“B”), the other child of the family, would join her. In respect of the recommendation of “maintaining the status quo” by a social work officer in one of the social investigation reports prepared for this case, the judge would appear to have misunderstood it. In our view, the judge failed to consider sufficiently the disruptive effect on the children’s lives if relocated to Singapore, in contrast with the continuity and stability in child care and education if they were to relocate to Dongguan[5]. Further, on the issue of maintaining or promoting a co-parenting relationship in the interests of the children, we held that it seems to be in the best interests of the children at this stage of their lives to be relocated to Dongguan with the Mother, with consequential orders to be made for the purpose of promoting and facilitating a co-parenting relationship[6].

3.The Father filed a Notice of Motion on 24 November 2023 seeking leave to appeal to the Court of Final Appeal on the ground that the questions involved in the intended appeal are of great general or public importance which ought to be submitted to the Court of Final Appeal for decision. These two questions (respectively “Question 1” and “Question 2”) are set out in the Notice of Motion:

“1 In determining what is in a child’s best interests in children’s proceedings whether, absent evidence of harm, abuse or neglect, the right of the child to maintain a meaningful relationship with both parents is a primary consideration to be given greater weight than other relevant considerations.

2. Whether a trial judge’s finding of fact as to a child’s maturity in children’s proceedings should be treated the same way as any other finding of fact, only to be disturbed if the Court of Appeal finds that the trial judge was ‘plainly wrong’.”

4.The Father lodged his submissions on 24 November 2023 while the Mother lodged hers on 7 December 2023. Having read both submissions and the papers, as directed in a letter from this court to the parties dated 20 December 2023, we consider it appropriate to determine this application on paper without an oral hearing and proceed to do so.

5.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

6.For the reasons given below, we decline to exercise our discretion to grant leave to appeal as we do not think the questions in the Notice of Motion are of great general or public importance, nor do we think they are reasonably arguable.

Question 1

7.Ms Vivian Leung submitted for the Father that this question is of great general or public importance, as it concerns principles relevant to the evaluation of what is in a child’s best interests, which apply in all proceedings in relation to the custody and upbringing of children under section 3(1)(a)(i) of the Guardianship of Minors Ordinance, Cap 13 (“GMO”).

8.Ms Leung advanced a number of arguments in support of her contention that in determining what is in the best interests of a child in proceedings relating to custody and upbringing, “the right of the child to maintain a meaningful relationship with both parents is a primary consideration to be given greater weight than other relevant considerations”. Her arguments do not appear to be borne out by the authorities she cited.

9.She cited the “Welfare Checklist”[7] asserting that in it, “maintaining personal relations and direct contact with both parents on a regular basis is described as a right of the child”, rather than that of the parent. This is not in fact what was provided in section 3(2) of the Children Proceedings (Parental Responsibility) Bill, which incorporated the Checklist of Factors[8].

10.Ms Leung submitted that a child’s right to have and maintain a meaningful relationship with both parents is fundamental to the child’s long-term welfare, citing H v N [2015] 5 HKLRD 498 at §18. There can be no quarrel with this as a matter of principle. She went on to submit that the courts have shown “readiness to change the status quo of care arrangements and order care and control in favour of the parent who is willing to facilitate access in circumstances where the relationship of a parent with a child is so materially affected by the conduct of the other parent”. In support, she cited the decision of HH Judge K W Wong in RK v YS, FCMP 151/2008, 8 June 2010 at §§231 to 251, with emphasis on the parts she quoted at §§231, 234 and 251. The statements of Judge Wong were made in a case where there was clear evidence of alienation and the emotional well-being of the elder child was severely affected (at §§232, 235). The judge in the present case did not find alienation or selfish motive to exclude the Father from the children’s lives. The rather distant relationship between the Father and the children was due to separation and misunderstanding laboured by A, the lack of opportunity for B to develop a relationship with the Father as he was just one year old when the Father left, and the lack of keenness of the Mother to involve the Father in the children’s lives or consult him on important decisions of the children[9].

11.Ms Leung then made the point that in cases involving signs of parental alienation, the court “has acknowledged the need to take prompt and effective action; to take a medium-long-term view and not to accord excessive weight to short-term problems such as stress to the child caused by a change in the child’s main home”. She said this was explained in the judgment of B Chu J in C v S (Custody, care and control, access) [2021] HKFLR 25 at §13 and gave a rather lengthy quotation purportedly from the paragraph cited. The quotation given by Ms Leung was in fact taken from the decision of the English Court of Appeal in Re S (Parental Alienation: Cult) [2020] EWCA Civ 568 at §13, and was not quoted at all by B Chu J who merely summarised that paragraph in §64(6) of her judgment.

12.Errors apart, the statements of Peter Jackson LJ in §13 of Re S (Parental Alienation: Cult) were made in the very different context of a situation of parental alienation.

13.Ms Leung prayed in aid statutory provisions in the United Kingdom[10] and Australia[11] to make the point that those jurisdictions have recognised that a child’s right to have a meaningful relationship with both parents is a matter that should be afforded more weight than other considerations in evaluating what is in a child’s best interests. In the UK, the statutory provisions give rise to a statutory presumption, the purpose of which is to reinforce the importance of children having an ongoing relationship with both parents after family separation, where that is safe and in the child’s best interests. In Australia, the benefit to the child of having a meaningful relationship with both parents is among one of the two “primary considerations” in determining what is in a child’s best interests.

14.Ms Leung acknowledged there is no equivalent or similar recognition under the GMO or other legislation in Hong Kong that gives rise to such a presumption or any favourable treatment by the law as to the right of a child to maintain a meaningful relationship with both parents. She pointed out the Welfare Checklist routinely referred to by the Hong Kong courts does not expressly prioritise the child’s right to have a meaningful relationship with both parents. She submitted that without clarification by the Court of Final Appeal, the lower courts may adopt inconsistent approaches, with some recognising it as a primary consideration and others regarding it simply as one of the many factors in a basket. She repeated her submissions that in the present case, the judge’s finding there is a real chance that the children would not be able to maintain a meaningful relationship with the Father if they relocate to Dongguan[12] should have carried more weight in the court’s exercise of discretion.

15.While “the nature of the relationship of the child with each of the child’s parents” is among the factors in the Welfare Checklist in determining what is in the child’s best interests, the existing legal regime in Hong Kong does not go so far as to stipulate that the right of the child to maintain a meaningful relationship with both parents is a primary consideration and should be given greater weight than other relevant considerations.

16.It was held in the CA Judgment that “there is no determinative presumption in favour of any single factor” when the courts refer to the relevant guidelines in an application for relocation of a child[13]. It is well settled that the Welfare Checklist is not meant to be applied mechanically to dictate the outcome, and the court may only consider those factors on the checklist which are relevant to the case before it[14].

17.In a relocation application, it is recognised that as a matter of principle, any relocation will necessarily involve one parent not being able to have the same degree of contact with the child than if they are in the same physical locality, but the court in determining the child’s best interests will take into account the opportunity for continuing contact between the child and the parent left behind as one of the relevant factors[15].

18.As rightly pointed out by Mr Edward Chan for the Mother, the guidelines as to the factors to be weighed in the search for what is in the best interests of the child should not be applied rigidly[16]. The approach contended by Ms Leung would likely hinder the courts’ holistic appraisal, which is to have regard to all relevant factors and give appropriate weight to those factors as required by the circumstances of a particular case, to arrive at a decision that serves the best interests of the child.

19.As evident from the CA Judgment, we have given careful consideration to the impact on the Father of a refusal of his application for relocation, that is, the impact on the children’s development of a meaningful relationship with both parents if they were to be relocated to Dongguan with the Mother[17]. We also addressed the issue of co‑parenting by calling upon the Mother with respect to her previous conduct of not involving the Father in important decisions concerning the children, and directed the parties to propose consequential orders to promote and facilitate a co-parenting relationship for the welfare of the children[18]. A consequential order setting out the Father’s defined access and the travel arrangements relating to the children was made on 15 November 2023 by consent of the parties. We are not persuaded that our exercise of discretion was in error.

20.In our view, Question 1 is plainly not one of great general or public importance. Nor do we think it reasonably arguable that absent evidence of harm, abuse or neglect, in determining the best interests of a child, the child’s right to maintain a meaningful relationship with both parents should be presumed to have greater weight, or be taken as a primary consideration, without regard to the context of a particular fact situation. It is not appropriate to give leave to appeal for Question 1.

Question 2

21.Ms Leung argued that Question 2 is of great general or public importance as the view of a child is a mandatory consideration under section 3(1)(a)(i)(A) of the GMO and courts often have to make findings of fact on the child’s level of maturity. She submitted that the parameters upon which an appeal court may interfere with the findings of fact of a trial judge as to a child’s level of maturity are of great general or public importance given the materiality of such findings to the outcome.

22.Ms Leung argued that the “plainly wrong” test should apply for the appeal court to disturb the judge’s finding of fact as to A’s level of maturity, notwithstanding that the judge did not hear evidence from A firsthand or speak to A directly and only made her assessment based on the social investigation reports. This is because the judge had the benefit of receiving evidence directly from the social investigation officers and the parents on matters relating to A’s maturity.

23.In our view, the question raises no issue of general or public importance. The approach of the appeal court regarding challenges to findings of fact, whether primary or secondary, is well settled and no further clarification in this area is required.

24.It is clear from the CA Judgement that we held that the judge was in error in placing little or no weight on A’s views on relocation as we are satisfied that A has expressed her views clearly and consistently despite her young age[19]. Our decision on A’s views did not turn on the interference with the judge’s finding of fact as to A’s level of maturity, but on the social investigation reports and other evidence available before this court in the appeal which we found sufficient for reaching the decision. No question of credibility of the witnesses is involved. Nor is any of the social investigation reports subject to any dispute. It is open to us as the appeal court to exercise our discretion afresh and decide on the proper weight to be attached to a relevant factor in determining what is in the best interests of the children based on the available evidence.

25.We refuse to give leave to appeal on Question 2.

Other matters

26.The Father did not seek leave to appeal on the “or otherwise” ground. Ms Leung drew our attention to two other matters.

27.Firstly, the Father sought to contend that the judge had not misunderstood the recommendation of Ms Lau, one of the social investigation officers. During cross-examination, Ms Lau had clarified what she meant by her recommendation to “maintain the status quo”, which was that both children should relocate to Dongguan with the Mother. This was mentioned in Ms Leung’s closing submission. Secondly, the Father sought to demonstrate his endeavours to provide for and maintain contact with the children despite his financial situation and practical obstacles he faced.

28.It is not apparent to us how these two matters would have any relevance to any of the proposed questions raised or advance the Father’s position in this application. The clarification of Ms Lau and Ms Leung’s closing submission were not brought to our attention at the hearing of the appeal. In any event, we do not think we were in error in taking the view that the judge did not appear to have a correct understanding of the recommendation of Ms Lau of “maintaining the status quo”, for the reasons fully explained in the CA Judgment[20]. As these two other matters are of peripheral importance to the totality of the matters considered and addressed in the CA Judgment, we do not think it necessary to deal with them.

Disposition and costs

29.For the above reasons, we dismiss the Father’s application for leave to appeal to the Court of Final Appeal.

30.We order the Father to pay the Mother’s costs of this application and the Mother’s own costs are to be taxed in accordance with the Legal Aid Regulations. Having considered the Mother’s statement of costs for summary assessment, the costs of the Mother are assessed at $100,000.

Ms Vivien Leung, instructed by Ip & Heathfield, for the Petitioner (Applicant)

Mr Edward M H Chan, instructed by Ellen Au & Co, assigned by the Director of Legal Aid, for the Respondent (Respondent)