Y v. L
Read the full judgment text of FCMC 695/1995 on BabelCite. This Family Court judgment was delivered on 9 October 1998 before H.H. Judge Bruno Chan.
District Court – Matrimonial Causes – Child Welfare – Education – School Change – Best Interests – Social Welfare Report – Custody – Marymount Primary School – Kennedy School – Status Quo – No Order as to Costs – Father's application allowed; child to remain at current school
Legal issues: Best interests of the child regarding school change
Outcome: Father's application allowed; S to continue at Marymount Primary School
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FCMC000695/1995 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES SUIT NO. 695 OF 1995 --------------------
-------------------- Coram: H.H. Judge Bruno Chan in Chambers Date of Hearing: 17, 18 and 22 September 1998 Date of Handing Down of Judgment: 9 October 1998 _______________ J U D G M E N T _______________ 1. This is the Respondent Father's application for an order that his 9 years old daughter should continue her study at her present school Marymount Primary School, a local streamed school, until completion, instead of transferring to Kennedy school, an international school of the English School Foundation, as intended by the Petitioner Mother. In effect the parties are asking the Court to decide on their child's schooling and education. First some background information and history of the case are appropriate. 2. The parties were married on 28th March 1989 in China, the Father being a Hong Kong resident whilst the Mother then a resident in Da Lian City, China. There is one child of the marriage, S a girl born on 14th July1989 who is now 9 years old. She was born in Hong Kong when her mother visited Hong Kong in 1989. After her mother returned to China, S was placed in the care of her paternal grandmother and a Mrs. Kwok, a close friend of the Father's family, in Macau while the Father lived and worked in Hong Kong. In 1991 the Mother was allowed to settle in Hong Kong with the Father and in 1992, S who was then 3 years old returned to Hong Kong to live with her parents. 3. Despite the re-union of the family, the marriage did not work out and on 25th January 1995 the Mother filed for divorce against the Father on the basis that they had lived apart for at least 2 years since about September 1992 with the Father's consent, as the law there was. In her petition the Mother sought custody of S with whom she was then residing and for ancillary relief including periodical payments and lump sum. 4. On the basis of a Form 4 which was signed by the Father acting in person and consenting to the divorce as well as the Mother's proposal for custody and maintenance, the decree nisi of divorce was granted on 31st August 1995 with a consent order that custody of S was to the Mother and that the Father was to pay the sum of $15,000 per month as maintenance being $5,000 for the Mother and $10,000 for S. The decree nisi was subsequently made absolute on 17th October 1995. It was however not to be the end of the parties' litigation. 5. On 17th October 1996 the Mother married her present husband Mr. M, an American who works in Hong Kong and who has 2 children from his former marriage, aged respectively 8 and 10 years. Shortly thereafter the parties started to launch series of applications to Court including an injunction by the Mother to restrain the Father from removing S from the jurisdiction of Hong Kong, and the Father's application for variation of S's custody on the ground that he had been tricked and cheated by the Mother in her divorce. In fact the Father did at one stage bring the matter to the Court of Appeal for leave to appeal against the decree of divorce out of time which was, as I am told, unsuccessful. Eventually the parties were able to settle the custody dispute on 27th March 1997 and an consent order was made in that S was to remain in the custody of the Mother with various defined visiting and staying access to the Father. Thereafter there were various applications by the parties to take S out of the jurisdiction for holidays, and then on 4th August 1998 the Father issued the application which is now before me. 6. The application was at the outset strongly opposed by the Mother and had to be adjourned for full argument and for an education report to be prepared as a matter of urgency by the Social Welfare Department. Both parties have filed their affirmation in support of their respective case and were extensively cross-examined at the hearing, as was the Social Welfare Officer. 7. The Mother's case is that as she has taught as a language teacher at Carmel School, an American primary school for 4 years and more recently at West Island School, an English School Foundation School, for the past 3 years, she is experienced in schools in Hong Kong and believes that it is in S's best interests to move from Marymount Primary School, a local school where she has been since 1995, to Kennedy School which she believes has a number of advantage to Marymount. 8. The Mother says that Kennedy School, in comparison with Marymount, offers lower teacher/student ratio, better facilities and extra-curricular activities which include yearly trips to camp and overseas all of which will benefit S better. She believes there is much better individual care at Kennedy than Marymount, citing an example that S's current teacher at Marymount did not even realise until the last week of last school term that S could speak 3 languages, namely Cantonese, Mandarin and English which illustrates the lack of individual attention provided by the school. 9. The Mother also feels that the teaching method of Marymount, which focuses on examination, large amounts of homework and note memorisation can be improved. At present she thinks S is spending too much time doing homework everyday to have any proper play or activities with her siblings. She thinks that it is in S's best interest to be a student in a learning environment such as Kennedy School that promotes imagination, creativity and academic excellence, and that S will be able to obtain a much more well rounded education from Kennedy School. 10. The Mother says that due to different system, there is no guarantee that S will be given a place in the secondary school at Marymount, a lot will depend on her examinations' results, whereas students at Kennedy Primary school are guaranteed a place in an English School Foundation Secondary School. She also claims that the placement record from English School Foundation system includes many excellent universities in Asia, Europe and America, and despite the different system, according to a letter produced by her form the English School Foundation, about 20% to 30% of students at Kennedy School take up tertiary places in Hong Kong. 11. As S's 2 half siblings attend Kennedy School, the Mother feels that if S joins the same school, she will be able to attend activities and functions with her siblings which will contribute positively to her development. Furthermore, this will mean that all 3 children will have the same school hours and holidays, which is not the case at present due to their different school system, which will make the family management as to activities, travel and holiday arrangements easier. As they now live in Pokfulam and Marymount is in Tai Hang Road, the Mother says S has to spend approximately 2 hours travelling each day to and from school with a heavy pack of work which she does not enjoy and has been ill a number of times on the schoolbus, whereas if she goes to Kennedy School, it will take her only 5 minutes to go by bus from home to school. 12. The Mother says she realises the Father's concern about S attending a school which has a more international base than Marymount that her Cantonese culture may be affected, but Kennedy School does provide Mandarin lessons which S no doubt can attend, and that she herself can also teach S other Chinese subjects at home to make up whatever deficiency in Chinese lessons that Kennedy School may have. She believes it is important for S to recognise and experience the variety of culture and racial diversity which is part of Hong Kong's way of life. She says S speaks Mandarin to her at home, that she has Cantonese friends and will be able to continue to use her Cantonese at Kennedy School with those students who are Cantonese speakers. Furthermore, since S has regular contact with her father on a weekly basis, the Father will have an opportunity to ensure that S continues to appreciate her Cantonese heritage. 13. The Mother says she has discussed with S the question of the change of school which she knows by reason of the fact that her 2 siblings attend the school and that she has friends living in her neighbourhood who attend Kennedy School as well. She says at the time of the interview with Kennedy School in May 1998, S appeared quite normal and did very well in the interview. She says she was particularly excited about the many facilities of the school and was very happy and curious about the place. S was however nervous about her father's reaction to her change of school. The Mother anticipates that there will be a short adjustment period, but is confident that S will be able to handle this adjustment to the new school. 14. The Mother insists that she did inform the Father in January 1998 of her thought of moving S to Kennedy School and then in May 1998 after S's interview was successful, she again told the Father that she intended to accept the school's offer, and that it is not true that he only learnt of the change of school from S. Furthermore, she says that even if it is true that he only knew about it in May, there is no reason why he did not raise the matter until July and then only in August, shortly before S's new school term was to start, did he launch the present proceedings which she suspects was deliberately timed solely to frustrate her arrangment for S's schooling. This, she says, shows the Father's selfish motive without putting S's interest in mind. 15. As regard the education report by the Social Welfare Officer, Ms. Tam, which does not support her proposal to change school for S, the Mother argues that the Court should not place any weight on the view or recommendation of the report as the officer has not actually visited either school to carry out the necessary enquiries or research necessary for her to prepare a proper education report as required by the Court, and that the officer has admitted to her that it was a very difficult decision but that she was pressed by her supervisor to come up with a conclusion, one which is faulty as it appears to rely too heavily on S's view. 16. The Mother concludes that S is a gifted intelligent child who she believes will greatly benefit from a more broad based school which will not only be to her advantage in the short term but also the long term, that she is aware and sympathetic to the Father's concerns all of which can be catered for and properly addressed and rectified by various means, and that she believes that it is in S's interests to have the best possible education which can be provided, and that is to be Kennedy School. 17. The Father does not agree that the Mother had informed him of her intention to change S's school in January 1998 as alleged or at any time thereafter. He says he only learnt about it in May 1998 when S told him on the occasion when he was having access to her. He noticed that S was upset about it and was reluctant to the change. He therefore telephoned the Mother a few days later about the matter and expressed his objection. He says he was told by her that it was too early to say anything, that no interview had yet been fixed and that in any event there would not be any vacancy within the next 2 or 3 years. The Mother then asked him not to discuss with S about the transfer as she knew S was worried about it. The Father agreed but stressed to her that if she were to go ahead with the transfer, he would definitely be against it and would seek legal assistance to stop her. 18. The Father then says that in late May 1998 he was told by S that her mother had forced her to attend an interview with Kennedy School and that she was very unhappy about having to transfer to another school. She told him that she enjoys studying at Marymount and has a lot of good friends and teachers there that she did not want to be separated from them. He says thereafter he tried to get the Mother to discuss the matter but to no avail, and so in July 1998 he instructed his solicitors to write to her and it was only on 15th July 1998 that he received confirmation from the Mother that S would be transferred to Kennedy School in September 1998. He denies deliberately timing his application in such a way so as to prevent S from starting the new school term at Kennedy School. He says his solicitors needed time to prepare the necessary application and affirmation for him and that it was in fact the Mother who tried to pre-empt any possible action by him by withholding any information concerning S's change of school until the very last moment. 19. The Father says that S has been studying at Marymount since 1995 and has all along enjoyed studying there with close schoolmates and teachers. Her result was good and that she was chosen monitor of her class at the last school term. He does not agree with the Mother's unfavourable comments about the school and insists that her comparison of the 2 schools merely her personal comments based on hearsay and does not carry any weight. He says in fact it is beyond dispute that Marymount is one of the best primary schools in Hong Kong with glorious history and outstanding academic result and is in fact classified as a band 1 school in Hong Kong. Furthermore, he says, as the primary school is closely affiliated with Marymount Secondary School which is also one of the best secondary schools in Hong Kong, nearly all of the students from the primary school can be promoted to the secondary school. If S is able to continue her study there, she can develop a good social network which will be valuable to her long-term development in Hong Kong. On the contrary, he says, most of the students in Kennedy School do not intend to have any long term development in Hong Kong and hence it will not have any benefit on S's long term development. 20. The Father also argues that transferring S to Kennedy School at this stage of her life will deprive her a chance to learn more about the Chinese language, literature, history and culture which is very important to S in view of her background. He says S obviously likes the Chinese subjects at school and enjoys reading Chinese stories books and writing in Chinese. It would therefore be a great pity that she cannot continue to study Chinese subjects which are not offered at Kennedy School save for some limited Chinese courses which are at very elementary level. Despite the Mother's assurance that she herself will supplement S's Chinese learning by giving her lessons at home, the Father is doubtful that it will work now that the Mother is pregnant and with the arrival of a new baby later this year and that she will soon be starting her home studies for a Master Degree in Education, she will be too busy to give any regular or useful lessons to S. 21. The Father accepts that it is important for S to learn different languages and be exposed to different cultures, but as she is now already living in an environment where the Western culture and the English language are predominate, she will be able to enjoy a distinct advantage if she can also be educated and trained under the Chinese culture and language by staying at Marymount, otherwise she may suffer a deterioration in her relationship with her grandmother, cousins and other relatives of her paternal side, with whom she is now on very good terms. 22. The Father does not agree that it takes unduly long for S to travel between Pokfulam and the Marymount School everyday. He believes that each trip takes only about 30 minutes and that the Mother has greatly exaggerated the travelling time. He also believes that S enjoys the journey every much as she can chat and play with her schoolmates on the bus and that she got sick only once on the bus which was not caused by the journey. 23. The Father believes that the Mother's main motive in changing S's school is to suit her own convenience and that she has totally ignored S's feeling and concern. He believes that S is genuinely worried about the change and, as pointed out by the Social Welfare Officer in her report, that she is not emotionally or psychologically ready to handle the change and the adjustment to the new school. He argues that if S turns out unable to cope with the new school, it will be difficult for her to go back to Marymount School or other local streamed school due to the different system at Kennedy School. So, he argues, the situation is irreversible. He believes that S is already 9 years old and is intelligent and mature enough to express her view which should be respected. He does not think there is any valid reason for the Mother to change school for S which is definitely not in her best interest to do so. 24. The Social Welfare Officer Ms. Tam confirmed in Court that despite being given only a little more than 2 weeks to prepare the report, she did nevertheless properly investigate the matter including interviewing the parties and S and that although it was a very difficult case, she was able to reach her own conclusion without any pressure from her supervisor and that after having weighed all the factors properly, she maintains her conclusion that keeping the status quo of S's school is best for her at the present stage. 25. This is no doubt a very difficult and anxious case concerning the future education, and consequently the welfare and interest, of a 9 year old girl, involving a decision whether she should remain in her present local-streamed school or go to an international school based on the English School Foundation system. 26. The Mother who has been granted custody care and control of S in her divorce from the Father, wishes to exercise her custodial right to change school for her daughter, seemingly a perfectly normal thing and one which is absolutely within her right to do so without any unnecessary or unwarranted interference from others. However it is accepted by both parties and is provided under Rule 92 of Matrimonial Causes Rules, Cap. 179, that an application for an order relating to the custody or education of a child may be made to a judge for his decision. There is therefore no question as to the Father's right to interfere with the Mother's decision over S's education. The question to ask at the end of the day is whether it is in S's best interest at this stage to go from Marymount Primary School to Kennedy School, and on this I am guided by the general principles that the Court shall regard the welfare of the child as the first and paramount consideration and in having such regard shall give due consideration to the wishes of the child if, having regard to the age and understanding of the child and to the circumstances of the case, it is practical to do so, as well as the wishes of the parents and any report of the Social Welfare Department available to the Court at the hearing. 27. I think it is important to stress that both schools are excellent schools in their own way, but one is a local school with more or less equal emphasis in Chinese and English, whilst the other an international school under the English School Foundation system with naturally much more emphasis in English and the Western curriculum. Both schools therefore inevitably provide somewhat different opportunities for the children who attend there. The question which has arisen in this case in which, at this stage, is the more suitable school for S. To answer this question, it is necessary to consider all the surrounding factors and circumstances of the case in relation to S. 28. The Mother having remarried 2 years ago to an American husband with 2 children of his own, it is only natural and normal for her to fit her own life and that of S into the new family which is essentially and inevitably somewhat different from that of her former marriage due to the different background and culture of her present husband. Although she still communicates with S in Chinese, it is accepted that English will be the predominate language used at home and again it is natural and inevitable that S will be exposed more and more to the Western culture at her home. Both parties agree that it is important for S to recognise and experience the variety of culture and racial diversity which is part of Hong Kong's way of life, and I may add, in order that she may adjust and develop happily in her new family. 29. It is however also accepted by both parties that it is equally important for S to retain and appreciate her Chinese heritage and to do so, as argued by the Father, requires more than just speaking the language or celebrating its festivals or maintaining close contact with relatives of her paternal side, but also formal education on reading and writing in the languages, history, literature and philosophy, and that, the Father says, is what Marymount School can adequately and properly provide, but not Kennedy School. 30. S is now in Primary 4. Although there is no evidence presented in the present application as to the current curriculum or syllabus of primary education in Marymount Primary School, the Mother did exhibit S's Primary 2 report card to one of her affidavits filed on 17th January 1997 in the previous custody proceedings which shows that S had 5 subjects in Chinese including literature, composition, dictation, social studies and writing in her Primary 2 education, which she did fairly well during the 1st term examination, in fact better than she did in her English subjects on that occasion. There is no reason to expect any fewer subjects or studies in Chinese at Marymount at present and in future. It is however not in dispute that Chinese studies offered in Kennedy School are more limited in comparision and will have to be supplemented by other means, and in this case by the Mother giving lessons at home, as suggested by her in her evidence. It is here that the Father has serious doubt and he has good reasons to do so. 31. The Mother is now pregnant and the baby is expected sometimes in November this year. She is quitting her teaching job at West Island School to prepare for this and also for the studies of her Master Degree in Education. Although her studies is long-distant and hence more flexible in terms of time, there is no question that she will have a busy schedule on top of having to run her family and to look after 3 children, a baby and a husband. I think it is going to be very difficult, if not unrealistic, to expect her to be able to give regular and useful lessons in various Chinese subjects to S at home, given the fact that it is also often notoriously difficult for parents to teach formal education to their children at home atmosphere, there being just too much distraction and too little discipline in that situation, much as I have high regard for the Mother's experience and expertise as a teacher, or for S as a student. I am not saying that this can not be done, but it is indeed a big question mark. 32. The importance of enabling S to learn Chinese subjects, however, cannot and should not be the overriding factor in deciding whether she should or should not change her school. Her welfare and interest is. The report submitted by Ms. Tam concludes that "S is not psychologically or emotionally prepared for a change of school at the present stages" and does not support the change. Although Ms. Tam was given only 2 weeks to prepare her report and might have been under some form of pressure to reach a conclusion in her report, she nevertheless did reach one after having discussed the matter with all parties concerned, albeit under difficult circumstances which she has readily admitted as one of the more difficult cases in her past 8 years' experience as a social welfare officer. One can certainly not criticise her as being biased or careless about the case, although one would have hoped that she had actually carried out some investigation about the 2 schools, although on further thought it was simply impossible for her to do so within the very limited time available to her. It was however her firm observation and impression that S was unhappy about the change of her school, the same observation said to be made by the Father as early as in May 1998, some 4 months before this report. It would be useful that I quote here the last 2 substantive paragraphs of Ms. Tam's report:
33. Ms. Tam has in her evidence given in Court admitted that in reaching her decision, she put S's view as the most important factor, but she had also considered all the other relevant factors. I agree that S is only 9 years old and children at this age often may not be mature enough to genuinely know what is best for them, and that it is also normal and natural for people to resist changes, in particularly small children. It is however also accepted that S is a very intelligent, sensitive and mature child, a point stressed on more than a few occasions by the Mother throughout the proceedings. In her affidavit filed on 17th February 1997, she described S as follows:
34. In her more recent affidavit filed on 25th August 1998, the Mother again described S to be an intelligent and gifted child, whilst according to the 1st Social Welfare Report submitted in 1997 in the parties' dispute over S's custody, her Primary 2 teacher found her to be a cheerful and expressive student who is more independent than peers of her age. It is therefore quite apparent that S is an intelligent and mature child who has given what I find to be quite sensible and logical reasons to Ms. Tam why she prefers to remain at Marymount Primary School, and I do not believe that her view has been affected or influenced by her concern over her father's reaction, as suggested by the Mother. Ms. Tam, who has personally discussed the matter with S, is convinced that S's view expressed to her was genuine. S is described to be a sensitive and considerate child, which is evidenced from the way she handled her parents' dispute over her custody in 1997 when the 1st Social Welfare Report observed as follows:-
35. Further, when Ms. Tam was cross-examined on how S voiced her rejection of Kennedy School to her, her evidence is that S would lower her voice and became hesitant in her comment about Kennedy School other than the fact that it would please her mother and that it has less homework, but when she was asked about her present school, she could easily give various favourable comments to Ms. Tam, and appeared to be genuinely happy about the school. 36. It is therefore quite clear to me that S is mature enough to express her true feelings but at the same time sensitive and considerate not to say things that may upset either of her parents. I believe that she genuinely prefers to remain at Marymount School than to go to Kennedy School. It is true that it takes a much longer journey for her to go to Marymount than Kennedy, but I am not so sure that she does not actually enjoy the trip with her school friends on the bus. 37. As I said earlier in this judgment, I think this is one of the most difficult cases I have ever had to deal with, because we are dealing with the emotions as well as the education of a 9 years old girl. I accept that S's wish to remain at Marymount Primary School is that of a 9 years old child, but one who is intelligent and mature enough to have a good understanding of what she wants, and what has, for me, tilted the balance and make it necessary that what she has expressed in a sensible way should, in fact, be the decision of this Court, is my belief that it is paramount for S to feel happy and secured at this stage of her life, and continuing her education at Marymount Primary School will surely be an important part of that. 38. S in her young life has already gone through a lot of unfortunate changes and trauma. She spent her first 3 years away from her parents, reuniting with them later only to see them separated and divorced in a proceedings which can only be described as bitter and drawn out. In fact at times there were ugly allegations launched by her parents against each other fighting over her custody. The proceedings were then followed by her mother's remarriage with further changes to her life with new home as well as new members of a new family. All these must have affected S significantly, and at times adversely. The Father had described in his affidavit of 21st February 1997 that between late 1996 and early 1997, there were 21 complaints from S's teachers that S had failed to complete her homework, that she had forgotten to bring her books to classes, misplaced and lost her belongings, that she was inattentive in classes and that her overall academic standard had dropped considerably, whilst the Mother also agreed in her previous affidavits that S did go through a period of time of adjustment in her school work, that she experienced a stressful time in the later part of 1996, and that she needed extra special time and effort to make her feel secured and adjusted. The Mother also proposed in her affidavit of 17th January 1997 filed in the custody application that she intended to keep S at her present local Chinese school for some time to build a strong foundation in reading and writing Chinese. 39. What is most revealing of S's emotion affected by her parents' dispute is in this paragraph of the 1st Social Welfare Report:-
40. The sentiment expressed by S in the last sentence of this paragraph was made 11/2 years ago. No sooner has she appeared to adjust well to her parents' divorce and her mother's new family, and that she has settled happily at her present school and has done very well in her studies, no doubt much to the credits of the parties, that S now has to face new worries over the uncertainty of her schooling, the anxieties of going to a entirely new school with new faces and new system, and the unhappiness of losing some of the friendship she has built up the past 4 years at Marymount. Given time and efforts, S as before will hopefully be able to adjust again and no doubt make new friends at her new school, but I cannot help to beg the question of why does she have to go through these again so soon at this stage of her life. 41. I have no doubt that the Mother genuinely believes that Kennedy School will offer a better and more all rounded education to S and that by having all 3 children of her family attending the same school will give her better family and child care management which in turn will benefit all 3 children including S, nor have I any doubt that the Mother, like the Father, is a loving and caring parent with only S's best interest at heart. It is however a very delicate balancing act and I am just not convinced that it would be in S's best interest to go to Kennedy School at this stage. Having considered all the evidence and relevant factors and circumstances of the case with S's welfare as the paramount consideration, I have come to the conclusion, with some hesitation but nevertheless come to the conclusion, that S's interest and welfare will be best served, at this stage of her life, by allowing her to continue her education at Marymount Primary School. I therefore allow the Father's application but sincerely hope that the parties will in future put aside their differences for the sake of their lovely daughter to open up a genuine and candid dialogue over her future education. A lot of argument was made of the issue over when the Father was actually told of the Mother's plan to change school for S, but in the end I do not think it matters to my decision one way or the other, nor is it necessary for me to resolve this issue. Lastly I make no order as to costs given the fact that the matter involves the welfare of the parties' child, that there were merits in both sides and that neither party has acted unreasonably in the proceedings. My order is therefore as follows:-
Representation: Mr. R. Egerton of M/S Hampton, Winter & Glynn for the Petitioner. Mr. D. Tong instructed by M/S Wong, Poon, Chan, Law & Co. for the Respondent. |