Re M L
Read the full judgment text of HCMP 103/1969 on BabelCite. This High Court CFI judgment was delivered on 9 August 1969.
1. I will direct that this Originating Summons be entitled in future "Re M.L. (an infant)". It is possible that some publicity may be given to this judgment for it deals with an unusual point of law. The new title is intended to give a measure of anonymity to the proceedings.
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HCMP000103/1969 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION MISCELLANEOUS PROCEEDINGS NO. 103 OF 1969 ----------------- Re: M.L., an infant ----------------- Coram: Briggs, J. in Chambers. Date of Judgment: 9 August 1969 ----------------- JUDGMENT ----------------- 1. I will direct that this Originating Summons be entitled in future "Re M.L. (an infant)". It is possible that some publicity may be given to this judgment for it deals with an unusual point of law. The new title is intended to give a measure of anonymity to the proceedings. 2. The plaintiff applies to the court for an order to make the infant, M.L., a ward of court, and for an order that he be granted access to the infant. 3. The plaintiff is the father of the infant. The defendant is his mother. The infant is a boy aged two years. The defendant is now a married woman but at the time of the birth of the infant she was a spinster. The infant is now outside the jurisdiction of the court at an address known to the defendant but unknown to the plaintiff. His whereabout was disclosed to counsel for the plaintiff and to the court. All I will say is that the infant is somewhere in the United States of America. 4. The plaintiff settled a certain sum of money on the infant after the commencement of these proceedings and the trustee has been joined as a party. 5. The infant was born in Hong Kong. The plaintiff and the defendant are both Australians living in Hong Kong. They are both therefore British Subjects. The infant likewise. 6. At first the defendant was represented by solicitors but she was unrepresented in the proceedings before me. There was a second summons which was brought by the defendant for an order to strike out the present summons on the ground that the court had no jurisdiction to make the order prayed for. 7. I understand that the defendant had conceded this point but it is novel at least to me, and so at the commencement of the hearing in chambers I asked counsel for the plaintiff whether I had jurisdiction to make the order. 8. The point can be put simply: has the court jurisdiction to make an illegitimate child a ward of court at the instance of the father against the wishes of the mother, that child being outside the jurisdiction of the court? 9. The law in Hong Kong is different from the law in England. At common law an illegitimate child was filius nullius. No one possessed the full rights of a parent which are recognised by the law in the case of legitimate children. 10. However, in England, since the passing of the Poor Law Acts, the position has changed. Those Acts made it an offence for the mother of an illegitimate child to neglect or desert her child. This was an attempt to prevent such a child from becoming a charge on the parish. Such a duty, which continues till the child is sixteen, involves a right to its custody. Therefore in England the wishes of the mother of an illegitimate child are of greater importance than the wishes of the father. The paramount consideration is of course the welfare of the infant. And the wishes of the father may be disregarded if it is in the interests of the infant to do so. However, this does not mean to say that the wishes of the father are to be considered. 11. Lord Herschel in the well-known case of Barnado v. McHugh(1) said:
And he quoted Jessel M.R. in R. v. Nash(2) as saying:
12. The Poor Law Acts do not apply and have never applied in Hong Kong. Nor is there any comparable legislation imposing on duty on the mother of an illegitimate child to maintain such a child. 13. It follows that I am of the opinion that as father of the infant in the present case, the plaintiff, may maintain these proceedings and seek the order of the court he desires. And that his wishes respecting the infant must be considered as well on the wishes of the infant's mother subject always to the paramount consideration that the welfare of the child must prevail. 14. I am also satisfied that the court will make such an order as is here asked for despite the fact that the infant is outside the jurisdiction of the court. 15. The infant in this case is a British Subject and the court has inherent jurisdiction as to the custody of an infant who is a British Subject no matter where that infant may be. 16. In Harben v. Harben(3), Sachs, J. said:
17. In re Liddell's Settlement Trusts(4) the court made an order ordering the mother of four children who were wards of court to bring the children within the jurisdiction though she herself as well as the children were in America. In the present case the mother and father of the infant are both in Hong Kong. 18. As I have said above the father has made a settlement on the infant and has in these proceedings asked that trusts of that settlement be administered. It follows therefore that the infant M.L. is a ward of court. 19. As I have said the paramount consideration in cases involving the custody of an infant is the welfare of the infant. 20. What I have to consider is what is best for M.L. At present he is among strangers and has been there since April. The plaintiff is a bachelor and a professional man in the service of the Hong Kong Government, the defendant is a married woman living with her husband. 21. I have had placed before me various affidavits made by both parties. And in addition the defendant gave evidence in the witness box. The plaintiff did not give evidence. I do not think it is necessary to summarise the evidence in any great detail. 22. The plaintiff is about 34 and the defendant about 26. They met in Hong Kong in 1965 and they started to live together in August of that year. The defendant left the plaintiff in February 1966 by which time it was known that she was pregnant. From what I have read and heard the relationship would appear to have been passionate rather than affectionate. Both parties appear to possess very strong personalities. 23. I saw and heard the defendant in the witness box. She is a woman of temperament and quite obviously has a strong character. The same emerges from a reading of the affidavits sworn to by the defendant. There were, it would seem, quarrels and reconciliations. Though it would appear that marriage was discussed, each party came to realise that it was out of the question. 24. Allegations of misconduct have been freely made by each party against the other. I will say at once that I do not think that either party has been completely frank with the court. And I have no hesitation in saying that the evidence of each party was influenced by spite. The plaintiff swore an affidavit giving a lurid account of the life of the defendant before he met her: and the defendant reiterated over and over again, with details which she herself admitted were petty, that the plaintiff was quite unsuited to have custody of the infant. She said he was an habitual liar, unstable, and of a violent nature. He said she was dominating and indicated through her cross-examination that her real reason for defending these proceedings was not a wish that she herself might have custody: but that the plaintiff should not. 25. Much of the evidence was flatly contradictory but it is unnecessary for me to decide which particular item of that contradictory evidence is true. The evidence is only of importance in deciding what is in the best interest of the infant. 26. Five days before these proceedings were commenced, the infant was flown out of the jurisdiction. The plaintiff had made a previous application under Cap.13 in respect of the infant which was not proceeded with. The defendant did not tell the plaintiff where his son was being sent. The plaintiff's case is that this was done not in the interests of the infant but from spite: to ensure that he shall not see his child. Counsel for the plaintiff asked the defendant in cross-examination where the infant was now living. She said she would rather not say. But she said she would tell the judge. I asked her to write down the address on a piece of paper which I said I would disclose to counsel for the plaintiff on the undertaking that he would not disclose it to his client. 27. The defendant said she objected to the plaintiff knowing the address since she had been plagued (her own word) by him for so long. What she wrote down on the piece of paper handed to me was surname, a city in the U.S.A. and the fact that the person named had a son of the same age as the infant. On the information supplied it would be impossible to trace the whereabouts of the infant. At the same time her case was that the plaintiff was in such financial straits (owing to his method of living) that he would not be able to afford to pay a qualified nurse to look after the infant. If that were so the plaintiff could not possibly afford a journey to the U.S.A.: and even if he could afford such a journey, how could it help him? The defendant has not been frank with the court here. And, indeed, I am left in doubt whether the infant really is in the U.S.A. or not. 28. The court will set its face against the unilateral removal of children from the jurisdiction by one parent. [See Re T (1968) 3 All E.R. 411 and the so-called kidnapping cases there referred to.] 29. It is true that the defendant is and has always been most anxious that the plaintiff should not have control of the boy. She even admitted that she had deliberately not given the plaintiff's name as the infant's father when registering the birth because she did not want the plaintiff to have any rights over the infant as a parent. She did allow the plaintiff to have access to the infant but she said she did this with the utmost reluctance because of the extreme youth of the infant and the character and the manner of life of the plaintiff. 30. The plaintiff saw the infant up till May 1968 when he went to Australia on leave. The plaintiff has not had access to the infant since that date when he was some nine months old. By this time the defendant was living with her present husband who was then married with two children. Later there was a divorce, the defendant being cited as the second respondent. She has since married as I have said. And she says she is happily married. 31. The plaintiff contends that the husband of the defendant is not friendly with the infant: and that that is at least one reason why he was sent abroad. This is denied by the defendant who says that she and her husband are about to leave Hong Kong for good and that the infant was sent on ahead as they would be stopping off at various places on the way to their final destination. This would not be good for a two-year-old child. So he was sent to their final destination in advance. In addition she said that her husband was very fond of the infant who regarded him as his father. There was no direct evidence from the husband as to either of these points. It would have been easy to have filed an affidavit from the husband if it really is the case that he and the defendant are leaving Hong Kong for good. He has, she said, been made the Far Eastern Manager of a business centered upon New York. I do not think that takes us any further. I was told that the husband has business, racing and other connexions here. I was not satisfied that this part of the evidence of the defendant. It did not ring true. She said that she was only waiting in Hong Kong until this case was finished. I regret to have to state that I do not believe that to be true. 32. What is not in dispute is that the defendant is an excellent mother. She had a difficult delivery. And the child was at first sickly. Though I am satisfied she was receiving financial help from the plaintiff after the birth of the infant, she was not in easy financial circumstance. It was 1967 and there were civil disturbances in Hong Kong. She nursed the infant to health and I am told he is now a healthy and happy child. Again, this is not in dispute. 33. Nor is it in dispute that after the birth of the infant the plaintiff exhibited strong signs of affection for his son. The defendant says this was an expression of his vanity. But I am satisfied that it was not meretricious, I find as a fact that the father and the mother of the infant are both proud of him and have a genuine affection for him. 34. These proceedings would never have been commenced had the plaintiff no love and affection for his son. 35. Summing up the evidence there appears to be little to choose between the father and the mother so far as their conduct relative to the infant is concerned. The financial state of the plaintiff has been fully disclosed. 36. The defendant admitted that both she and her husband are at present in somewhat straightened financial circumstances. But she said that the infant has lacked and will lack for nothing. This I can accept. 37. It has not been suggested by the defendant that the infant should remain with the persons who at the present time are in charge of him. They are not relatives: they are merely friends. 38. I agree that it is not in the best interests of the infant that he should be brought up among strangers. Parential affection and control at his age is of enormous importance. 39. In my view the best interests of the infant demand that the infant be brought back to Hong Kong, within the jurisdiction of the court and that he be placed in the care and control of one of his parents. It is obvious that the parents can agree about nothing at this stage. So I must decide which of the two of them should have care and control. 40. To whom should the infant go? The evidence as to the character of the mother and the father balance out. Each has been guilty (if that is the right expression) of moral faults. But not against the infant. 41. So far as financial circumstances are concerned, the evidence is inconclusive. It is not in doubt that the infant will not be in want whether he is in the care and control of his mother or his father. 42. Before making any order in this case other matters must be taken into consideration: the defendant is married but she is a working woman. The plaintiff is a lawyer. Both of them will be away from their respective apartments during normal working hours. Whether the infant is placed in the care and control of his mother or his father, he will be in the charge of servants during the greater part of each working day, at least while in Hong Kong. 43. The defendant told the court that the plaintiff lived an intemperate life. And it is not denied that he is gay. 44. As I have said above the defendant is an excellent mother and she herself has told the court that she loves her son and is prepared to bring him up and to look after him. I believe her. In my view the circumstances of this case shows that a child of this age could be better looked after by his mother whom he knows and will recognise than his father. It is, indeed, more than doubtful if he would recognise the plaintiff. 45. The evidence of the defendant is that the plaintiff has not had access to the infant for one year and three months. I do not think that that has been challenged. 46. This, perhaps, is a minor point in this case, but it would be difficult for me to make an order that a two-year-old boy should be sent back to Hong Kong by air, there to be met by a person whom he does not know and there to start a life very different from what he has had wherever he now is. 47. I was asked by counsel for the plaintiff to make one of three orders. In my considered opinion the correct order is that the infant, M.L., be returned to Hong Kong within the number of days mentioned in the order, that he shall remain a ward of court until further order: that he shall be placed in the care and control of the defendant: that the plaintiff shall have reasonable access. The period and time for access to be by agreement between the parties. The plaintiff through his counsel has agreed to pay for the cost of bringing the infant to Hong Kong. Liberty to apply. No order as to costs.
Representation: Mr. de Basto Q.C.,& M. Asome (Deacons) for Plaintiff. Defendant in person. Judgment handed one in Chambers. (1) (1891) A.C. at p.398. (2) 10 Q.B.D. 454. (3) (1957) 1 A.E.R. at p.381. (4) (1936) 1 A.E.R. 239. |