C v. D

HCMP000559/1976

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: Trainor, J.

Date of Judgment: 25th April, 1977.

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JUDGMENT

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1. D. is the father of an illegitimate infant daughter J. By virtue of section 16(1) of the Guardianship of Minors Ordinance, Cap. 13, he sought, on the 22nd September, 1976 an order in the District Court pursuant to section 11(1)(a) of the Ordinance granting him custody of J. Very shortly thereafter, the 5th October to be precise, a summons issued out of the High Court at the behest of J.'s mother, C., in which she applied for an order that J. be made a ward of Court and that she be given custody and care of J. during her minority or until further order.

2. D. is married and has been for the past 25 years and lives with his wife. C. is a divorcee.

3. In 1972 a liaison developed between D. and C. as a result of which C. discovered, in February 1973, that she was pregnant. It was alleged by C. when she gave evidence before me that an abortion was suggested by D. I wish to say here and now that I do not believe that any such a suggestion was ever made; nor do I believe that the idea of an abortion was ever contemplated by C.

4. D.'s wife S. became aware of the pregnancy and met C., according to C. in April 1973.

5. J. was born on the 14th November, 1973. At the time of the birth D. was in England but after his return he had the birth registered describing himself as the father and C. as the mother.

6. After her birth J. lived with her mother until January 1974. In that month C.'s mother became ill and was taken to hospital. As is not unusual in Hong Kong, C. considered it her duty to look after her mother and this entailed staying with her overnight in hospital. C. told me that she made arrangements for friends to look after J. during this time but when D. suggested that the child should go to his home she consented. That was in January, 1974 and J. has lived with her father and his wife ever since.

7. C. used to visit J. in D.'s home regularly, and, in fact, went there every Sunday and stayed overnight. While there she appears to have lived as one of the household, and in addition to tending to J. she took part in preparing meals for the adult members.

8. I am satisfied that C. was free to visit J. as and when she liked, with, perhaps the qualification that D. or his wife expressed the wish that she would telephone to say when she was coming. C. in her evidence did say that conditions were imposed on her visits, and indeed that she was refused access to J. on occasions, but she was clearly lying on that, and did, in fact, in her later evidence substantially withdraw the allegation.

9. For part of this time at least the relationship between the parties was harmonious. C. in her affirmation described the position: "In general, we were surprisingly happy together and friendly to each other". That may have been so in general but there were troubles. There was one incident in particular in March and I am satisfied that part of the trouble at least stemmed from C. making sexual demands on D. which he was unwillingly to meet in full. He was as he said prepared to spend some nights at the home of C. (to which S. had no objection) but not so frequently as C. wished.

10. In July an incident took place in which the noise and commotion was clearly considerable. C. accused D. of throwing things at her and striking her causing her mouth to bleed. She also accused S. of catching her by the throat and squeezing it. D. 's version is very different and he described a screaming, hysterical woman having to be physically restrained; and having to invoke the assistance of a lady doctor to calm C. down and induce her to leave the premises.

11. The result was that from July 1974 until April 1976 C. did not see J. Shortly after the incident, on the 18th July, D. wrote to C. He reviewed the position and said that while he did not wish to deny C. access to J. future access could only be subject to certain "safeguards" to be embodied in a written agreement; and repeated the advice he said he had already given her on the telephone i.e. to seek legal advice. S. went to England in August taking J. with her and they returned about October.

12. In July 1974 C. sought the assistance of the Voluntary Legal Aid Service for advice and Mr. B. Bernacchi Q.C. was consulted on the 20th August.

13. On the 7th October, 1974 Messrs. D'Almada Remedios & Co. acting on the instructions of D. wrote to C. to say that J. was back in Hong Kong. In the letter references were made to proposals and counter proposals that had been exchanged between the parties and it was suggested that C.'s legal representative should contact Mr. L.J. D' Almada Remedios. Some correspondence ensued but ceased when the solicitors acting for her ceased to act. Correspondence was resumed in December 1975 between solicitors who had formerly acted for C. and who now represent her, and D.'s solicitors. Extended correspondence ensued and eventually it was agreed that on the 5th April, 1976 C. might, in the presence of D. and an amah, take J. to lunch, and on that date D. and J. with an amah met C. in the Peninsula Hotel.

14. Three such meetings took place in what was described as a friendly atmosphere and usually ended with a walk in the park.

15. On the 28th April D.'s solicitor wrote to C.'s solicitors stating that while D. was perfectly willing for the meetings to continue he felt that J., who was only 2 ½ years of age, was not as relaxed as she would be in her normal familiar surroundings with her own toys around her and that this was inhibiting C.'s opportunity of getting to know the child. The letter went on to enquire if C. would agree to meet J. on alternate Sundays at D.'s flat, and to say that D. was prepared to give his assurance that he would not in any way interfere with C.'s enjoyment of J.'s company.

16. Nothing much came of that offer and C. continued to meet J. away from her familiar surroundings and in the presence of a Miss Lam, who daily looked after J., and D. D. said that the meetings between C. and J. were not satisfactory; that C. was at times overbearing with the child; and that the child was resentful of this to the extent that she showed an aversion to being handled by C.

17. An incident took place in August which resulted in the solicitors for the parties having a discussion on the telephone. Following that discussion C.'s solicitors wrote on the 16th August to D.'s solicitors:

Re: Mdm C and Mr. D

On the 17th August D.'s solicitors replied:

" D' Almada Remedios & Co.

Re: Madam C and Mr. D

18. The proceedings commenced by D. in the District Court were transferred to the Supreme Court, and it and the action commenced by C. were consolidated.

19. The matter first came on for hearing before me on the 17th January, 1977.

20. May I say at the outset how conscious I was of the accute awareness of counsel and solicitors for both parties that the welfare of J. was the first and paramount factor to be taken into my consideration in deciding this case, and how much I appreciated their assistance in that direction in reaching my decision. Equally did I appreciate the assistance of the two expert witnesses called.

21. The first expert witness was a Mr. Ho who has a vast experience in the field of psychology, both academically and clinically. He has been a lecturer in psychology in Hong Kong University since 1968 after qualifying in the U.S.A. where at one time he was a clinical psychologist in the Elgin State Hospital. In addition he had a consultancy practice in the U.S.A. and has such a practice here.

22. The other expert witness was a Mr. Gilchrist. Apart from his qualification in child psychology he was employed by the Education Authorities in Suffolk, England as an educational psychologist. On leaving that position he was appointed by the Department of Defence as senior psychologist in Hong Kong with responsibility for the garrison in Singapore. He is occupied principally with children, but also with their parents and teachers. Mr. Gilchrist also has a private consultancy practice.

23. Mr. Ho who was called by Mr. Downey, Counsel for C., interviewed D., S., J and C. Mr. Gilchrist who was called by Mr. Eddis, counsel for D. saw D. S and J.

24. There was a very wide field of agreement between these two gentlemen in their analysis of the situation and their opinion as to what was in the best interest of J.

25. The picture painted by both, as I see it, is that D. and S. are to J. the only parents that she knows; that she is living with them in an atmosphere of genuine love and security and that to remove her from that atmosphere or environment would, at the moment, be fraught with possible psychological trauma that could be dangerous. They both stressed the desirability, if not the necessity, of J. learning at the earliest who her real mother is and being permitted to get to know her, and having the opportunity of developing with her mother a mutual love. But that was something that must be allowed to develop in an atmosphere of progressing confidence and security on J.'s part in and towards C. At the moment her feeling of security is anchored to D. and S. and nothing must be allowed to lessen that or arouse in J. a suspicion or feeling of rejection. As I saw the picture, both felt that a feeling of security was what was most to be maintained.

26. On the matter of developing a relationship between C. and J. I felt that caution was the keynote to what both were saying. When Mr. Ho was asked if he considered, having regard to the fact that C. and J. had not seen each other for a long time, and after that spell only intermittently, that there ought be a period during which C. would have an opportunity to establish herself as a mother with J. before any radical changes were made he answered: "On this I definitely agree". He went on to say that he would not recommend changes overnight. Later he agreed that if there were to be a change in way and place of living of J. i.e. to the home of C., it would be necessary to establish an affection on J.'s part for her mother C.

27. It was Mr. Ho's conclusion that both parties were capable of providing J. with a healthy home environment but that C. was in "a relatively disadvantaged position in that a transfer of home or environment would result in disturbance to J. to some extent and would necessitate a major effort on the part of C. to re-establish herself as a functional mother."

28. Mr. Gilchrist in his report said: "(D. and S.) are clearly extremely heavily identified with this child and are doing all that is within their power to provide a stimulating and balanced environment. (J.) is now quite clearly as heavily identified with them and sees them unambiguously as her Mother and Father. At less than three years of age, this must constitute a critical period of her development, as will the next few years. Successful nurturing through this phase will depend largely on trust, respect, and credibility of her parent figures. These fundamental pillars of her identity happen to be (D. and S.), as it is they who have cared for the child virtually from birth. Any attempt to remove (J.) from the security of this environment can only cause psychological trauma."

29. These two witnesses were first heard, and on the 19th January, 1977 the case was, by consent, adjourned to the 17th March on the terms that: the child be made a ward of Court; custody until then be in D.; the child remain in the jurisdiction; and that C., accompanied by Dr. Ho or someone else approved of by D., be permitted, on giving 24 hours notice to S., to meet J. after school and bring her home and remain with her; that on those days when C. does not collect J. at school, on giving similar notice, and accompanied by Dr. Ho or Mr. Gilchrist should she wish to be accompanied, C. be permitted to visit J. in D.'s home provided that the visits do not exceed two hours or extend beyond J.'s bedtime. It was further agreed that should C. meet or visit J. three times in any week D. would bring J. either on the ensuing Saturday or Sunday to visit C. There was also a provision to enable C. to bring J. to functions, such as weddings, to which she might be invited.

30. That was on the 19th January but on the 4th February the matter was brought before me by reason of a disturbance alleged to have been created at the kindergarten school at which J. attended. This is a private school run in a private flat. It appears that C. insisted on going into the flat and through it to the children's playroom despite the objection of the lady who runs the school. According to the affidavit of this lady C. loudly announced that she was the mother of J. and had a right to enter the flat; that she had a right to visit J. for two hours and would bring a letter from her solicitors to prove it; and that she desired to spend the two hours inside the school. The lady who runs the kindergarten was obviously embarrassed and in her affidavit said she considered C.'s behaviour detrimental to all the children but to J. in particular. I consider one paragraph of this lady's affidavit of very grave significance:

"4. On each of the three occasions when C. has entered my flat to take (J.) away, I have noticed the said child's physical aversion to (C.'s) presence. Furthermore, as a direct re-action of (J.) to (C.'s) attitude during her visits to my flat I have sensed a weakening of the confidence built up by me with the said child since she joined the playgroup in May last year."

31. I have no reason to accept the deponent's evidence as being that of an expert, but such facts as she stated are, as I said, of grave significance.

32. On the morning of the 4th February when the matter came before me and I endeavoured to explain the position to C. there was an hysterical outburst from her; and when I adjourned until the afternoon her screams could easily be heard in my chambers. There was another occasion when her behaviour was similar.

33. I am not going to traverse the evidence that was given by C. and D. I intend, largely, to rely on the evidence of the experts who were called, and my own observations with some assistance from the affidavit of the teacher.

34. I am convinced beyond any doubt by all the evidence that J. has in the home of D. a haven of love and security. In D. and S. she has the only parents or parent figures of which she has ever been aware. I considered the approach of D. and S. in this matter to be mature, and inspired almost entirely by a consideration for J.'s welfare. This, I think, is reflected to a large extent by the fact that even now, in the month of June, they are prepared to afford facilities to C. to enable her to develop an association with J. which will enable J. to identify C. as her mother and love her accordingly. Whatever element of selfishness I perceived in D., and I considered it to be small, was the natural result of his love for J.

35. Of C.'s love for J. there can be no doubt; but I am seriously in doubt as to whether her concern for J. is as unselfish as one would expect. There is in her I believe an important element of spite towards D. and a desire to hurt and humiliate him. That was shown by some of her evidence which was lying (e.g. her evidence that D. asked her to have an abortion, and her evidence as to conditions which were imposed on her as a condition of seeing J. in 1974) and by the interviews she gave a press reporter when she permitted him to have access to all the documents in the case and gave him photographs of herself, D. and J. The result of the interviews was published on the front page of one of the less savoury English Sunday newspapers to the obvious embarrassment of D. But much more objectionable was the possible adverse effect the publication may have on J. in years to come. The reporter who was responsible appeared before me on contempt proceedings and apologized unreservedly. He informed me that when he was requested by the editor to obtain all possible information on this case he pointed out that it was a matter pertaining to the custody of a child and was being dealt with in chambers. As to that he was told, he said, that the paper would be immune to any impeachment proceedings as it was outside the jurisdiction. If that is true the utter irresponsibility of the editor is I think reflected in that observation. That C. gave such an interview, having been warned against publicly discussing the proceedings is, I think, indicative of vengefulness and spite; and even allowing for the very considerable emotional strain under which she was labouring (and for which considerable allowance had to be made in court) it showed an immaturity and a selfish lack of appreciation of what was to the real benefit of J.

36. When the hearing was completed I had no doubt that there was only one decision open to me: J. must be left in the security she knows, i.e. in the custody of D.

37. It was my serious, considered opinion that to remove J. from the environment she knows to one which is admittedly less congenial, from an established way of life to one that is very different must, almost inevitably, have an effect on her that could not be other than damaging. I express my view on that in a positive, categorical way rather than in the neutral way of suggesting it might have a damaging effect. Moreover, though this is of secondary importance, the opportunities for further development and material advancement in life for J. appear to be much greater with her father than were a change to be made. It may well be that my decision may cause anguish on the part of C., and it is a fact that I have had continually before me as well as the possible advantage of this little girl being with her mother, nevertheless anguish on one side in a case like this is inevitable but that is a fact which is secondary to J.'s welfare.

38. In arriving at my decision I found considerable support in the decision of the House of Lords in the case of J. and Another v. C. and others, 1970 A.C. 668. From the headnote, that was a case where an infant, a boy was born in May 1958 in England of Spanish parents. Because of his mother's ill-health he was taken care of by foster parents in their home from four days after his birth until April 1959. In February 1960 he was brough to Spain by his parents where he lived with them until July 1961. His health suffered while in Spain, and at the request of his parents his former foster-parents received him back into their home for an indefinite stay. In all he had spent seventeen months with his parents, returning to England when he was three years and two months. In the foster-home he was brought up as one of the family.

39. In 1963, only two years later, the parents sought to have their son restored to them and the child was made a ward of Court and in 1965 care and control of him was given to the foster-parents.

40. From the time the boy returned to England he was brought up in the Roman Catholic faith and when care and control of him was given to the foster-parents it was ordered that he be brought up in that faith.

41. In 1967, for educational purposes, the foster-parents asked that the infant might be brought up in the Church of England faith and the parents caused to be issued a summons asking for custody care and control of him.

42. At the time of the hearing the infant was 10 years old. His parents lived in a suitable modern house in Spain; his father was in good employment; and his mother's health was restored. It was not disputed that they were in no way unfitted to have the care and control of the infant. The foster-parents had six children; it was a good home and a happy united family with which the infant had become well integrated. There was medical evidence that in view of his relationship with the foster-parents as parental figures, and with the other members of the family, the chances that he would make a successful adjustment in Spain were slight, and that if he did not the consequences for his future emotional stability and happiness were grave. The judge accepted that as a general proposition it was for the welfare of a child to be in the custody of unimpeachable parents, and were it not for the dangers of adjustment to life in Spain he would have ordered custody to the parents; but he considered there was no reasonable prospect of such adjustment, and that a return to Spain would be disastrous for the infant. He made no order on the parents' application. His decision was upheld an appeal and in the House of Lords.

43. I ordered that D. have custody care and control of J.; it is axiomatic with that that the application of C. for custody of J. is refused. I revoked an earlier order that J. be made a ward of Court as I considered that the subsequent applications to Court that such a position would entail, and the inevitable delays that such applications would cause did not warrant it. I did order that the child may not be taken from the jurisdiction without the leave of the Court.

44. As to access by C. to J. I ordered, as a temporary measure, that the access as arranged in April 1976 be restored and, in addition, that C. be permitted to meet J. in the presence of an amah or someone appointed by D. between the hours of 3 p.m. and 5 p.m. on Tuesdays and Thursdays. The question of access now stands adjourned until the 1st November, 1977.

45. Since I announced my decision I have been asked to adjudicate on the question of costs. I made no order as to costs. In making my decision I had prominently in my mind the fact that had it not been for the illness of C.'s mother J. would, today, probably be in C.'s custody.

Representation:

Mr. Eddis (D'Almada Remedios & Co.) for the father

Mr. Downey (Hastings & Co.) for the mother