F v. F

HCMC000076/1966

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION NO. 76 OF 1966

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Coram: Briggs J. in Chambers.

Date of Judgment: 4th May, 1970.

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JUDGMENT

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1. This is an application brought by the husband for an order to enable him to remove his three children out of the jurisdiction to the United Kingdom.

2. The application was heard in chambers on 28th April. At that time both parties were represented. An affidavit in support of the application made by the husband and an affidavit sworn by the wife opposing the application were before the court. I was told that neither party wished me to make an order to allow cross-examination on those affidavits. However, I was asked by the solicitor for the wife to interview the three children, which I did.

3. The husband and wife were married on 4th February 1954 in Hong Kong. The husband is an Englishman and a civil servant. The wife is Portuguese and is presently employed as a secretary. The parties lived together in Hong Kong and have three children, one son and two daughters. At present the son is nearly 16, the elder daughter is 14 and the younger daughter is 12.

4. The marriage was dissolved in February 1967 on the grounds of the desertion by the wife, and the husband has married again. I understand that he has instituted divorce proceedings against his second wife. Be that as it may, in his petition the husband, who asked for the discretion of the court in his favour, did not include a prayer seeking the custody of the children. Nor has be made any application to the court for such an order since. The children have since 1963, which is the date when the desertion commenced, lived with the wife: and indeed they are now living with her, together with her mother in a flat in Causeway Bay.

5. In his affidavit the husband states that in May 1970 he is going to the United Kingdom for seven months' leave. He wishes to take his three children with him and to send them to a Boarding School in Hampshire.

6. The wife opposes this application on the grounds that it would not be for the benefit of the children if an order was made.

7. In deciding whether to make an order of this nature the court first considers the interests of the children concerned. Their interests are paramount. And no order will be made unless it is for their benefit.

8. The three children made an excellent impression on me. They all separately told me that they did not wish to go to the United Kingdom. The eldest child was in the United Kingdom when he was a small baby: apart from that none of the children has ever been in the United Kingdom, they have no ties there and no friends there. They consider Hong Kong to be their home and not the United Kingdom as they have always lived here. The children said that they have a large circle of friends here. They are Cantonese and Portuguese speaking. And their whole life is centered in and around Hong Kong. They know no one in the United Kingdom.

9. The three children are being educated at three Roman Catholic Schools in Hong Kong, schools, which bear excellent reputations. The present scholastic term will end in July so that if an order were made that they should leave in May their school studies would be disrupted.

10. The children told me that their father had paid very little attention to them indeed. The flat in which they are living is situated in Causeway Bay and during the 1967 disturbances he did not make enquiries to discover if they were safe even by telephone.

11. In her affidavit the wife states that the husband has taken but little interest in the children's welfare: she says that he has contacted them only three times since 1966 and one of those occasions was by telephone only.

12. Although there was no order for maintenance after the divorce the husband paid the wife $500 per month for the children. And he sends the children Christmas presents. This sum of $500 was reduced however to $400 in June 1969. And all payments have ceased since July 1969. None of the matters which are contained in the affidavit of the wife have been contradicted by the husband.

13. In a proper case one would not hesitate to grant an order allowing children to be properly educated in the United Kingdom. But I am not satisfied that this is a proper case for such an order.

14. First of all, the children do not want to go and the two eldest are quite old enough to know their own minds. All three of the children struck me in my brief interview with them to be most intelligent and well aware of the point at issue. They did not appear to me to have been coached in any way by their mother, whom of course I did not see. They were indifferent about their father and I received the impression that they really did not know him but they showed no rancour towards him. They are Hong Kong children, not English children and are perfectly happy here and content with their lot. They have a familiar home with their schools and friends around them.

15. The husband in his affidavit criticized the conditions in which the children live. His allegations were denied by the wife in her affidavit. The children confirmed their mother's affidavit that their flat was excellent accommodation. The husband has hardly ever been to the flat in the last 4 years and I will accept the facts as given by the wife and children on this issue: The same applies with regard to the children's grandmother. She is no longer young but I was told she is hale and hearty.

16. As to supervision of the children, the wife is working, but while she works the children are all at school. Anyway they are independent children and I am quite certain that they are capable of looking after themselves with the assistance of their mother and grandmother.

17. The husband says that he wishes to send the three children to school in England. In his affidavit no school is named: nor is it stated whether the children have been or will be accepted in a suitable school. There is only a reference to "a boarding school in Hampshire". There is no suggestion that there are places waiting for the children in suitable schools or indeed that it is possible to secure such places - one difficulty being that the current scholastic term will not end until the end of July. If placed in school the children would be split up in all probability. No address of relatives or friends in the United Kingdom is given which the children would be able to consider their home or base. Apart from their father whom they barely know, the children would be without friends, strangers in a strange land.

18. I can see no grounds here for making the order sought. I do not think it would be in the interests of the children or of any one of them to disrupt their whole lives which is what the effect of such an order would be. They would lose contact with their mother, their home, their school - their friends and acquaintances - indeed they would be starting a completely new life.

19. The application is for an order to take the children permanently out of the jurisdiction but during the hearing it was suggested that if an order were made and the children were to go to the United Kingdom they could always return here. I put this proposition to the children but they showed no interest in going to the United Kingdom even for a short time.

20. I do not think it would be in their interest to do so. It would disrupt their schooling and be unsettling.

21. The application is therefore refused with costs.

22. Certificate for counsel.

Representation:

Smith (Deacons) for Petitioner.

William Chan (Hastings & Co.) for Respondent.

Written Judgment delivered.