C v. H

HCMP001037/1981

Family law - application by father (opposed by mother) to have Wards examined by a psychiatrist for pending custody proceedings - no unusual factors making examination necessary - application refused.

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS

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Coram: Fuad, J.

Date of Judgment: 30th October, 1981.

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ORDER

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1. At the conclusion of the hearing of an application by the father of two little girls who are Wards of Court for an order that they be "psychologically examined" by a named psychiatrist pending the determination of a summons by the mother for their custody under the Guardianship of Minors Ordinance, I dismissed the application giving brief oral reasons in open court. I now give my reasons in more detail.

2. For the matter to be understood it is necessary for me to go, as briefly as may be, into the background of the case. The father (an European) is approaching 60 years of age and the mother (a Chinese lady) is in her early 30s. They met early in 1969 and soon formed an attachment to each other. They did not set up a household together but as a result of their liaison M. was born in May 1972 and D. in May 1977; the girls happen to share the same birthday. The father had been married to another woman, a marriage which ended in divorce in 1978. Following the divorce the parties discussed the possibility by marriage but no marriage took place. Sometime in the early part of this year the relationship (during which the father had made ample financial provision for the mother and the children) broke up.

3. The girls had always lived with their mother but as the result of an arrangement made in March this year (whose circumstances and duration are in dispute) when the mother went on a trip abroad the father spent his nights in her flat and took over the care of the children. While the mother was still away, almost exactly one month later, the girls were moved into their father's own flat. On her return to Hong Kong a few days afterwards the mother tried to get her children back, the father refused and, after an exchange of correspondence between their solicitors, on the 31st July the custody proceedings out of which the present application arises were instituted. The hearing of the mother's summons is due to begin on the 30th November next.

4. Two other events must be mentioned. By an order made by Power J. on the 22nd September, the mother was allowed to have temporary custody of the children while the father was to be out of the Colony. After they would return to their father's custody, pending the hearing of the substantive proceedings, the mother would have access to the girls on alternate weekends from 6 p.m. on Friday to 6 p.m. on Sunday. According to the mother the children did not want to go back to their father upon his return to Hong Kong. She applied to Power J. for an order that the Wards should be allowed to stay with her until the outcome of the main custody proceedings, but my learned brother refused her application on the 30th September 1981. On the next day the application which now concerns us was filed by the father.

5. In support of the application there is an affidavit by the named psychiatrist, which begins by setting out what are, if I may say so, impressive credentials indeed. He says that he has seen all the papers in the case and the important parts of his affidavit are in the following terms:-

6. Mr. Charles Ching, for the father, was quick to acknowledge that the girls were not in need of any psychiatric care but contended that for what would undoubtedly be a difficult custody hearing the court would derive great assistance from an independent expert familiar with problems of the kind here. Any fears that the named psychiatrist might upset the girls by his examination were quite groundless; a person of his experience would deal with them with sympathy and tact. If it were felt that since the psychiatrist had been chosen by the father he might not be wholly dispassionate, another suitably qualified practitioner could be appointed. Mr. Ching cited B. (M.) v. B. (R.) [1968] 1 W.L.R. 1182 where a child was examined by a pediatrician on the instructions of the father, in association with his legal advisers, without either the mother or the court being consulted. Willmer L.J. expressly approved the observations of Cross J. in In Re S. (Infants) [1967] 1 W.L.R. 396 a case also cited to me. Willmer L.J. at p.1185 had this to say:-

"I think that it was unfortunate, though I do not want to be unduly critical, that in this case the pediatrician who was instructed was instructed only by one party, and only had the advantage of hearing that party's views. When similar situations arise in the future, I would strongly urge that parents who are in dispute with each other should at least co-operate in jointly instructing a doctor or pediatrician or psychiatrist in the event of it being thought desirable to obtain an expert opinion."

7. Clearly then, it was entirely proper, although the father has present custody of the girls, that he should have sought the sanction of the court before they were examined by the psychiatrist.

8. Mr. Ching also referred me to J. v. C. [1970] A.C. 688 where Lord Upjohn touched upon medical evidence in custody cases. In his speech, at p.726, he said that where the infant is under or requires treatment for some physical, neurological or psychological condition, medical evidence, if accepted, must weight heavily with the court. But in the case of a happy and normal infant in no need of such treatment, the general evidence of a psychiatrist or other medical practitioner on the dangers of taking particular courses, might be valuable but could only be an element to support the general knowledge and experience of the judge. Mr. Ching pointed out that Lord Upjohn was dealing with the weight to be attached to evidence of the kind sought to be obtained, and not with the desirability of adducing it.

9. As was Cross J. in In re S. (Infants) [1967] 1 W.L.R. 396, at p.405, I am also reluctant, as a judge of first instance, to presume to lay down any rules as to the exercise of the discretion the court clearly has to order a psychiatric examination. Every case will be so different. I would also respectfully agree with his comment (at p.407) that if the parties agree both on the need for a medical examination and the person who should conduct it, normally the court would accede to their wishes. I respectfully adopt Cross J's general approach to the matter. On the facts so far before me there are no unusual features about this case any case in which a child is involved in a tug-of-war between its parents is bound to be tragic. The physician who has been the children's family doctor ever since D. was born and M. was about 3 years of age has reported that each is active, bright and normal. Their school reports are to the same effect. Any childish tantrums which either of the girls might have displayed are hardly surprising in all the circumstances. Since the parties who obviously both love the children could not agree, in the face of the mother's opposition, I feel that no adequate reason has been put forward for subjecting either little girl to a pscyhiatric examination, although I have no doubt that any practitioner chosen would carry out his duties with sensitivity. In reaching my conclusions I was not unmindful of the point made by Cross J. in In re S. (Infants) at p.406, regarding the expense that would be involved if all children, the subject of custody and like proceedings, ought to be professionally examined on the basis that they must be suffering from latent disturbances not observable by lay persons. As in the case before Cross, J., in the present proceedings, no financial problem would arise, but if orders of the kind sought here were given in what I might be permitted to call ordinary cases, parties and their advisers might be driven to the conclusion that the Court will feel that a case has not been properly prepared unless an expert medical report has not been obtained; and if one is to be obtained, should it be sought from a physician (who may have known the child throughout its life) a psychiatrist, a pediatrician or an educational psychologist? Where an examination is felt to be necessary for a special reason, then the particular expertise required to assist the Court will be readily apparent, and the Court will be able to make an appropriate order.

10. It was for these reasons that I refused the father's application.

Representation:

Mr. Gilbert Rodway (Helen A. Lo & Co.) for plaintiff.

Mr. Charles Ching, Q.C. & Mr. Remedios (Hampton, Winter & Glynn) for defendant.