C v. W

FCMP000207/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 207 OF 2000

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Coram: H.H. Judge Saunders in Chambers

Date of Hearing: 10, 11 & 12 October 2001

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J U D G M E N T

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1.This is an application by the mother of two young children for orders pursuant to s 10 Guardianship of Minors Ordinance (GMO) for custody and for an order changing the names of the children. The applications arise in the following circumstances.

2.The children, the subject of the application, are a girl born 25 September 1998, now aged three, and a son, born 16th February 2000, now aged 18 months. The Applicant (mother) met the Respondent (father) in November 1997. They began cohabitation almost immediately. At the time the mother, then aged 16, was working in a hair salon as a shampoo girl and the father, then aged 21, was working as an aircraft maintenance worker at the airport. Shortly after their cohabitation began the mother became pregnant and ceased work. At the time they were living in Tuen Mun, on the first floor of the building in which the father's parents and sister lived on the fifth floor. Although the relationship was not entirely stable, the son was born on 16th February 2000.

3.On 15th May 2000, after a quarrel, the mother decided to leave the father. This she did, but she did not take the children with her. That she did not take the children was an issue in the trial to which I will later refer. The children remained with the father, he having the assistance of his family in caring for them. In October 2000 the mother decided to make an application for custody and went first to the Birth Registry to obtain copies of the children's birth certificates. When she obtained them she found that the father had changed their names from those first registered, KY and CCF, to WC and YMF. Consequently, when bringing her application for custody, she also made application to restore the children's original names.

4.The mother now lives with her maternal grandmother and her elder daughter, born to her in April 1997 before she met the father. That child had been living with the grandmother during the period in which the mother and the father cohabited.

5.The mother and her maiden family have been known to the Family Services Centre of the Social Welfare Department since 1992. That situation had arisen primarily because of the mother's own mother had died as a result of drug abuse in 1995, when the mother was aged 14. Since leaving the father the mother has resided with her grandmother and has been engaged full-time in caring for her eldest child. She is dependent upon Comprehensive Social Security Assistance. They live in a self-contained public housing flat in Shan King Estate in Tuen Mun. The mother's eldest daughter attends a day school.

6.The father has, throughout, been working as an aircraft maintenance worker at the airport. He said that he earned $8,600 per month and worked overtime one night per week. He continued to live on the first floor of the building in Ting On Court in Tuen Mun, where he and the mother had lived prior to the breakdown of their relationship. The two children live with him, sharing a bedroom with a domestic helper who has been employed to assist with children. His parents continue to live on the fifth floor and they are available to assist with childcare as is his sister.

7.It was the mother's case that she loved the children and that she would devote the whole of her time to their childcare. She said that her elder daughter had an excellent relationship with both children and that with assistance from her grandmother she considered that she had no problems with childcare. She was supported in her case by her grandmother.

8.The husband's childcare plan was that the children would be mainly under the care of the domestic helper while he was at work and that he would also have the assistance of his parents and his sister in looking after the children. He was initially opposed to staying access, and it was only with reluctance that he considered the mother should have weekly staying access if he was granted custody.

9.The children are too young to express any views in relation to custody. I am satisfied from the Social Welfare Officer's report that the children are happy and interact well with both families, including both sets of grandparents, and, as far as WC is concerned, with her stepsister. It was the recommendation of the Social Welfare Officer of that the custody of the children should be granted to the father with weekly staying access to the mother.

10.A great deal of time in the hearing was taken up with the cross-examination of parties on issues in which each made accusations against the other, those accusations being designed to found a submission that the other parent was unfit to have custody of the children. It is unfortunate that they chose to conduct the case in that way for each, in the process of so doing, completely lost sight of the real issue in a custody case, namely the welfare of, and the best interests of the children.

11.That that is so may be seen especially from the father's allegation that when the children were returned from access they were found to be suffering from insect bites. It was also his complaint that WC had not been taken to morning Saturday school when at access. An analysis of the dates of that complaint showed that on a number of occasions when she was not at Saturday school she was in fact with her father. He explained that absence by the fact that she had chicken pox. That evidence put the value of the evidence as to insect bites into a proper perspective. Just as the fact that a child contracts chicken pox is not evidence of an unfit parent, neither is the fact that a child living in the New Territories has insect bites, evidence of an unfit parent. I do not propose to traverse the numerous other allegations each made against the other. None of them assisted me in making a decision as to the best interests of the children.

12.WC is now aged three. She attends what might best be described as a nursery school. To suggest that she is being deprived of a proper education because she does not, on the occasions when she is with her mother, attend that nursery school on some Saturday mornings, is to demonstrate first, that the solicitors who have allowed the allegation to be included in the papers have no proper sense of what matters are relevant in a custody case, and second, that the parties who make such allegations have no proper idea of the place in which education ought to be in the life of a three year old child. It cannot possibly be said that if a child of three should miss occasional days at a nursery school, it will jeopardise her future education. Nor can it possibly be said that a parent who keeps a child home from such a school is unfit to have custody of the children.

13.I place no weight whatsoever on these allegations at all.

14.At the hearing, I heard from the mother, her grandmother, the father, his sister, and his mother. The father's childcare plan involves the children being in the case of a domestic helper for most of each day. That being the case I was very surprised that there was no affirmation on the part of the domestic helper. Quite how the father's solicitors thought that they could conduct in this case in the absence of any evidence whatsoever from the person who was to be the primary carer of the children escapes me completely. I should say that I was equally surprised that the Social Welfare Officer did not find necessary to interview the domestic helper although she was present when he interviewed the father's family at the father's home. However I did not allow the incompetence of either the father's solicitors or the Social Work Officer to count against the father. At my suggestion a proof of evidence was obtained from the helper over night and she was cross-examined the next day.

15.It was a central plank of the father's case that the mother had abandoned the children. It is right that she left the home in which she and the father had been living, taking only her personal items, and not taking the children with her. However, to characterise her action as an "abandonment of the children" is quite misconceived. Her actions must be seen in the light of the whole of the circumstances. She was at the time a little over 18 years old. She had come from an extremely difficult background, with her own mother having died from drug abuse when she was only 14. She was living in an environment where it was plain that although physical assistance in relation to childcare and homecare was given to her from the father's family, she herself received no proper emotional support, either from the father or his family. She had given birth to her third child only three months earlier and was, in all likelihood suffering from post-natal syndrome. At the time she left the father she knew that the children were in the proper care of his family and that they would not be left alone without proper adult care at all.

16.I am completely satisfied that her action in leaving home in the way she did may not be characterised as an abandonment of the children but was in fact the misguided action of an immature and inexperienced young person in response to a situation with which she found it difficult to cope. The circumstances of the departure from home do not in any way indicate that she does not care for the children or that she does not wish to maintain a relationship with them.

17.Were there no other option available, I am satisfied that the childcare plan of the mother, involving as it does her grandmother, and in the environment proposed, would be a satisfactory childcare plan in which the welfare of the children would be adequately met.

18.I was, as I have said, able to hear evidence from the domestic helper and she was cross-examined. I was impressed with her. She was quietly confident and plainly had the best interests of the children at heart. Although coming from Indonesia she already speaks limited Chinese and I am satisfied that she is able to adequately communicate with the children and the father and his family. She has now been looking after the children since September 2000, a period of over one year. I am satisfied that she has developed a strong attachment to both children and that they are in good care with her at all times. The childcare plan of father has the added benefit that he lives by way of an extended family arrangement with his parents and sister very close and able to render assistance to him in caring for the children.

19.It is normally very important that children as young as those in this case be with their mother. But the mother in this case is in a very special circumstance. She does not have the support of her own mother, although she does have the support of her grandmother. She is only 20 years old and although she has three children it cannot be said that she is a mature and experienced parent. The greater part of the burden of bringing up her eldest daughter has, until recently, being carried by the grandmother. It is only since she has been in receipt of a social welfare benefit that the mother has been able to give the whole of her time to her eldest daughter. At best she may be described as an inexperienced parent, despite having three children. Although I do not find her response to the difficulties she suffered in her relationship with the father to constitute an abandonment of the children it does demonstrate her immaturity in dealing with life situations at the present time.

20.Having regard to all of these circumstances I have concluded that the welfare of the children will best be served, at the present time, by them remaining in the custody of the father. This is not necessarily a situation that I would expect to continue for ever. As the mother gains in maturity she may become the more appropriate parent as it must usually be preferable for young children to spend their preschool time and early school years in the full-time care of a mother rather than a domestic helper. Thus although the father has been successful today he must understand that the time may well will soon come when it will be appropriate that the children should be in custody of the mother.

21.There will accordingly be an order for custody of the children in favour of the Respondent father, reserving reasonable access to the Applicant mother, that access to include staying access. I do not proposed to define the access as I would prefer the parties to meet with each other to agree on access. However, in case they are unable to agree, leave is reserved to apply.

22.I turn now to consider the question of the children's names.

23.Following the departure of the mother from the home in which she lived with the children the father took steps, without first consulting the mother, to change the children's given names. The evidence does not disclose precisely when this occurred, but it appears that it was very soon after her departure. I was told by the father and his mother that a "fortune teller" was consulted and that his advice was that the names that had been given to the children originally were unlucky. There was no evidence as to the credibility of the so-called fortune teller, and no evidence that the person concerned was in any way recognised by the local community in that capacity.

24.I accept that in our society credence is given by people to the advice of fortune tellers and that, for some people, many aspects of their lives are, if not governed, then certainly regularly guided by the advice of a fortune teller. The fact that this step was taken as a result of the advice of a fortune teller is conclusive neither for or against the decision I must make as to the children's names. It is irrelevant.

25.Even accepting that the mother had made no immediate contact with the father after her departure his action in changing the children's names without first consulting her was arrogant, arbitrary and capricious. It is a step he ought not to have taken without first consulting her. That he should have taken that step without any discussion with her is a clear demonstration of his attitude of antipathy towards her involvement in the children at that time. It is a step he ought not to have taken.

26.When the mother left the family home in May 2000 the daughter was 18 months old and the son was 3 months old. At that age, whilst the daughter would have recognised her name, she would not yet have reached the stage where her name would be an integral part of her identity. The son, at 3 months, would not yet be in a position to remember or use a particular name. The reality of situation is that they are now 3 years, and 18 months old respectively, and have been using the new names for some 15 to 18 months. The daughter, at 3, has now reached an age where she will be well aware of her name and the only name that she will be used to is the new name. The name the father's family is using for her will be established in her mind as an integral part of her identity. Unfortunately, I suspect that whatever order I make, the father and his family will continue to use the new names in given by them to the children.

27.There is ample authority in relation to the change of a child's surname. The leading authority in England now appears to be a decision of the House of Lords in Dawson v. Wearmouth [1999] 1 FLR 1167, usefully reviewed in Re W, Re A, Re B (Change of name) [1999] 2 FLR 930. There are a number of factors to be taken into account, none are decisive, including the fact of registration, other than that the welfare of the child is paramount. However, there do not appear to be any authorities directly in point on the criteria to be taken into account in determining issues as to the given name of a child. There is nothing in the common law of Hong Kong or the GMO to assist me in making my decision.

28.It is with a great deal of reluctance that I have concluded that there should be no order in relation to the names. That reluctance arises because I do not wish it to be thought that in declining the mother's application in this respect I have in any way given approval to the father in the action that he took in changing the names. His action was quite wrong. However, my decision must be determined by the welfare of the children and not upon the basis of punishing or imposing a penalty on the father for his action.

29.I am satisfied that the daughter is now at an age where the name that is being used by the family with whom she resides is an integral part of the sense of identity that she will now have. The son, at 18 months, has entered the stage of his life where his sense of identity, his name being a part of that, is being established. I have concluded that, in these circumstances, it would not be in the best welfare of the children to change their names again. The mother's application to change the children's names is, accordingly declined.

30.There will be an order nisi that there be no order as to costs, save that the both parties costs are, if required, taxed on Legal Aid Regulations.

Representation:

Cheung, Chan & Chung (Alvin Cheng), solicitors for the applicant

Y. Lo & Co. (Ms. Nung), solicitors for the respondent