S v. W

HCMP002028/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2028 OF 2000

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Coram: Deputy High Court Judge Gill in Chambers

Dates of Hearing: 27, 30 and 31 October 2000

Date of Judgment: 3 November 2000

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JUDGMENT

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1. This is an application for custody of two children brought in this jurisdiction in wardship proceedings.

2. The parties are husband and wife and parents of the wards. I shall for convenience call them the mother and father. They were married in England in October 1992. The wards are the two children born to the marriage. V arrived in April 1993 and is now aged 7. C came along in December 1995 and is now aged nearly 5. In March 1997 the family moved to Hong Kong. Force of circumstance required the father to return to England in August 1998. Unhappy developments saw a breakdown in the marriage in mid 1999 and the parties discussed a divorce. In December 1999 the father filed a petition for divorce in a County Court. That is pending. Then by originating application of April 2000 the mother applied in this jurisdiction for the children to be made wards of this Court with their custody, care and control granted to her. That was set down for a directions hearing on 1 June. The father's response to service of that was to apply ex parte to a High Court in the UK for a residence order. That resulted in an order of 26 May that the mother return the children to the UK by 16 June and not thereafter take them out without leave of the Court. On 1 June this Court continued wardship with effect that the children were prohibited from leaving this jurisdiction without leave. Back in the UK High Court the residence order of 26 May was on 13 June on the mother's application stayed, pending an application brought in the High Court to determine the appropriate Court of jurisdiction in which custody and other matters relating to the children should be heard, On 23 June his Honour Judge T sitting as a judge of the High Court ruled that this Court in Hong Kong was the more appropriate forum. As a consequence he confirmed the stay of 13 June and discharged the order of 26 May.

3. As a result, after the usual directions orders concerning the filing of affidavits and a Social Welfare report, the application for custody is now before me for determination.

4. Jurisdiction on matters of custody and related issues is conferred on the court by the Guardianship of Minors Ordinance, cap. 13. Section 10 gives specific power to make orders for custody and access as the court thinks fit having due regard to the welfare of the child and to the conduct and wishes of the parents. Section 3, a more general provision, requires the court to regard the welfare of the child as the first and paramount factor, with due consideration for the child's own wishes if he or she is old enough to have formed a proper view, and any material information including that from a Social Welfare report. The father may not per se be regarded as having a superior claim, and the same goes for the mother. Within that framework the discretion of the court is wide. The better to resolve how I shall exercise it in this case I record in summary a history of events I regard as pertinent.

5. The parties were both born and brought up in England. They met at university in the early 80's. They lived together for some years before their marriage in October 1992. He was then 34 and she 32. Their family home was Surbiton, Surrey. Both were working full time. He was a salaried Chartered Accountant. She was working for B having joined the company in 1986. Her employment with the company has continued uninterrupted until the present, save for maternity leave when the children arrived. When they came on the scene the parties employed a nanny to look after them during the working day. Though there is a dispute as to which parent in those days was the prime carer of the children it seems to me and I so find that both contributed more or less jointly to the care and upbringing of the children, fulfilling adequately and appropriately their respective roles as working parents.

6. In late 1995 the father was released from his employment with a generous redundancy payment. He chose then to start up a new enterprise which was to set up shelf companies and sell them to those engaged in IT activity for whom there would be a tax advantage, and thereafter attend to their accounting needs. The undertaking got off the ground, but as events panned out as I shall come to, he was to suffer commercial set backs.

7. In the meantime the mother became the sole breadwinner and, broadly speaking, that has persisted to date. Certainly ever since she has been solely responsible for her own and the children's expenses.

8. In late 1996 B offered the mother the opportunity to work at its Hong Kong office. The position of Marketing Director required relocation in Hong Kong from where she would be required to look after their markets in Singapore, Thailand and South Korea. The parties discussed the offer and in what I am satisfied was a jointly made decision chose to accept. How long it was to be for was not a term of the contract, although it was generally understood that the usual term was 3 to 3 ½ years. The father's business by then being just about up and running he appointed a manager to look after it whilst the family was away. The home in Surbiton was rented out and in March 1997 they made their move to Hong Kong.

9. The mother's relocation was a success. She describes the office as small with compatible colleagues and her own position demanding but rewarding. Her duties include short but regular visits to her markets and to London for meetings and briefing. These mean that for up to 60 days per year she is out of Hong Kong for 2 to 4 days at a time. Otherwise her hours are regular office hours with weekends off. As part of the package B is responsible for all the rent and utilities of the family home, a flat in Repulse Bay, 75% of school fees and one return air fare to UK per family member per year. She is also supplied with a car. She says she is paid about twice what she would be getting in London and in disposable terms this is near three times. Despite being the sole breadwinner this gives her enough to save and to meet the cost of additional family expenditure such as travel in the region. As soon as they arrived they employed a Filipina maid called L. She has remained with the family to the present. As well as the usual household duties she looks after the children's needs after they get home from school and on those occasions when the mother is away.

10. The father's move to Hong Kong was less successful. He tried hard to find work within his field but his efforts came to naught. Worse, he was to learn that the manager with whom he had entrusted his fledgling enterprise in England was proving to be incompetent. There were discrepancies in the books and talk of missing money. In August 1998 the parties discussed this development and agreed that he should return to sort it out. He hoped this would take no more than about three months. But it proved to be much worse than he had first thought. He was obliged to commit himself to a prolonged, indefinite period in England whilst he dealt with all the issues, before he could hope to re-engage another manager and return to the family in Hong Kong.

11. There were reunions. In October 1998 the father came out for a visit. At Christmas the mother and children returned to England. In February 1999 there was a family holiday in Australia. But the prolonged absences were to take their toll. When the family was together in England during the summer holidays the father discovered a note and this resulted in the mother admitting to a short-lived affair. This really signalled the end of the marriage. They discussed divorce and the children's future featured prominently. At first it was agreed that they should remain on in England and that the mother would return alone to Hong Kong to work out the remainder of her time here. Then she changed her mind and it was agreed they should after all return with her, but that she would write to B and ask to be returned to London in the summer of 2000. This was, after all, about the time they were expecting to return in the normal course of events. And a move over that summer would give the parties plenty of time to sort out housing and schools and for their return to coincide with the natural break between school years. The mother did write to B, and received a positive response.

12. In September 1999 the father visited Hong Kong. He was concerned to note a somewhat lax attitude of the mother towards the pending divorce and the children's return to England. He took possession of their passports and sent them to England. His intention was to get a residence order to force the mother's hand. With hindsight he now says this was a precipitated and inappropriate act on his part. But it did bring the issue of the children's immediate future into focus, and the parties resolved to put this in writing. The father went back to England, instructed his solicitors to prepare a proposal and brought it back to Hong Kong. The wife took legal advice. By all accounts it suited both parties and was signed before a mutual friend as witness in the Hong Kong Cricket Club. I set out below the terms in full:

13. The words at 7(i) came to be written later, and refer to the mother's willingness to write again to B concerning her professed wish return to UK by the next summer. That also 1 set out in full:

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14. By all accounts the mother did send that letter. Once again there was a positive though not definitive response.

15. The mother's reaction to the agreement and her reasons for signing it are in issue and I shall return to that. In the meantime, the father returned to her the children's passports.

16. Back in England the father instructed his solicitors to prepare the petition in divorce and this was filed and served in December 1999. The mother professed to be caught unawares about this. Suffice to say however that the plans to divorce were by then well advanced and there was and remains no suggestion that the petition will be either defended or withdrawn. A statement of arrangements for the children accompanying the petition detailed their present circumstances. It went on to record that it was intended that they return to England with their mother by August 2000. It further stated: "When the children return to the United Kingdom it is envisaged that father will have shared residence with the mother."

17. The mother took immediate issue with the proposal of shared residence. The father admits that that was a suggestion not hitherto aired and was somewhat unrealistic. In other respects the mother raised no objection; after all this was in line with the agreement.

18. Meanwhile there was regular contact between father and children. This included a campervan holiday in New Zealand in February 2000.

19. In April there was some correspondence about the timing the children's return to UK.

20. Then the mother dropped a bombshell. She wrote to the father, faxing her letter to him on 16 May. I reproduce that in full as follows:

21. The mother explains her action by saying first that she was not a free agent in signing the agreement concerning the return of the children. She says her hand was forced when the father took the passports and sent them away, and that she was desperate to recover them so that the children could not be taken from her. Secondly, she had in the weeks prior to the date she faxed the letter been having increasing doubts about the wisdom of the family's departure from Hong Kong in 2000. She made enquiry and found that she could stay if she wanted - indeed that suited B much more than her return. Having then formed the view that she really did think it best that they stay she had no wish to put the plan into place before discussing it with the father. On the other hand, fearing precipitate action on his part, although by now she had custody of the passports, she instructed solicitors in Hong Kong to file wardship proceedings, and by such filing make the children wards of Court restricting their lawful departure from Hong Kong without leave of the Court.

22. So it was that the father received the fax and wardship proceedings more or less at the same time. In his words, he was devastated. He declined to discuss the mother's proposals, as far as he was concerned she had defied their agreement. In reliance on that he had been advancing things materially in England, with the schooling all sorted for the new school year. So he applied for and was granted the residence order. I have in another ruling expressed surprise that that was made, exparte, for as it stood the mother was given no opportunity to respond and the children as the learned judge would have been told were already wards of this Court. And it carried with it drastic consequences, ordering the mother within a few days to get the children back to England with all the disruption that that entailed. It seems the judge relied heavily on the existence of and the obligations of the Cricket Club agreement for it was referred to in the order.

23. Now it is that the order has been discharged. The mother continues to be employed with B on the same terms. They still live at the Repulse Bay flat, the lease having been renewed by B. L is still employed and assists with childcare. The children both attend Bradbury School, which is administered by the English Schools Foundation, whose curriculum matches that of equivalent primary schools in the UK.

24. The father lives in Surbiton in a flat the parties bought whilst in Hong Kong. He reports that after the early setback his company is now on its feet. After early losses it has since May 1999 turned a profit. He has taken on another accountant who is to become a partner. There is a staff of six. He expects to declare a profit of up to £120,000.00 this year of which his share will be half. Curiously he makes no contribution to the children's expenditure though now he has the means to do so. His view is that the mother has not asked for it, does not need it and could draw on other family funds if she wanted. He is of course anxious to visit the children as often as possible but there has been another setback of a different kind. He has developed a bad back and this was made worse when he had a bike accident. He has been advised he should not undertake long-haul flights so his travel is now restricted.

25. I come now to the respective proposals of the parties.

26. The mother's wish is that she be given custody of the children with leave that they remain in this jurisdiction. She will continue to be employed by B and the children will live with her in the Repulse Bay flat. L had proved to be a stalwart, is reliable and the children have come to love her. She is treated like one of the family. Their's is a settled and safe existence. The children are well established at Bradbury School. They are met off the school bus by L who is in charge of their care until the mother's return from work by 6:30 to 7:00 pm. Their routine includes swimming lessons and gym and playing with friends as arranged in advance. In the weekends there are family outings. The mother finds working at B in Hong Kong stimulating and rewarding, in contrast to what she is told is a stifling environment in the London office, where morale is so low a psychologist is employed to deal with stress and other staff problems. And the higher level of income she enjoys here will allow her to build on her savings for the family's future security. Her plans are that if she is given custody and permitted to stay they will return to the UK in 2004. By that time V will be 11 and due to start senior school. C will be 8. Both will by then be ready to return and able to adjust. In the meantime she believes that their exposure to Hong Kong's multi-cultural society is an important addendum to their growth and development and thus welfare. She is content to continue to support them for as long as is necessary. She has no qualms about the father enjoying generous access with up to three visits by the children to see him in the holidays of each year. He can visit in Hong Kong whenever his own commitments and bad back allow.

27. The father also asks for custody. He wants the children to live with him in his flat in Surbiton and then the family home and garden he intends to buy when the matrimonial assets are divided. It is his view that they are English born to English parents, with extended families in England. England is their home and where they should now be living. Hong Kong was intended all along to be an interlude, benefiting the family financially and as an experience but scheduled to be over by now. Indeed, he understood that to be the mother's view as well until the fateful day in May when he got her fax. The children have been enrolled in schools within walking distance of his home and a few minutes drive from his office. Their places have been held open. His hours of work can be so scheduled that he will be free to pick them up from school and devote the rest of the day to childcare. Though his proposal will if implemented take them from their mother it is only made necessary because of her arbitrary decision to break their agreement, reached he says without pressure or coercion after reasoned discussion and independent legal advice. In fact, he has stated in an open letter that he would not oppose her having custody should she be willing to return to England and the job that is available to her in London. His concern is that in their present Life in Hong Kong there is an over reliance on a paid employee, L, who spends several hours of the average day in sole charge. He has no qualms about L's reliability but thinks it would be far better for the children's welfare if they were in the full-time care of a parent out of school hours, a role he is ready, willing and able to fulfil. He too is generous and flexible in his proposals of access.

28. The mother called in support her sister Mrs K who swore an affidavit and flew from England to speak to it and to be cross examined. There was also evidence from L, and from a friend in Hong Kong called Mrs R.

29. Mrs K said that from her own observations her sister is a caring and loving mother who puts enormous energy into her children, talking to them, reading to them and teaching them. The father on the other hand is more reserved tending to do his own thing when they are around.

30. L said she is 49, married and with three daughters living in the Philippines. She has lived and worked in Hong Kong since 1986. Employed by the mother since the family's arrival in 1997 she describes her as her best employer to date, exhibiting courtesy, respect and kindness towards her. The children have learnt from that; there is none of the rudeness that expatriate children in Hong Kong can be capable of. She spoke at length about the routine at home; how the parents relate to the children and vice versa; how different the children are in temperament and yet how close they are; how excited they are at the prospect of a visit from the father and how pleased they are to see him when he arrives, and upset when he goes, how it has always been the mother who has been the more hands on disciplinarian when there has been misbehaviour.

31. It is her belief that were the children not to be living with their mother they would be heart broken. She herself loves them very much. She has no thoughts of retiring at least whilst the mother remains in Hong Kong, and is ready to stay with her for the duration.

32. Mrs R described herself as a friend who met the parties when the family first arrived in Hong Kong. She was fulsome in her praise of the mother's child caring capabilities and particularly in how she coped with V who could be willful and difficult. She observed that whilst the mother was hands on in her parenting responsibilities the father was content to take a back seat.

33. I come now to the Social Welfare reports, prepared on the Hong Kong side by a Miss W S Wong and in England by her counterpart, a Mrs P Drummond-Roe.

34. Miss Wong reported on the living circumstances of the family in Hong Kong. Reviewing their circumstances as I have already recounted, her enquiry included asking V about her life here. She told her that she preferred the openess of the English countryside to Hong Kong. However, she had no objection to staying on here for three more years. C was of course too young to express a view. L told her that having worked for the family for three years there was a settled relationship between herself and the children who came to regard her as a family member. V could be difficult but not naughty. C she described as lovely, laid back and well behaved.

35. It is I think appropriate to repeat verbatim her concluding remarks as follows:

"Remarks and Recommendation

36. Mrs Drummond-Roe spoke to the father and had the opportunity of watching the interaction between father and children. He told her that he had some reservation about Hong Kong being a suitable environment for bringing up children. But his main concern is that the mother's long hours at the office and commitment to work mean that much of the time childcare is in the hands of a paid employee. Whilst he had no cause to criticize L's methods he told her he believed it preferable that responsibility should as far as possible best in a parent. And he could so manage his own schedule such that if they were to be in his custody that would be the case. When the children were there she saw that they were relaxed and happy with much communication with the father and positive interaction. She believed the relationship to be positive and stimulating. She broached the subject of where the children might be living and invited comment from V. She responded: "Oh yes, we're going to stay in Hong Kong for three years and then come back here." She went on to say she was looking forward to going to her new school in Hong Kong.

37. I repeat her conclusion verbatim:

"Conclusion

38. With this full history before me and details of future plans it is now my difficult and indeed painful duty to resolve what I believe is one of the hardest of judicial tasks to perform, and that is to decide which of two loving and caring parents should be appointed custodian of their children. The task is made the harder by virtue of the fact that they currently live thousands of kilometres apart, meaning access will not be routine and regular as it would be were both to be living in the same parish. It is almost certain that if I am to find in favour of the father, the mother will so arrange her affairs to return forthwith to the UK. Be that as it may, my decision must be based on the present circumstances of the parties and their future plans. These are that the father will continue to live in Surrey in first a flat and then a house and garden with office and schools nearby and flexible working hours so that he can be with the children full-time after school. The mother will for four more years continue to live in her Repulse Bay flat working full-time with assistance in childcare provided by L her live-in maid.

39. I revert now to the law by which I am bound, to which I made passing reference near the beginning of this judgment. When it comes to deciding custody and related issues and the strictures imposed upon it to regard the welfare of a child or children as the first and paramount consideration, the court is likely to pay heed to a number of more particular factors as well to assist in coming to the right or perhaps I should say to the better of two solutions. These could be said to be a check list of matters to consider, they do not amount to presumptions and are readily capable of being displaced by the circumstances of a given case.

40. Amongst those relevant in some way to this case are included the following:

41. Returning to the facts, of particular moment is that the children have spent all their lives with the mother whilst the father, through force of circumstance, has been away from their daily routine now for more than two years. That is quite a long time in their short lives. There has of course been regular contact; telephone calls, visits, holidays and so on. But the inevitable consequence of an order in his favour would be that the children, aged 7 and 4, would be removed from their mother's home and of course their's and thus deprived of her presence in their daily lives for the first time ever.

42. The father whilst inviting me to focus on the negative aspect of the mother's obligations to B to the detriment of those owed the children fairly concedes her entitlement to be favoured as the primary carer. I have already referred to the open letter to the mother's solicitors in which he says that he would have no objection to her having custody were she to return forthwith to England. His stance to contest custody is because her decision to delay her return for four years puts undue emphasis on the role L plays in the children's care.

43. With this in mind it seems to me that it all boils down to whether or not there is or will be a downside in the lives and lifestyles of the children or either of them if they are to continue to live in Hong Kong for the foreseeable future, of sufficient moment that it warrants taking them away from their mother who the father concedes is worthy of assuming the mantle of custodial parent. Their lives are safe and secure. They are flourishing in a home whose members are each other, their mother and the beloved L. They are at a school modeled on the English education system, into which system they will in due course be enrolled. They have friends, extra curricula activity and weekends with their mother. To the extent that it is beneficial they are exposed to life in a multi-cultural city in the Orient. They regularly return to England and keep regularly in touch with the extended family living there. They have regular contact with their beloved father. Moreover - and I pay no small heed to this - the mother is in a rewarding and self-fullfilling job, and is satisfied about what she is doing and achieving. Far from affecting adversely the children's welfare, it seems to me on the contrary this feel-good attitude is more likely to be infectious and to stand them in better stead. In short, I can find no downside.

44. I have sympathy for the father for whom commercially and in the matter of health life has not been so kind. And he was, I think, entitled to be embittered and feel let down when so unexpectedly the mother announced her about face on her own and the children's future. She admits she could have handled this better; I agree. But this is not a court bound by rules of contract, or morals. However she approached that issue it now falls for me to decide having regard to all the circumstances of the case one single, though complex question; namely, should I order that the children be removed from the existing care and control of the mother in Hong Kong and be transported to Surbiton, Surrey to be put in the father's custody there? Applying the check list and having regard to the first and paramount factor of the welfare of the children, I find a clear and compelling answer to the question is that I should not; and so, I will not.

45. This decision will disappoint the father. I hope now it has been made that the parties will sort out access that can be as generous and yet as flexible as the various timetables of those involved allow. There will be liberty to apply in case further intervention is necessary. It goes without saying that a custody order in favour of one parent should not inhibit the rights and duties of the other to play a significant part in the upbringing of the child or children concerned. I am confident that these parents will see fit to value the contribution of the other in what will remain a joint parental responsibility.

46. Before spelling out the orders I pay tribute to the advocacy of counsel Ms Rattigan and Mr Dinan.

47. There will be no order for costs in line with the parties' indication that there will be no application regardless of the outcome.

48. The orders follow.

49. Pending further order wardship will continue. There will be no restriction of travel for the wards or either of them.

50. Care and control of the wards shall vest in the Plaintiff with reasonable access to the Defendant.

51. Liberty to apply.

52. No order for costs.

Representation:

Ms M Rattigan, instructed by Messrs Hampton, Winter & Glynn, for the Plaintiff

Mr P Dinan, instructed by Messrs Erving Brettell, for the Defendant