Re Y (S-c.) and Y (T-w.) (Minore)

HCMP000681/1982

In re Y (S-C.) and Y (Y-W.) (Minors)

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Coram: Jackson Lipkin, J. in Court

Dates of Hearing: 12th and 13th February 1985

Date of Delivery of Judgment: 13th February 1985 at 11.00 a.m.

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JUDGMENT

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1. This is a matter in which I have already given one judgment setting out the better part of the history: There is no need, therefore, for me to go over it again.

2. On the 13th of February last, having heard all the evidence of the then prevailing respective conditions of father and mother, and that includes homes, finances, etc., I ordered that the care and control of both my wards be committed to the father. At the end of that hearing, I was asked whether it would be all right, without actually altering the Order, for the transfer of the children to be the end of the Easter holidays.

3. The mother disobeyed my Order, the father did not comply with my Order, despite the care that I had tried to take to explain to them that the children were my wards, and that what was being granted to them was only care and control or access. Nothing was done to move Sau Ching to her father, that is nothing was done on the mother's side, and, on the father's side, with an astonishing disregard for his own daughter's welfare, he made absolutely no arrangements for a school for her. It was not until Mr. Patel brought home to him his duty in no uncertain terms, that he did make some arrangements.

4. In that respect I have a report by Mrs. KWOK WONG Shook-han of the 8th of June and by Mr. Patel on the 13th of June. Apparently I was told about this when the matter came before me on the 26th of June, but no action was taken against either father or mother, and I apprehend I followed that course because any punitive action against either of them would only be harmful to my wards. I am not going to be soft-hearted about it in future. If there is any infringement of any of my Orders relating to the wards, I will deal with it as a contempt by either mother or father.

5. Anyway, the little girl moved to her father's, and joined the younger brother in July of last year. By all accounts, these two wards of mine are very happy in each other's company and get on very well together.

6. In an otherwise miserable case, one heartening feature has run throughout it, and that is the unqualified acceptance by both father and mother that the best interest of my wards would be served by the two children being together. That is a sentiment that I wholly endorse.

7. However, in September last, there was an unhappy incident which resulted in Sau Ching leaving the roof of her father, and the matter was brought promptly before me; and I suspended the care and control order in relation to her, and granted the interim care and control to the mother.

8. However, there has been staying access since then, with one or two slight hiccups which I find was nobody's intentional fault. The children, therefore, have been together on alternate weekends.

9. But the time has now come for me to decide their immediate future. I say "immediate" because, as I explained to the father yesterday, no Order in relation to little children is permanent; it can be varied as and when circumstances change. For example, if both of the children were to be with their father and their paternal grandfather, it might be that I would have to reconsider the situation as my female ward approached the age of puberty, because there is no woman in the father's household. Equally, if both children go to live with the mother, it is possible that the matter may have to be reconsidered when the little boy approaches the age of puberty. But both of those lie in the future, and , in relation to the little boy now 5½, in the distant future.

10. Every consideration was given by the Official Solicitor to the Chinese belief that male children are of worth and female children are of little worth. Every consideration was given by the Official Solicitor to the fact that a female child will eventually leave the family, altogether because, upon marriage, Sau Ching will cease to be a Yip, and will belong to the family into which she marries, whereas Yan Wing will always remain a Yip and will, in the fullness of time, be able to offer suitable prayers when his father departs for another word; something which a female child will not be able to do.

11. Those considerations have also been in my mind, but, if the Gods please, such an incident will be many many many years away. I am dealing with a little boy of 5½ and a young healthy father. Yan Wing was born on the 2nd of March 1979, Sau Ching herself is not yet 8. I am dealing with two wards of what is usually described as "tender years".

12. Another happy feature is the undoubted love and affection that the father has for Yan Wing and Yan Wing for his father, and I understand that Sau Ching also has deep affection for her father, and I am inclined to believe that despite from the incident of last September, the father has affection for his little daughter.

13. The mother appears to love both of the children, although at one time, due to circumstances beyond her control - pressure from her then husband and pressure from Chinese beliefs - she was prepared to let the children be separated, keeping the daughter with her and letting the son go to the father - even though she did not consider that to be in their best interests.

14. I must deal with the situation as it is today, the 13th of February. On all the evidence written and oral that has been put before me, there can be no doubt that, at least for the foreseeable future, the best interest of these wards would be served by them being together under the care and control of the mother.

15. The less I say about this situation, the better for the parties, because it is quite apparent from what the father said to me on the last occasion, and what the father said to me today, that he is still very bitter about the dissolution of his marriage.

16. But, as I have explained to the father, this is not a divorce suit, this is a wardship matter, and I am not concerned directly with his personal feelings or his ex-wife's personal feelings: I am concerned solely with the interest of my wards, and there is no need for me to repeat what I said in my judgment of February 1984 on that score. Unless therefore this matter is to go elsewhere, that is all I propose to say.

17. I have reached a firm conclusion that the only proper Order that can be made in the interest of my wards at this stage is that the care and control be vested in the mother. The question is from what date.

18. Now, if the children are separated at the moment, quite clearly Sau Ching will have to be taken to her father on the 20th of February. Equally clearly, Yan Wing will have to be taken to his mother either later that day or on the 2nd day of the New Year. The visit to the father and the paternal grandfather clearly and obviously taking precedence over the visit to the mother and the maternal grandparents. Mr. Yip's father is head of this small family, and he must be the first to be visited.

19. Unless any party has any strong views to the contrary, I would suggest that the change be effected on the 2nd day of the New Year, when Yan Wing goes to "Bai Lin" at his mother's home. (Discussion between the judge and counsel about the date that the change should take place.)

20. That will be the arrangement then. My Order will come into force on the evening of Friday the 15th of February. Both my wards will go to "Bai Lin" at their father's home on Wednesday the 20th. They will stay with their father from the 23rd of February to the 28th of February and return to their mother on the night of the 28th of February. Both my wards will stay with their father for the weekend of 2nd and 3rd of March. And the staying access that was ordered in paragraph 3 of my Order of the 13th of February will apply in reverse, with staying access at their father's home - starting again on the 16th of March.

21. Yes, Mr. Yip, I will see that that is all written down for you before you leave the courtroom. There will be no misunderstanding about this - father or mother - these Orders are to be obeyed.

22. If any alteration should be proposed, then it must be brought before me at the earliest possible moment, day or night.

23. Yes? is there anything else on the wardship before we go on to the question of money?

(Discussion between the judge and counsel about when the Order should be effected on 10th February.)

24. Very well, I will say the afternoon, and not the evening, of the 15th.

25. Copies of school reports on both my wards are to be sent regularly to the father, and copies of the school reports are also to be sent regularly to my clerk, so that I may check on their progress as well as the father and mother.

26. Yes, well, I shall rise for 15 minutes.

11.36 a.m. Court adjourns into Chambers

Representation:

Appearances: (J.) Leung for the Mother Siddall for the Official Solicitor The Father in Person

Solicitors: Victoria Y. Chan for the Mother

Helen A. Lo & Co. for the Official Solicitor