C v. S

FCMP 216/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

          MISCELLANEOUS PROCEEDINGS No. 216 OF 2001

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BETWEEN 

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Coram :  H.H. Judge Bruno Chan in Chambers

Date of Hearing :  11 – 12 November 2002 & 16 January 2003

Date of Judgment :  30 January 2003

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J U D G M E N T

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1.This is the Respondent Father’s application for defined staying access to his 1 year 10 months old daughter whose custody care and control has already been granted to the Applicant Mother.  It is not in dispute that the Father should have reasonable access to the daughter, but the Mother objects to her staying overnight at the Father’s place at her present young age.

2.The parties were married on 6^th April 1999 in Ontario, Canada, but are actually domiciled in Hong Kong where they live and work, with the Mother as a sales executive of T Ltd., whilst the Father runs his consultancy business for printing companies.  Both are in their 30s.  The marriage however has not been a happy one, with numerous quarrels and conflicts over matters which are not necessary for me to go into, that the parties had actually lived together for short periods only.

3.On 12^th April 2001 the Mother gave birth to the daughter E while the parties were living apart.  Despite this the parties did not move back together and the Mother continued to live with her infant daughter in a rented flat where the Father would visit the daughter from time to time.  One day in December 2001 the Father took the daughter away during access and failed to return her to the Mother, accusing her of not providing proper care for the child which caused her to suffer poor health.

4.On 3^rd January 2002 the Mother came before me on an originating summons under the Guardianship of Minors Ordinance, Cap 13 for an order that she be granted the custody care and control of the child and for the Father to forthwith return the child to her.  Both parties were then represented by Counsel and after hearing their arguments, I granted the Mother interim custody care and control of the child and ordered the Father to forthwith return her to the Mother.  It was then agreed between the parties that the Father should have interim access from 5 pm to 9 pm on every Wednesday and from 10 am on Saturday to 9 pm on Sunday on every alternate week which was incorporated into my said order.  As is normal in contested custody cases, I also called for a social investigation report.

5.In March 2002 the report was submitted to Court recommending that custody of the child should remain with the Mother but that the Father should have the following access : -

1.    visiting access for 4 hours on every Monday and Wednesday;

2.    on alternate week, visiting access on Saturday from 10 am to 9 pm;

3.    on alternate week, staying access from Saturday 10 am to Sunday 9 pm;

4.    staying access for half of Christmas, Lunar New year, Easter and summer holidays;

5.    visiting access from 10 am to 9 pm on the child’s birthday as well as a number of public holidays such as the Ching Ming Festival, the Mid-Autumn Festival, etc.

6.The report concluded that this access schedule should be looked at again when the child starts her primary education.

7.On 19^th September 2002 the parties re-appeared before me when it was agreed that custody care and control of the child be granted to the Mother with defined access to the Father as recommended in the report except staying access which the Mother objects on the grounds that the child is too small to sleep away from her and that the interim staying access which the Father has had under the January order is having a negative or adverse effect on the well-being of the child.  This issue of staying access was therefore adjourned for oral evidence and argument.  In the meantime the parties agreed that the interim access arrangement should be slightly varied as follows : -

1.    for the Wednesday visiting access, the time was to be pushed back by half-an-hour from 4.30 pm to 8.30 pm;

2.    the alternate Saturday visiting access was reduced to 10 am to 2 pm;

3.    the staying access is also cut back from Saturday 10 am to Sunday at 12 noon.

8.This varied interim access arrangement has since been implemented for another 4 months up to the presence.

9.The general principles in relation to the question of access are the same as those governing custody or upbringing of a child as set out in section 3 of the Guardianship of Minors Ordinance, ie. the Court shall regard the welfare of the child as the first and paramount consideration and in having such regard shall give due consideration to the wishes of the child if, having regard to the age and understanding of the child and to the circumstances of the case, it is practicable to do so, and any material information including any report of the Director of Social Welfare available to the Court at the hearing, and shall not take into consideration whether the claim of the Father is superior to that of the Mother, or vice versa.

10.The child in this case, with still 2 months to go before she is 2, is of course too small to express her wishes on the issue of staying access.  Her behaviour towards her parents, however, indicates a good and close relationship with both of them, although quite naturally, she is more intimate with the Mother, according to Paragraph 23 of the Social Investigation Report as follows : -

“23.    Throughout the evaluation, the child’s behaviour indicates that she feels happy and secure in the presence of each parent.  Both parents are able to establish emotional connections with the child.  As observed during home visits, the child appears to have close and good relationship with each parent in general.  She interacts and relates with each parent in a joyful and relaxed mood ……”

11.There is no dispute that the Father, with the assistance of his parents, has been able to render proper care for the child during her stay at his home either for visiting access or overnight access, which has been going on for a year by now as a result of the agreement reached between the parties at the hearing of the Mother’s application for interim custody.

12.The Mother however started to question the suitability of staying access at the child’s tender age in May 2002, and in her 2^nd affirmation of 4^th September 2002 she set out her observations of the child after staying access as follows : -

“46.    Every time after E is returned from the staying access, she has displayed the following signs of emotional distress : -

(a)     She appears to be exhausted, thirsty and much more attached to me than usual;

(b)     She needs more time to sleep than usual;

(c)     Sometimes she even cries and screams at night; and

(d)     She needs to take about 2 to 3 days to adjust to our living environment and gets irritated easily”.

13.The Mother then gave her reasons in details as to why she now objects to staying access as follows : -

“47.     I verily believe that given the tender age of E, a sense of security is very important to her.  It is crucial that she maintains the established living pattern and environment, otherwise, she would loss her sense of security and her physical and psychological development would be affected accordingly.  I have read an article written by a child psychologist which shows that children would suffer from emotional distress when they have to face a constant changing living environment.  A copy of the article written by the child psychologist, Ms Tse Ching Mei and extracted from the children magazine “Pre-School”, Volume 7 is now produced and marked as exhibit “CTC-15”.  Although the said article relates to children of 3 or 4 years old, I verily believe that it would be equally applicable to children of E’s age who would suffer even greater emotional distress than those children as her communication ability is comparative lower.  Therefore, solely for E’s well-being, I would strongly object to the granting of any staying access to the Respondent”.

14.She proposes that staying access shall start only when the child becomes older and begins her primary education.

15.The Father disputes the Mother’s alleged emotional distress suffered by the child as groundless and challenges her to provide substantial proof thereof.  He insists that his staying access to his daughter is important to the build up of their relationship which is in turn beneficial to her growth and development, including reading to her at night, putting her to sleep, waking her up in the morning, cleaning and feeding her, all of which he believes would enhance his relationship with his daughter, which the Mother has been able to enjoy and which he would like to be able to do so for his daughter.  He says all these are well supported by researches done by renowned experts in this area.

16.I must pause here to point out that both parties, and in particularly the Father who is now acting in person, have exhibited to their affirmations numerous articles by child psychologists or other experts on children, all of which were no doubt produced with the good intention to assist me to decide on this very delicate and difficult matter, but none of whom were called to give evidence, nor in fact were their articles or works formally referred to or relied on at the hearing.

17.The only expert in this case, who has given evidence at the hearing and whose testimony is one of the important matters to be taken into account, is of course the Social Work Officer Mr Chan Ping Wa who prepared the report in March 2002 in which he recommended that the Father should have staying access to the child on alternate week and during major school holidays.

18.Admittedly Mr Chan’s report was submitted before the issue of staying access was raised by the Mother, and hence he was not aware of her complaints when he made his recommendation.  He did however shortly before the resumed hearing discuss the issue with the Mother and, having given the matter further thought, he still maintains his recommendation.  His reasons given at the hearing were that, based on his experience, it is normal for children to feel tired and exhibit some emotional distress or anxiety after having spent time with the non-custodial parent, and that even if what the Mother said about the child in this case is true, he believes that one should look at the overall prospective in respect of the child’s growth and development, and in doing so one will have to balance the child’s sense of security and the slight adjustment problems resultant from staying access, with the overall positive effects on her caused by having close contact with her father, and it is therefore his view that it would still be in her best interest to spend overnight with her father even if she did have those adjustment problems as described by the Mother, which he opinates as relatively minor.

19.There is no dispute that the child has settled well in the care and upbringing of her mother, as is well observed by the Social Work Officer in his report as follows : -

“26.    From the gathered information, the child has been residing with her mother and maternal grandparents since birth.  Ms C and the present domestic maid have all along been the primary caregivers to the child.  Seemingly, the child is under the proper care and control of Ms C and the domestic maid in the past 10 months.  The child’s attachment to his mother, the domestic maid and maternal grandparents is based on a positive, satisfying past relationship with them.  To separate her from present relationship and living environment would create emotional distress for her at the age of toddler.  It is more desirable to maintain the present care and control arrangement”.

20.It is also true that any access arrangement for such a small child which involves removing her, albeit temporary, from her settled care and residence will inevitably cause certain disturbance, inconvenience, or even emotional distress to her, and it will always be a balancing exercise to be carried out by the Court as to what kind of access it shall be, as it is almost always in the interest of a child whose parents are separated that he or she should have contact with the parent with whom she is not living.

21.In the case of M v. M (child : access), [1973] 2 ALL ER 81, Latey J. said this in his judgment : -

“…… where the parents have separated and one has the care of the child, access by the other often results in some upset in the child.  Those upsets are usually minor and superficial.  They are heavily outweighed by the long-term advantages to the child of keeping in touch with the parent concerned so that they do not become strangers, so that the child after in life does not resent the deprivation and turn against the parent who the child thinks, rightly or wrongly, has deprived him, and so that the deprived parent loses interest in the child and therefore does not make the material and emotional contribution to the child’s development which that parent by its companionship and otherwise would make”.

22.In this case the Social Work Officer gave a detailed explanation in his report as to why he has come to the conclusion that the Father should have, inter alia, staying access to his daughter, and it would be helpful to repeat it as follows : -

“30.    The child is a toddler who is in need of delicate, decent, stable and consistent care.  During this stage, the foundations of basic trust and relationships are formed.  In the first year of life, the child develops initial attachments to her primary caregiver.  From the gathered information, it is viewed that the child would be more desirably placed under the care and control of his mother.  Mr S, as a natural father, also provides the child with paternal love and concern that considered being crucial to her development and cannot be substituted by her mother.  The intelligence and social enrichment that Mr S embodies can be provided to the child as long as they have adequate time together.  The child can also benefited from the love and concern of her paternal grandparents and other extended family members.

31.    The purpose of visitation plan is to perpetuate the child’s relationship with the non-custodian parent in the most beneficial way.  Through visitation, the noncustodial parent and the child can maintain important face-to-face contact and further establish closer relationship.  Child at different ages has different time-sharing needs.  Therefore, a fixed visitation schedule enacted when the child is 11 months old obviously will not be appropriate for the next 17 years.  A schedule may be alternated as the child and circumstances change.  With reference to the developmental growth of the child at toddler age, she has increasing capacity for memory and cognition.  She already has primary attachment to her mother may begin to tolerate and benefit from overnight time with the visiting parent.  More frequent and shorter visits may be ideal.  Long weekends, holiday time and blocks of vacation provide enriching experiences to her.  However, it is undesirable for the child to have over intimate relationship with Mr S’s girlfriend during staying access, particularly when the child is getting older.  It may cause confusion to the child on identification to her intimate figures.  Since the parents are still locked in some possible conflicts and their resentment as well as unresolved conflict interferes with their ability to focus on the access arrangement, a defined schedule for the parents to follow may help to free the child from parental conflict.  To balance the interest of the child as well as her parents’ expectation, the ideal mode of visitation plan is to make it possible for the child to have weekly day and visitation plan is to make it possible for the child to have weekly day and staying access with noncustodial parent and time-sharing with each parents on alternate Sunday as far as possible.  Since the parents enjoy relative flexible working schedule, it is possible for frequent transition of child for access with the help of domestic helper.  The recommended access arrangement is by no mean exhaustive.  It is advisable for the parents to adopt a flexible manner in access arrangement”.

23.I find the Officer’s conclusion imminently reasonable, and I agree that save in rare and exceptional cases where a marriage has broken down it really is of the first importance in the interests of the children that they should have, and know that they have, the love and support of both parents, and they can only know that, especially if they are very young, as in the present case, if they have real and regular contact with the non-custodial parent, and in this case I believe that such contact should include staying access, and that those adverse effects as complained by the Mother as a result of such staying access which I find to be actually minor upsets to the child, are in my considered opinion far outweighed by the fundamental emotional need of the child to have an enduring relationship with her father as well as her mother.

24.Furthermore, as indicated by the Officer, and having seen and heard the Father in his evidence, I am confident that he will no doubt take proper heed of the Mother’s complaints, if he has not already done so, and will do his best to rectify the situation so as to ensure that his daughter will be least affected by the staying access arrangements.  I do however agree with the Mother that it may be premature at this stage to set out any long term access arrangements for the child and, as suggested by the Officer, the recommended access arrangement is by no means exhaustive and that it should be flexible.  In conclusion I agree only with part of the Social Work Officer’s recommended access by the Father which I order as follows : -

1.    visiting access on every Wednesday or such other weekday as may be agreed between the parties from 4.30 pm to 8.30 pm;

2.    visiting access on alternate Saturday from 10 am to 2 pm;

3.    staying access on alternate Saturday from 10 am to Sunday at 12 noon;

4.    one overnight staying access in Christmas, Chinese New Year and Easter, and such visiting and / or staying access in summer holiday at such time and day as may be agreed between the parties.

25.To assist and hopefully to provide counselling to the parties, I believe a supervision order by the Director of Social Welfare for a period of 12 months would be appropriate in the circumstances.

26.Lastly, on the questions of costs, of which several have been reserved, I believe that there should be no order as to the costs of and incidental to custody and access hearings including those reserved on 19^th September 2002, as costs should follow the event, but the Father should be held liable for the Mother’s costs of her application for interim custody reserved on 3^rd January 2002 for the reasons set out in my decision given at that hearing, such costs are to be taxed on party and party basis with certificate for Counsel.