A C v. A S

HCMP 5425/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 5425 OF 2001

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BETWEEN

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Before: Hon Lam J in Chambers (not open to public)

Date of Hearing: 22 July 2005

Date of Decision: 29 July 2005

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D E C I S I O N

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1.On 2 November 2004, the Official Solicitor took out a summons seeking to de-ward JS with the custody care and control be given to his mother.  The matter was set down for argument before me on 22 July 2005.

2.Since the fixing of date for argument, the Official Solicitor considered that in view of certain developments since the issue of the summons, he should not proceed with the application. Having read the latest affidavit filed on his behalf accounting for the position, and having heard parties on the matter, I am of the view that the stance of the Official Solicitor in seeking to withdraw the application is appropriate and responsible.  I do not propose to go through what has been said in the affidavit.  I think it is clear to all the parties why it cannot be in the best interest of JS to de-ward him at this stage.  I therefore granted leave to the Official Solicitor to withdraw the application on 22 July 2005.

3.Counsel for the father asked for his costs of the summons be borne by the Official Solicitor.  Ms Yeung submitted that the Official Solicitor should not have taken out the application in the first place and undue weight was placed by the Official Solicitor in the non-renewal of the passport of JS.  She submitted that the overall welfare of the ward clearly calls for the continuation of the wardship.

4.Mrs Williams, who appeared on behalf of the Official Solicitor, resisted the application for costs both on the merits as well as jurisdiction.

5.The mother, who appeared in person, apparently took a neutral stance on costs.  She did not ask for her own costs. Her primary submission is that the wardship proceedings have been prolonged and these have cause stress and hardship on her as well as the ward.  She expressed the wish to have the proceedings concluded as soon as possible.

6.I propose to deal with the jurisdiction point first. Before I do so, however, it is necessary to set out a bit of the history of these proceedings and how the Official Solicitor got involved.

7.The wardship proceedings were commenced by the father on 10 October 2001 as a sequel to my determination in the Hague Convention proceedings, AC v AS [2002] 1 HKC 441.  The father primarily sought order for joint custody and telephone, visiting and staying access.

8.It is a sad state of affairs that the question of access remains unresolved up to today.  However, in my judgment, it is a situation for which both parents are responsible.  I would take this opportunity to remind them that it is high time that they should try harder in putting aside their differences in the past and really make some positive and effective efforts (which must necessitate sacrifice in other aspects of their lives) in coming to term with the reality that JS has a father and mother who not only live apart, but also live in different parts of the world.  The father must get to grip with the fact that the mother is the primary carer of JS and at the moment JS is much closer to her than him.  Given the long period of separation, it might take some time before JS and the father could build up a normal bondage between father and son.  At the same time, I would repeat what I said in Paragraph 60 of my judgment in AC v AS [2002] 1 HKC 441 to the mother.

9.The parents should appreciate that all efforts by this court, lawyers, social workers and child psychologists could be futile unless they start to work co-operatively with each other.  Focusing on the criticism of the other parent will not take one very far if he or she is not willing to accept that more should be done on his or her part.  I regret to say that based on my knowledge about these proceedings and what had transpired before me, I get a distinct impression that the father and mother are dealing with each other as adversary.  They appears to conduct the present proceedings as an adversarial process, each of them have at times tried to achieve his or her objective in denying the wishes of the other.  Let me make it clear to them that this sort of attitude will not help them and has no place in wardship proceedings.  The paramount consideration of the court is the welfare of the ward and the wishes of the parent are not the primary concern.  I will urge the parties not to labour under what I call the “if he/she wins, I lose” mindset.  There should neither be any winner nor loser in proceedings of this nature.

10.Coming back to the history of these proceedings, I would just recite some significant developments regarding the preparation of the matter for substantive hearing.  There were numerous other hearings (regarding interim access and leave to take JS out of jurisdiction) which I do not find necessary to mention here.  Directions were given by this court on 5 December 2001 as to the future conduct of the wardship proceedings.  The matter came back to me on 4 February 2002.  The mother did not comply with my previous direction as to the filing of evidence.  Further directions were given on that date.  Amongst other things, international social investigation report and psychiatric assessments were called for.  The court also granted leave to the parties to set down the matter for trial.  The mother was again late in compliance with direction for filing of evidence.  Extension of time was given and the affirmation was eventually filed on 19 March 2002.  The mother asked for custody of JS.

11.At a hearing on 15 May 2002, solicitor for the father indicated to this court that the father would confine to asking for access and he would no longer pursue custody, care and control.  The father filed his affidavit in reply on 25 July 2002.

12.On 30 August 2002, the mother made an unsuccessful attempt to de-ward the child.  Fresh directions for outstanding matters leading to trial were given and the trial was scheduled to take place between 31 March and 4 April 2003.

13.Again, the parties failed to comply fully with directions and the time-table for filing of evidence and other documents was revised on 23 January 2003 with a view to keep the scheduled trial dates.

14.For reasons I need not go into in this judgment, shortly before the scheduled trial dates, the parties became unrepresented.  The mother was in default in compliance with certain directions for preparation for trial.  In order to ensure that this court shall have professional assistance at the trial to safeguard the interest of the ward, the court appointed the Official Solicitor to act for the ward in these proceedings on 17 March 2003.

15.At a further call-over hearing on 26 March 2003, the mother was absent and unrepresented.  Although a counsel appeared, she initially told the court she had no instructions to appear on behalf of the father that morning.  However, she subsequently changed her position and told the court she had instructions to appear for the hearing of 26 March 2003.  But she said the father would not be legally represented at the trial.  The Official Solicitor, having read the papers, informed the court that there was no realistic chance of the trial going ahead as scheduled.  Against such circumstances, this court reluctantly vacated the original trial dates with directions, including the filing of report by the Official Solicitor.

16.Solicitors for the father obtained leave to cease to act for the father on 9 June 2003.

17.The Official Solicitor filed his report on 11 June 2003.  I will not repeat what was said in the report but it is perhaps worth reminding the parents of what the Official Solicitor said in the last two paragraphs.  Instead of quoting from the same, I will just invite the parties to read it themselves.

18.After the report, the parents did not take any active steps in these proceedings. In the meantime, the Australian passport held by JS expired and the Immigration Department considered that they were unable to extend his visa for stay in Hong Kong without a valid passport.  That prompted the Official Solicitor to bring up the matter with this court.  I wish to emphasize that although the passport issue was the trigger point, I accept Mrs Williams’ submission that the Official Solicitor had taken into account of other relevant factors before the summons of 2 November 2004 was issued.

19.Regrettably, I come to the conclusion that had both parents been more conciliatory with each other and placed JS’ interest before his or her own in dealing the passport problem, the Official Solicitor would not need to issue the summons.  I do not want to be unduly critical but I must say that the Father does not emerge from this episode with much credit.  It is primarily due to his refusal to endorse his consent that JS’ Australian passport could not be renewed.  According to the Mother, he refused to entertain the Mother’s suggestion to get a French passport for JS from the French Consulate General in Hong Kong.  He allegedly seems to think that some mileage could be gained by insisting that JS should go to France to get a French passport.  I would not attach too much weight to that allegation of the Mother since she only mentioned that at the hearing of 22 July and the Father effectively had no chance to respond to the same.  But I will say this.  If those allegations have any substance, the Father will be well-advised to reconsider his position in the light of what I said above as to the proper attitude towards these proceedings.

20.On the other hand, the Mother should have been more forthcoming with the Official Solicitor in the possibility of seeking a review by the Australian authority as to the renewal of the Australian passport without the endorsement of the Father.

21.The role of the Official Solicitor in wardship proceedings was examined by Ormrod LJ in Re G (1982) 3 FLR 340.  The following dicta of His Lordship is, if I may say so respectfully, an apposite description of the part played by the Official Solicitor in the present case,

“In custody cases the Official Solicitor is much more than a mere guardian ad litem.  He is at once an amicus curiae, an independent solicitor acting for the children, an investigator, an adviser, and sometimes a supervisor.  Perhaps the nearest analogy is that of counsel to a tribunal of enquiry, a relatively new office but a valuable one.  This, however, is not a new role for the Official Solicitor, as is borne out by Supreme Court Practice [1982] Vol. 2, p.987, para.3452A where the following passage is to be found:  ‘The Official Solicitor is a servant of the court and may at any time be called upon by a judge to carry out an investigation or to assist the court to see that justice is done between the parties (see Harbin v Masterman [1896] 1 Ch 351, per A.L. Smith LJ at p. 368, and per Rigby LJ at p. 371).  He is appointed to act where, if this were not done, there would be a denial or miscarriage of justice.’”

22.As regards the incidence of costs of the Official Solicitor when he is appointed by the court to act for an infant, Ormrod LJ said,

“The first and most important of these considerations is that a judge, whenever he thinks it would be right to invoke the assistance of the Official Solicitor, should feel free to do so without being constrained by anxiety about the possible effect in relation to costs on one or other, or both, of the other parties to the proceedings.  It is one of the many valuable functions of the Official Solicitor to provide such assistance, and he is funded by central funds for this and other purposes.  This consideration applies particularly where the Official Solicitor is appointed guardian ad litem on the judge's own motion (see Matrimonial Causes Rules 1977, r. 115).  That does not, of course, mean that it will not be just in some cases to order one or other of the parties to bear the costs rather than the taxpayer.”

23.In Northampton Health Authority v The Official Solicitor [1994] 1 FLR 162, the Master of the Rolls cited with approval the following dicta of Sheldon J in Re H (unreported) 30 October 1986,

“In my judgment, however, when a decision has to be made whether or to what extent a local authority or any other party should be ordered to pay the Official Solicitor's costs, it matters not whether the proceedings in which the question arises are matrimonial proceedings, wardship cases or adoption applications; whether his intervention is invited by the court, requested by the parties, or prescribed by regulation.  In each case, in my opinion, the decision lies in the unfettered discretion of the trial judge, to be exercised in accordance with similar general principles.  One of these, in my view, is that, as the parties, in whatever circumstances, have become involved in a situation in which it has become necessary to seek the assistance of the Official Solicitor, it is not unreasonable for him to ask that they should meet or contribute towards the cost of his intervention.  In some cases there may be factors or considerations which will lead the court to refuse such a request. In my judgment, however, there are none such in the present instance.”

See also Re AW [1993] 1 FLR 62; Northampton Health Authority and B v Croydon Health Authority (No 2) [1996] 1 FLR 253.

24.Coming back to the jurisdiction point, the submission of Mrs Williams is based on Section 52A(2) of the High Court Ordinance.  Unlike the position in England, the court in Hong Kong does not have the power to make an order for costs against non-party.  She submitted that since the ward is only a subject but not a party to the proceedings, the Official Solicitor who was appointed by the court to represent his interest is also not a party.

25.In勞慧聲經營之恆利公司 v安聯保險香港有限公司, HCA 4084 of 2001, 4 February 2005, at Para.35, I adverted to the distinction between party to the action or the substantive proceedings and party to the specific application before the court.  In my judgment, the expression “relevant proceedings” in Section 52A(2) should be construed as referring the specific application in the context of which the court is asked to make an order for costs.

26.I cannot ignore the fact that the summons of November 2004 for de-warding was taken out by the Official Solicitor.  Hence, irrespective of the position of the Official Solicitor as party to the substantive wardship proceedings, it cannot be denied that the Official Solicitor is a party to the summons of November 2004.

27.I do not think the Official Solicitor could be absolved from potential liability for costs of the summons of 2 November 2004 by relying on Section 52A(2).

28.Mrs Williams referred this court to Enfield London Borough Council v Mahoney [1983] 1 WLR 749 regarding the liability of Official Solicitor for the costs of other parties.  Although that was a case with an entirely different factual background, I find the following passages in the judgment of the Court of Appeal equally applicable in the present circumstances,

“…[The Official Solicitor] is unique within the system of the administration of justice.  There is no one and nothing else like him.  He comes upon the family scene to help the court in very sensitive matters.  He enters upon other scenes in innumerable ways …  The judge adopted the understandable attitude … that since he, the Official Solicitor, had moved for the failed application, he was in no different position from anyone else …  But I think it would be a positive disservice to the outstanding services which the Official Solicitor can and does render to the courts to bring any possible form of dissuasion to him from acting in cases of this and other similar kinds.  If the Official Solicitor, acting of his own volition, as he very often feels called upon to do, felt that at the end of the day his services in the public interest were going to be condemned in costs, then one can easily envisage that there would be a number of cases where he might be disinclined to act in pursuing some cause or other in the interests of justice.  It is right to say, however, that … the Official Solicitor should not regard himself as always being immune from an order for costs being made against him.  If he should be found to have acted with impropriety or wholly unreasonably, he cannot but expect an order for costs to be made against him.” (per Watkins LJ at p.758)

“In so far as the question of costs is concerned, I entirely agree with Watkins LJ’s judgment.  The Official Solicitor holds a special office.  He is a servant of the court and may at any time be called upon by a judge to carry out an investigation and to assist the court to see that justice is done between the parties. …  In my judgment the Official Solicitor should in no way be inhibited in performing that function and indeed his other functions by any financial consideration.  When the Official Solicitor acting pursuant to his powers makes such an application as this, then whether it succeeds or not it would in my opinion be wrong to make an order for costs against him unless there has been some impropriety or lack of justification.” (per May LJ at p.759).

29.Adopting a similar approach, I do not think the Official Solicitor had acted improperly or without any reasonable justification in issuing the summons.  The Official Solicitor was asked to intervene because this court considered that it could not rely solely on submissions from the parents in coming to a decision that is in the best interest of the ward.  The summons was taken out in the wake of a prolonged period of inactivity on the part of the father in prosecuting these proceedings.  Neither parent saw fit to bring to this court’s attention the passport problem and the Father only instructed a solicitor to act for him again after the issue of the summons.  The Official Solicitor also acted responsibly in procuring a resolution of the ward’s right to remain in Hong Kong with the Immigration Department.

30.Ms Yeung contended that the costs of the summons were occasioned by the Official Solicitor.  With respect, that submission fails to take into account of the history of the matter.  But for the failure of the parents to resolve their differences regarding the renewal of passport for JS, the Official Solicitor would not need to intervene by taking out the summons.  Given the apparent lack of interest on the part of the Father in prosecuting the wardship proceedings with a view to bring it to a conclusion, I do not think the Official Solicitor acted unreasonably in taking out the summons.

31.I therefore hold that the Official Solicitor should not be required to pay the costs of the Father.  As regards the incidence of the costs of the Official Solicitor, Mrs Williams very reasonably indicated that the Official Solicitor would not press for Official Solicitor’s costs of this summons be borne by the parents.  In the light of that, I would not make any order to that effect.  However, I will urge the parents to bear in mind what I have said above regarding such possibility and if the circumstances warrant in the future, this court will not hesitate in making provision for costs of the Official Solicitor instead of leaving the same to be borne by taxpayers.

32.I intend to release this Decision for circulation.  If parties wish to make representation on that, they should do so in writing within 7 days.

Ms Jackie L S Yeung, instructed by Messrs Bernadette Gicquel & Co., for the Plaintiff

Defendant, in person

Mrs Annie Williams, of Official Solicitor, for the ward