Wong Chiu Ngar Chi v. Wong Hon Wai, Linus

IN THE COURT OF APPEAL

1986, No. 166
(Civil)

BETWEEN

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Coram: Hon. Cons, V.-P., Kempster, J.A. & O'Connor, J.

Dates of hearing: 5th and 6th February, 1987.

Date of delivery of judgment: 6th February,1987.

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JUDGMENT

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Cons, V.-P.:

1. This appeal, from a decision of Penlington J., relates to 2 boys now aged approximately 10 and 6½, who were made wards of the Court in August 1982.

2. The mother and father had married in 1975. At that time the mother was a well known television actress and the father was employed in the electronics industry, then experiencing boom conditions. The marriage was not a success, the mother separating from the father in 1982 taking the two boys with her. From then until shortly after the divorce 2 years later the father had no access to them. However in 1984 an order was made and as a result of the access then granted the father has apparently established a good relationship with the boys. The judge below found that he has a genuine affection for them which is reciprocated.

3. In December 1984 the family circle of the two boys was increased by the marriage of the mother to a film producer and part-time actor with whom she had been familiar for sometime. At the time of the proceedings below the mother was expecting his child, which we understand has since been born.

4. In July of last year the mother's solicitor wrote to the father asking for his consent to remove the two children from the jurisdiction. She and the stepfather wished to emigrate and settle in Sacramento, California where the stepfather's mother resides and where the stepfather has considerable family. A house is available for them and places in the local elementary school have been found for the children. There is apparently no difficulty from the immigration authorities and the location is convenient for the film industry in which the stepfather expects to be engaged. He has, as the judge put it, prospects which are good and probably considerably better than they are in Hong Kong. Should those prospects not be realised he has his qualification as a pharmacist to fall back upon. The mother does not intend to work over there, indeed she has ceased active work for a year already.

5. The husband was not disposed to give his consent to the request, and in August last year an application was made to the Court. Affidavits were filed as usual and the hearing itself, with viva-voce evidence, went on for many days. Judgement was reserved. Then following a detailed consideration of the evidence and the appropriate law, the judge came to the conclusion, that it would be in the best interests of the children that they should go to America with their mother and stepfather. Two days later, after hearing counsel further, he made an order that the children should cease to be wards of the Court on the date of their departure from Hong Kong and that the mother should then assume their custody as well as their care and control. He made provision for future access. The father has appealed.

6. In opening the appeal Mr. Eddis, who appears for the father, applied to adduce further evidence, but after pursuing the application for sometime he decided, in my view wisely, to withdraw it.

7. No complaint is made that the judge failed to consider any of the factors which he ought to have done. Indeed it is very apparent from his detailed judgment that he did not. Nor it is' suggested that he considered anything that he ought not to have done. What is complained of is the balance that he struck, and I think the substance of the appeal can be fairly summarised by saying that he underestimated the effect of uprooting the two boys from the way of life to which they have become established in Hong Kong and he over emphasized the effect that the refusal of leave to take them out of the jurisdiction might have upon their mother or stepfather and thus upon the children.

8. The basic principle is that the welfare of the infants is the first and paramount consideration for the court in any application of this kind. But there is a secondary principle, or what may be called a “guideline”, well established by cases such as Poel v. Poel[1] , Nash v. Nash[2] and Chamberlain v. de la Mare[3]. For example Poei v. Poel[4] Sachs L.J. said this .-

“When a marriage breaks up, a situation normally arises when the child of that marriage instead of being in the joint custody of both parents, must of necessity become one who is in the custody of a single parent. Once that position has arisen and the custody is working well, this court should not lightly interfere with such reasonable way of life as is selected by that parent to whom custody has been rightly given. Any such interference may, as my Lord has pointed out, produce considerable strains which would not only be unfair to the parent whose way of life is interfered with but also to any new marriage of that parent. In that way it might well in due course reflect on the welfare of the child. The way in which the parent who properly has custody of a child may choose in a reasonable manner to order his or her way of life is one of those things which the parent who has not been given custody may well have to bear, even though one has every sympathy with the latter on some of the results.”

9. In Chamberlain v. de la Mare[5] Griffiths L.J. put it this way -

“The welfare of young children is best served by bringing them up in a happy, secure family atmosphere. When, after divorce, the parent who has custody of the children remarries, those children then join and become members of a new family and it is the happiness and security of that family on which their welfare will depend. However painful it may be for the other parent that parent has got to grasp and appreciate. that fact. If a stepfather, for the purposes of

his career, is required to live elsewhere the natural 'thing would be that he will wish to take his family, which now includes his step-children, with him, and if the court refuses to allow him to truce the step-children with him he is faced with the alternative of going and leaving the family behind which is a very disruptive state of affairs and likely to be very damaging to those step-children, or alternatively he may have to throw up his career prospects and remain in this country. If he has to do that he would be less than human if he did not feel a sense of frustration and, do what he may, that may well spill over into a sense of resentment against the step-children who have so interfered with his future career prospects. If that happens it must reflect upon the happiness and possibly even the stability of this second marriage.”

10. Mr. Eddis has suggested a gloss upon that guideline, that the desire of the stepfather and the mother to emigrate would be sufficient in the case of very young children, but that more than desire must be shown, indeed some form of necessity must be established, before the Court will disrupt the way of life in which the step-children have become rooted. With every respect to him, I see no justification for such a gloss in either the words or the facts of the cases to which we have been referred. A judge will obviously bear in mind the reasons for the suggested move, and the lack of a genuine or proper motive - or, as Winn L.J. called it in the Poel case¹, "a legitimate motive" - may indicate that the desire to move is not reasonable. But these considerations do not qualify .the guideline so well established. They relate only to its application.

11. Then it was suggested that in the present instance there would be no frustration, bitterness or resentment because the wife had made an unqualified offer to remain if the order should be refused, and furthermore because it was not important for the stepfather that he should go at this time or even at all to America, being, so it was suggested, very well known in the film industry throughout Asia and the Far East. It may perhaps be open to question whether the wife's offer to remain if necessary was completely unqualified. She said in her affidavit in September -

"In all the circumstances of the matter it would be in the best interest of the children for them to emigrate to the United States of America as part of the family. In case there is any doubt about the matter I wish to state quite categorically that as much I would like to take this opportunity to go to the U.S.A. and despite my belief that it would be in the best interest of all concerned including my husband and unborn child. If the wards were not permitted to go with us we would abandon our plans and remain in Hong Kong. There is no way that my husband and I would contemplate living apart from the children and abandoning them then to an uncertain life of the defendant."

And the judge referred to her evidence as being that the move had been planned for a long time and that she was very anxious to go.

12. In any event the submission put forward, with every respect, seems to me to ignore one of the very basic traits of human nature. Bitterness or resentment may not perhaps be inevitable, as the judge thought, for there are some people of a very saintly nature. But at least there must be a risk, as Dillon L.J. put it in Lonslow v. Hennig[6] about which the court would be extremely apprehensive.

13. The factors which the judge is said to have underestimated are set out in the Grounds of Appeal -

"(a) the quality of the love, affection and emotional ties between the two children (hereinafter referred to as 'the former Wards') of the marriage and the Defendant;

(b) the possible distress and/or emotional unhappiness on the former Wards of removing them from regular contact with the Defendant in their forthcoming formative years;

(c) the length of time that the former Wards have spent in Hong Kong;

(d) the effect of a change from living in what was for the former Wards an essentially Chinese standard and Chinese style of living to that of living for their next formative years as aliens in what would be to them an essentially foreign country hitherto visited solely for the purpose of taking holidays;

(e) the effect of a change of education from a religious school of proven worth and sound learning to an American State School about which insufficient evidence was provided;

(f) the wishes of the former Wards as expressed to the Social Welfare worker who spoke to them."

14. Mr. Eddis in his argument enlarged upon these considerations and took us through the evidence appropriate to them. All of them are factors of considerable force. It is sufficient however to say that he has not persuaded me that in the circumstances they are of such force that the judge was obviously wrong in the ultimate conclusion to which he came.

15. Complaint is also made that the judge improperly took into account futuristic views of the situation, principally by the words in his judgment -

"If such a move will be made, and one must have some regard to the political future of Hong Kong in that respect, it seems to me it should be made as early as possible."

16. The judge had just made reference to Bevan v. Bevan[7], suggesting it as authority that a move should not be made in the later stages of a child's education. I find it difficult for myself to appreciate exactly what he had in mind by his reference to the political future of Hong Kong, but I do not understand him to say that that in itself was one of the reasons for his decision.

17. As an alternative to rescinding the order made by the judge it is suggested that we should make the leave to take the children out of the jurisdiction subject to the consideration of a report by a child psychiatrist as to the opinions of the children. This alternative is based on what it has been called "misinformation" by the Social Welfare Officer who submitted, at the request of the judge, a report which included what the children had said to her. During the course of her interview with them she suggested to them that the mother might go to America without them, which placed them in something of a quandary. At no time were the children disabused of that impression. It is suggested that if they had been disabused of that erroneous impression they might have come out much more strongly in favour of remaining in Hong Kong. It was an alternative that was not pressed with much vigour by Mr. Eddis. The personal desires of children of years as tender as those in the present instance, whether expressed directly or through a child psychologist, are not, factors of great weight and I am not persuaded that this Court should make such an alternative order.

18. I turn then to the question of wardship. Even if we leave undisturbed the judge's order giving leave to take the children out of the jurisdiction, we are asked to reinstate the order of wardship of which the judge divested them. The judge relied on the case of Bates v. Morley[8] , where a mother who was taking the children out of the jurisdiction had given an undertaking to return them should she be called upon to do so and provisions had been made for them to visit from time to time their father in England. The court took the view that having regard to the substantial connection with England thus continued it would be appropriate to continue the order for wardship. The present case is similar in both those respects. We understand that an undertaking either has been given privately or if not, will be given, and provisions have been made for access.

19. Mr. Eddis has pointed out to us several advantages that would follow from the continuance of the wardship order, for example, keeping track of the children should their whereabouts be moved, keeping some supervision of their health and education and perhaps resolving problems should they arise over access. It seems to me that these ends can equally be achieved under the provisions of The Guardianship of Minors Ordinance. On the other hand I can envisage practical difficulties, in themselves perhaps only small, but which if repeated frequently could easily cause friction between the new family in America and the father in Hong Kong.

20. It seems to me that when a court makes an order allowing the mother to take the children out of the jurisdiction to live with the stepfather in another jurisdiction, there is an implication in that order that the Court is not only satisfied that the new environment will be suitable, but that it has confidence that the mother and stepfather will be responsible in the proper upbringing and education of the children and will provide them with a happy and secure home. The Court, while encouraging the children to continue their relationship with their natural father, should be hesitant to do anything which might tend to undermine the stability and happiness of that new home. I therefore for my part would not interfere with the order to cease wardship.

21. The mother has brought a cross appeal with regard to maintenance. By consent an order was made in 1984 for maintenance at the rate of $2,000 per month based on half of the mother's estimate of the cost of bringing up the children. After the first part of the judgment had been delivered on the 10th November informal application was made that the payment of maintenance should be, discontinued. On the 12th November the judge said this -

"The defendant is at present paying $1,000 per month for the maintenance of each of the two children. This was based on the plaintiff's estimate of the actual costs of their maintenance and is about half of what she estimated in 1984. The defendant has assured the court that he is able to pay the airfares necessary for the children to come to Hong Kong but, in my view, on the departure of the wards to live permanently in the United States of America and bearing in mind the expenses that the defendant will have in bringing them to Hong Kong or himself going to see them in the United States of America, the provision of maintenance should cease as from the end of November."

22. Miss Leong for the mother has pointed out that prior to the hearing the father had steadfastly refused to provide any discovery as to his means. During the hearing there was virtually no evidence as to means, except that the father conceded that he could afford to pay the airfares, a concession which was not qualified by any reference to cessation of maintenance. Furthermore that there was no evidence at the hearing as to the probable costs of living in the United States.

23. Mr. Eddis has pointed out that the application to discontinue maintenance was not in fact made upon any financial necessity, but rather upon the ground that the father, by reason of the children's going to America, would lose a substantial part of his relationship with them and that he would also be settled with the extra expense of paying his own fares to the States and the children's fares to Hong Kong.

24. For myself I have some doubt as to whether that is a valid reason for varying an order for maintenance, although I can appreciate the logic of it from the father's point of view. Orders for maintenance are made for the benefit of the children, and should not be varied only out of a sense of fairness to the father, without considering the effect upon the children. However I understand that my doubt is shared by neither of my brothers, who are influenced by reasons which it is difficult to gainsay. I would not dissent from the order that they are about to propose.

25. For these reasons I would dismiss both the appeal and the cross appeal.

Kempster, J .A.:

26. I gratefully adopt all that has fallen from my Lord the Vice President in the context of the appeal. It is to be emphasized that Penlington J. was exercising not only the inherent jurisdiction of the Court over minors but also that provided by the Guardianship of Minors Ordinance Cap. 13.

27. When required to resolve financial disputes on the dissolution of a marriage the courts seek, in the interests of the former parties to the union, to provide for "once and for all" payments whenever that is practicable and thus for a clean break. Such an aim is rarely apt in relation to the provisions to be made for the custody, care and control of the children of the former marriage, when, as in the instant case, love and concern for them is forthcoming from the natural father and mother alike. But, as is illustrated by the authorities cited by my Lord, an analogous approach has been developed which recognises the fact that the children will necessarily and as is in their own interests, the critical yardstick, become attached to and identified with the family of the parent to whom their care and control has been committed. If the adult members of that family, including of course the step parent, for what may reasonably be thought good reasons, determine that their future lies outside the jurisdiction of the court which has hitherto made custody orders and other provision for the children, the Court, still concerned, above all, for their interests, will be slow to stand in the family's way. As his careful judgment demonstrated, that was the approach which Penlington J., who had all the advantages of hearing the relevant parties in the witness box, adopted. I would decline to interfere with the exercise of his discretion on the basis of over or under emphasis of factors which unquestionably he took into account. Further to leave the children wards of this Court, once it is accepted that their future lies in California, would be wholly unrealistic, tend to give them a sense of insecurity and render it more difficult for the natural father to accept present realities.

28. In relation to the mother's cross appeal against the judge's refusal to order maintenance, once the children have been removed from the jurisdiction it is important to consider the basis upon which the judge once more exercised his discretion. He took two factors into account, one being the cost of their fares, and the other the removal of the children from Hong Kong. The judge implicitly found that continued financial obligations by the natural father would militate against the recognition by all parties concerned of the realities of the new situation to which I have just referred. No injury in a financial or other sense will be occasioned to the children by this exercise of the judge's discretion. The evidence before him showed that the mother and stepfather had resources enough to provide for their well being and continued education. I would not interfere with the judge's order in this regard either.

29. In the event I agree that the appeal must fail and also would dismiss the cross appeal.

O'Connor, J.:

30. In my opinion the trial judge did not err in the exercise of his discretion and I would dismiss the appeal on the grounds set forth by my brothers and I would dismiss the cross appeal on the grounds set forth by my brother Kempster.

Miss J. Leong (M/s Helen A. Lo & Co.) for Plaintiff/Respondent

F. Eddis, Q.C. & Ronald Tang (M/s P.C. Woo & Co.) for Defendant/Appellant

[1]  (1970) 1 W.L.R. 1469

[2]  (1973) 2 All E.R. 704

[3]  (1983) 4 F.L.R. 434

[4]  at page 1473

[5]  at page 445

[6]  (1986) 16 Fam. Law 303

[7]  (1974) 4 Fam. Law 126

[8]  (1982) 3 F.L.R. 244