R v. N

FCMP 103/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS CASE NO.103 OF 2008

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BETWEEN

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Coram : Her Honour Judge Chu in Chambers (Not open to Public)

Date of Hearing : 6 May 2009

Date of Handing Down of Judgment : 11 May 2009

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J U D G M E N T

(Appointment of Official Solicitor)

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Introduction

1.This is an application by the Respondent (“W”) for an order that the Official Solicitor be appointed to act as guardian ad litem of/represent the three children of the family to safeguard the children’s best interest.  In other words, W applies for the children to be separately represented.  The application is opposed by the Petitioner (“H”).  There are 3 children of the family, the two elder ones are twins, namely K, a son, and S, a daughter, both aged about 13½ and the youngest one a daughter, aged about 7-.

2.These proceedings started in July last year after 3 incidents of alleged violence and/or emotional behaviour of W.  H issued an Originating Summons on 8 July 2008 for, inter alia, custody of the 3 children, W be restrained from molesting H and the children, and for an ouster order.  On the same day, he issued an ex parte summons seeking a non-molestation injunction and a power of arrest be endorsed on the order.  The ex-parte order sought was granted on the same day.

3.Eventually on the return day, 16 July 2008, by consent, the injunction application was resolved by the parties providing mutual non molestation and other undertakings and for H and the children to move out of the matrimonial home, leaving W in occupation thereof.  At the same time, both parties agreed to W having supervised access to the 3 children.  The parties further agreed to jointly appoint a psychologist to help the family.

4.Thereafter, Dr. Levy was appointed jointly by the parties to help the family to resolve their difficulties.  There was also a social welfare report called for by this Court, which was submitted on 15 October 2008, in which the social welfare officer recommended interim custody to H, with supervised access to W, and a recommendation that W and the children are to receive counselling from a psychologist on their parent-child relationship.

5.The parties returned to the Court for directions on 2 December 2008, by which time Dr. Levy’s 1^st Report had been received, so had the 1^st Social Welfare Report and 2 other reports on W’s then mental condition.  At that hearing, W agreed that she would take individual counselling to develop appropriate parenting strategies for interacting with and managing the children effectively and to attend therapy.  As a result, at that hearing, by consent, access by W was to continue to be supervised, with a list of suitable supervisors be prepared by the parties and to be submitted to Dr. Levy for consideration. 

6.During this hearing, the then solicitor acting for W had queried whether it was time to consider as to whether children needed separate representation, but no application was eventually made at that time.  Further at this hearing, with a view to working backwards, trial dates were secured and fixed in July and a PTR was fixed on 18 February 2009.  It had seemed at the time of hearing on 2 December 2008, both parents were willing to follow Dr Levy’s recommendations and to co-operate and to gradually work towards overcoming the  various difficulties. 

7.Unfortunately, thereafter, there were problems arising out of availability and/or change of supervisors, and access visits needed to be cancelled on a couple of occasions.  Tension arose again which eventually led to W changing her solicitors and thereafter W issuing various summonses, including a summons for access to be unsupervised, which I will deal with separately.  A further social welfare report has been prepared in connection with that issue.

8.On 6 March 2009, W issued a summons for the Official Solicitor to be appointed to represent the children.  W only filed her affidavit in support on 17 March 2009.  

W’s Reasons for the children to be separately represented

9.The main reasons why W asked that the children to be separately represented as submitted by her solicitor Ms Hung include :

(i)  H is not independent nor impartial;

(ii)  The Official Solicitor can provide certainty and consistency to the children in a way that they can turn to the Official Solicitors for legal assistance;

(iii)  Children may not be able to freely express their views to the Social Welfare Officer or the professionals involved.

10.In particular, Ms Hung has submitted (in her Counsel’s Written Submissions) :

(i)  Given the uncompromising attitude of H, W believes that the appointment of the Official Solicitor is the best arrangement to look at the interests of the children, as the present situation is not in the genuine interest of the children;

(ii)  The children feel the family tension and no one has told them what is in front of them;

(iii)  It is in the imminent interest of the children to rebuild trust and relationship with their mother;

(iv)  W is concerned over the emotional status of the children;

(v)  The children have no fear of seeing their mother, father is always aways, and children seeing mother in very ‘unnatural situation’;

(vi)  The children physically, emotionally and psychologically caught in the tense relationship between the father and the mother;

(vii)  The children need help from those who are unbiased in the proceedings.

11.Later during the hearing, after this Court drew the parties’ attention to the Practice Direction issued by Dame Elizabeth Butler-Sloss, then President of the Family Division of the High Court of England, Ms Hung has submitted that paragraph 2 sub-paragraphs 3.2, 3.3, 3.4 and 3.8 of the Practice Direction apply in the present case.  At a further later stage during the hearing, Ms Hung then referred this Court to Art 12 of the United Nations Convention on the Rights of the Child and Article 35 of the Basic Law, submitting that it is the right of the children to be represented.  Ms Hung also referred this Court to paragraphs 12.29, 12.46 and 12.47 of the 2005 Law Reform Commission’s Report on “Child custody and access” (“LRCR”)

H’s Reasons for opposing

12.H’s reasons for opposing the appointment of the Official Solicitor include:

(i)  The Official Solicitor or a lawyer cannot help the children’s ‘emotional’ well being, which is to be taken care of by professional psychologists;

(ii)  Whether the children are still scared of W is a matter again for the psychologists;

(iii)  If children were given the chance to understand the detailed background, as well as ongoing circumstances of the proceedings, this may cause more stress and confusion to the children;

(iv)  It is not in the children’s interest for the children to have access to the court documents of this case.

Legal Principles

13.At present, although there are provisions under the Matrimonial Causes Rules in relation to the power of the court to order that a child to be separately represented in any matrimonial proceedings or in relation to financial and property matters (Rule 72, Rule 108), there do not appear to be any such similar provisions under the Guardianship of Minors Ordinance (‘GMO”).  In the High Court, under Wardship Proceedings, there is such inherent power, but Wardship Proceedings are exclusively the jurisdiction of the High Court.

14.Both H’s Counsel, Ms Irving, and Ms Hung, seemed content for this Court to proceed under s.4(2) of the GMO, and there has been no challenge to this Court’s jurisdiction to make the order sought. 

15.Under s.3 of the GMO, the children’s welfare is of paramount consideration and this Court has to have regard to their wishes, if they are of an age and maturity for such wishes to be taken into account, and any relevant information contained in social investigation reports.

16.As mentioned above, this Court has drawn the parties to the President’s Direction on Representation of Children in Family Proceedings (“President’s Direction”) issued by Dame Elizabeth Bulter-Sloss.  I find such direction helpful in providing some guidance as to the circumstances which may justify an order that the children be separately represented, even though in England, there is the Children’s Act 1989, which we do not have in Hong Kong, and there are different rules relating to children’s proceedings there, which are not available here. 

17.I will set out the Practice Direction (hereinafter referred to as the “PD”), which is as follows:

“President’s Direction on Representation of Children in Family Proceedings

The Principal Registry of the Family Division

Representation of Children in family proceedings

President’s Direction

Pursuant to rule 9.5 of the Family Proceedings Rules

The proper conduct and disposal of proceedings concerning a child which are not specified proceedings within the meaning of section 41 of the Children Act 1989 may require the child to be made a party.  Rule 9.5 of the Family Proceedings Rules 1991 ("FPR)" provides for the appointment of a guardian ad litem ("a guardian") for a child party unless the child is of sufficient understanding and can participate as a party in the proceedings without a guardian, as permitted by FPR rule 9.2A. 

1.  Making the child a party to the proceedings is a step that will be taken only in cases which involve an issue of significant difficulty and consequently will occur in only a minority of cases.  Before taking the decision to make the child a party, consideration should be given to whether an alternative route might be preferable, such as asking an officer of the Children and Family Court Advisory and Support Service ("CAFCASS)" to carry out further work or by making a referral to social services or possibly, by obtaining expert evidence.

2.  The decision to make the child a party will always be exclusively that of the judge, made in the light of the facts and circumstances of the particular case.  The following are offered, solely by way of guidance, as circumstances which may justify the making of an order:-

3.1  Where a CAFCASS officer has notified the court that in his opinion the child should be made

a party (see FPR rule 4.11B(6)). 

3.2  Where the child has a standpoint or interests which are inconsistent with or incapable of being represented by any of the adult parties.

3.3  Where there is an intractable dispute over residence or contact, ncluding where all contact has ceased, or where there is irrational but implacable hostility to contact or where the child may be suffering harm associated with the contact dispute.

3.4  Where the views and wishes of the child cannot be adequately met by a report to the court.

3.5  Where an older child is opposing a proposed course of action.

3.6  Where there are complex medical or mental health issues to be determined or there are other unusually complex issues that necessitate separate representation of the child.

3.7  Where there are international complications outside child abduction, in particular where it may be necessary for there to be discussions with overseas authorities or a foreign court.

3.8  Where there are serious allegations of physical, sexual or other abuse in relation to the child or there are allegations of domestic violence not capable of being resolved with the help of a CAFCASS officer.

3.9  Where the proceedings concern more than one child and the welfare of the children is in conflict or one child is in a particularly disadvantaged position.

3.10  Where there is a contested issue about blood testing.

3.  It must be recognised that separate representation of the child may result in a delay in the resolution of the proceedings.  When deciding whether to direct that a child be made a party, the court will take into account the risk of delay or other facts adverse to the welfare of the child.  The court's primary consideration will be the best interests of the child.

4.  When a child is made a party and a guardian is to be appointed:

5.1  Consideration should first be given to appointing an officer of CAFCASS as guardian.  Before appointing an officer, the court will cause preliminary enquiries to be made of CAFCASS.  For the procedure, reference should be made to the practice note issued by CAFCASS, contemporaneously with this direction.

5.2  If CAFCASS is unable to provide a guardian without delay, or if for some other reason the appointment of a CAFCASS officer is not appropriate, FPR rule 9.5(1) makes further provision for the appointment of a guardian.

5.  In cases proceeding in a county court, the court may, at the same time as deciding whether to join a child as a party, consider whether the nature of the case or the complexity or importance of the issues require transfer of the case to the High Court.

6.  Issued with the concurrence and approval of the Lord Chancellor. 

Elizabeth Butler-Sloss
President  “

18.The full name of “CAFCASS” referred to in the PD is the “Children and Family Court Advisory and Support Services “and as pointed out by Ms Hung it was established in June 2001 in England as a unified court support service for families involved in relationship breakdown and family proceedings.  It incorporated the services previously provided by the Family Court Welfare Service, the Guardian ad Litem Services and the Children’s Division of the Official Solicitor.  It thus offers much wider services than our Social Welfare Department.

19.Ms Hung has referred this Court to the Australian list of criteria for the appointment of a separate representative as set out in LRCR.  I am not sure whether there has been any updated list since it is my belief that there have been some developments in respect of the law relating to children in Australia.  Further, the Consultation Paper, which led to the issue of the LRCR was in 1998 (see foot note 39 on page 282 of the LCRC), and this was before the above PD was introduced in England.  There was a brief reference to the PD in footnote 37 on page 281 but it appears that there was no further discussion/consultation on the proposed list of criteria after the introduction of the PD.  Anyway, the following is the list set out in paragraph 12.48 the LRCR and recommended at that time in  Recommendation 50 of the LRCR:

“1.  where there is an apparently intractable conflict between the parents,

2.  where the child is apparently alienated from one or both parents,

3.  where there are real issues of cultural or religious difference affecting the child,

4.  where the conduct, either of one or both parents or some other person having significant contact with the child, is alleged to be anti-social to the extent that it seriously impinges on the child's welfare,

5.  where there are issues of significant medical, psychological, psychiatric illness or personality disorder in relation to either party or a child or other person having significant contact with the child,

6.  in any case where it appears neither parent seems a suitable custodian,

7.  where a child of mature years is expressing strong views which, if given effect to, would change a long standing custodial arrangement or result in a complete denial of access by a parent,

8.  where a parent proposes permanently removing a child from the jurisdiction or to such a place within the jurisdiction as to greatly restrict or, for all practical purposes, exclude the other party from the possibilities of access,

9.  where it is proposed to separate siblings,

10.  where none of the parties are legally represented,

11.  where the court's welfare jurisdiction is being exercised, in particular relating to the medical treatment of children, and the child's best interests are not adequately represented by one of the parties, and

12.  in cases involving allegations of child abuse, whether physical, sexual or psychological.”

20.With the above lists/criteria in mind, I now turn to the circumstances of the present case.

Discussions and Conclusions 

21.It is clear from Art 12 of the United Nations Convention on the Rights of the Child that the views of a child who is capable of forming his or her views should have the right to express those views freely in all matters affecting the child, and such views be given due weight in accordance with the age and maturity of the child, and that for this purpose, the child shall be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body.  Further under Art 38 of the Basic Law, a Hong Kong resident shall have the right to access to the courts, choice of lawyers etc.  H’s Counsel, Ms Irving, is not disputing the contents of these articles.

22.As stated in paragraph 1 of the PD, making the child a party is a step that will be taken only in cases which involve an issue of significant difficulty and consequently will occur in only a minority of cases, and that before taking the decision to make the child a party, consideration should be given to whether an alternative route might be preferable, such as asking an officer of the CAFCASS to carry out further work or by making a referral to social services or possibly, by obtaining expert evidence.  Ms Irving has submitted in this case there are alternative routes which are preferable, such as referring to the social welfare officer and psychologists and obtaining further expert evidence.  

23.Ms Hung has submitted that there have been many cases in Hong Kong where the Official Solicitor has been appointed to represent the children.  I have to confess that I am not aware of that many.  So far in my Court, there has been only one in the past 5 or 6 years.  I am, however, aware that there have been calls for voices of children to be heard.  “The voice of the child in proceedings concerning his or her future grew steadily louder as the 20^th century drew to a close and the 21^st century dawned.”  (per David Williams: Voices in the Wilderness: Hearing Children in Financial Applications, February [2008] Fam Law 135).  I am also aware that Thorpe LJ has in the case of Mabon v Mabon [2005] 2 FLR 1011 referred to ss.6 and 7 of Care of Children Act 2004 in New Zealand where it is set out that unless it is satisfied the appointment would serve no useful purpose, the court must make an appointment for a lawyer to act for a child if the proceedings involve the role of providing day-to-day care for the child, or contact with the child; and appear likely to proceed to a hearing.  (para [30])

24.In the present case, there are already a number of experts involved in the present proceedings, and there is also a social worker and a number of supervisors involved, totalling at least 6 or 7 at present, and there may need to be more supervisors and experts involved between now and the trial.  Further, there have now been a total of 26 reports in the Report Bundle.  Now that W has objected to Dr Levy, who was originally jointly appointed by her and H to help the family, with the withdrawal of Dr. Levy, it may be necessary to appoint a new independent expert.  The twins’ therapist, Ms Alicia Pon, has also recently strongly recommended the appointment, as soon as possible, of a “case manager”, a psychologist like Dr. Levy, who must have at least post graduate training in psychology, social work, family mediation or mental health to co-ordinate the supervisors as well as all the professionals like herself.  

25.Anyway, since the proceedings started, the children have already been subjected to contact with a number of “strangers”, some of them they may have by now grown accustomed to.  I do appreciate that these experts, supervisors and social worker all play a different role.  Their role is clearly different from that of a guardian ad litem (Re S (A minor)(Care Proceedings: Reports) [1992] 2 FCR 554, at 558 to 559), but at this late stage, introducing yet more strangers playing, in particular, a different role could, in my view, cause confusion and could be unsettling to the children, particularly to the youngest daughter M, who is only about 7 years 9 months old.  Direct participation in the proceedings may pose an obvious risk of harm for them, and equally, there may of course be risk of emotional harm that might arise from denying a child knowledge of, and participation in, the continuing proceedings.  There is, however, no evidence of either put before this Court. 

26.There has been no recommendation in the 3 social welfare reports that the children should be separately represented.  It appears from one of the reports of Ms Alicia Pon, the twins’ therapist,that there had been occasions when their mother showed them materials from the psychologist, lawyers or court (Reports Bundle: 73).  There was, however, no indication that they had expressed a wish to be separately represented or did Ms Pon make any recommendation in this regard.  The children’s views are reflected in the various reports, and there is no evidence that the children’s views and wishes cannot be adequately reflected nor ascertained by the social welfare officer or the other experts or the supervisors concerned.  When Dr Levy was involved, there was also no recommendation from her that the children should be separately represented.  Ms Minna Chau is M’s therapist, and there is also no recommendation from her that M should be separately represented. 

27.Ms Hung submits that there is intractable conflict or dispute between the parents.  I agree with Ms Irving that in the present case, there is no more intractable conflict in this case than most of the other contested custody or access cases.  This is not a case where all contact has ceased.  In my view, there is no irrational or implacable hostility to contact.  H never opposed contact or recently when additional contact was sought by W to M, he did not oppose such additional contact, and the only issue is the day of such additional contact and the amount of additional access at this stage.  W has had contact, albeit supervised at this stage.  In fact, both the supervision and the access hours and access terms were agreed by her at the time.  Both parties had consented to a course of action since commencement of these proceedings in July last year until February 2009.  It was W who decided in February to seek a change from the previously agreed course.  H has been following the recommendations of Dr. Levy, who was jointly appointed by the parties to help the family.  Apart from some holiday plans of H’s which have been opposed by W, the only major outstanding issue is whether access to M should continue to be supervised, since W has conceded that the access to the older twins should continue to be supervised. 

28.Ms Hung has submitted that H has very strong negative issues against W, and this may taint his judgment, and further no one is representing the children, in particular their right to see their mother, and H is taking every possible step to diminish that right.  H of course denies this, as he says he is agreeing to additional access.  Neither H nor W appears to be challenging any of the children’s views as expressed in the reports.  In fact, W urges this Court to accept M’s views of wanting unsupervised and staying access and has relied on M’s views to support her application for unsupervised and staying access.  What weight should be attached to the children’s views, in view of their respective ages, and whether their views have been influenced or tainted is a matter ultimately for the Court to decide.  Anyway, in my view, the children do not have a standpoint or interests which are inconsistent with or incapable of being represented by either H or W.  H and W and the social worker and the professionals have been putting across the children’s views, and this Court will take them into consideration before making any determination on any issue.  

29.Ms Hung says there are serious allegations of physical or other abuse to the children.  W has disputed the allegations of violence against her.  From the 1^st social welfare report, there were some very serious allegations made against her by the children.  Ms Hung has emphasized that H had allegedly said to M if she stayed overnight with her mother, her mother might kill her, and therefore there has also been emotional abuse on the part of H.  There are indeed cross allegations of abuse, whether physical or emotional, which this Court will have to investigate at the main trial.  I am, however, of the view that such allegations are not incapable of being resolved with the help of a social welfare officer or psychologists or therapists.  What is clear to this Court is that M has serious behaviour problems, and from the recent letter from her school, it appears that M has been having these problems for 1½ years, i.e. before the proceedings have even started, and when she was living with her mother and under her mother’s care.  It was said in the letter from M’s school that “The challenging nature of M’s behaviour largely has to do with her attempting to control and manipulate others and includes M lying to get her way.”  M is only about 7-.  She has exhibited severe behaviour problems at school and also during access, particularly when such access was taking place outside home.  Although there appeared to be improvement when access started to take place at W’s home (which was the former matrimonial home), the recent access incident on 30 April 2009 has shown otherwise.  M clearly needs help.  She is currently attending counselling sessions with her therapist Ms Minna Chau.  M wants additional access with her mother, and H has offered Wednesdays, after her sessions with Ms Minna Chau, but W prefers other days.  Anyway, these are matters which this Court will need to decide.  In my view, what M needs is at this moment urgently is perhaps more help from therapists, not legal help. 

30.Although W’s application concerns all 3 children, Ms Hung’s submissions appeared to have concentrated on M.  In the case of Mabon v Mabon [2005] 2 FLR1011 the six children had already been joined as parties to the action to be represented by the appointed guardian, and three eldest children, aged 17, 15 and 13 were seeking to instruct a solicitor to represent them.  This was not allowed in the lower court and the 3 children appealed.  Thorpe LJ held that the judge was wrong and that in the case of articulate teenagers the courts must accept that the right to freedom of expression and participation outweighed the paternalistic judgment of welfare.  M is, however, not an articulate teenager. 

31.Ms Irving has drawn this Court’s attention to paragraph 29 of Mabon v Mabon, where Thorpe LJ has said that “In testing the sufficiency of a child’s understanding, I would not say that welfare has no place.  If direct participation would pose an obvious risk of harm to the child, arising out of the nature of the continuing proceedings and, if the child is incapable of comprehending that risk, then the judge is entitled to find that sufficient understanding has not been demonstrated.  But judges have to be equally alive to the risk of emotional harm that might arise from denying the child knowledge of and participation in the continuing proceedings.” 

32.Sir Thomas Bingham MR has said at 276 and 444H of Re S (A Minor) (Independent Representation) [1993] Fam 263 [1993] 2 FLR 437 that “….Different children have differing levels of understanding at the same age.  And understanding is not absolute.  It has to be assessed relatively to the issues in the proceedings.  Where any sound judgment on these issues calls for insight and imagination which only maturity and experience can bring, both the court and the solicitor will be slow to conclude that the child’s understanding is sufficient.”  Later at 279 and 448E, Sir Thomas Bingham MR has said that “The Judge has to do his best, on the evidence before him, to assess the understanding of the individual child in the contest of the proceedings in which he seeks to participate”.  

33.I am of the view M has not demonstrated the necessary understanding and maturity at this stage to be involved in the proceedings which may cause her further confusion.  To have the Official Solicitor to represent M at this stage will not serve any useful purpose.  The twins are on the other hand older and more mature, but they have not indicated any wish to be separately represented.  In fact, nor has M in this regard.  In any event, if it is deemed necessary, it can be arranged for me to see the twins at the time of the trial.

34.W has produced two reports which indicated that at the time of the reports she was not suffering from Borderline Personality Disorder, or any mood disorder or psychotic disorder.  There is no sufficient evidence before this Court to show that any of the children are suffering from any significant medical, psychological, psychiatric illness or personality disorder.  Thus, there appears to be no issues of significant medical, psychological, psychiatric illness or personality disorder regarding to either party or any of the children. 

35.Further, I agree with the submissions by H’s Counsel, Ms Irving, that W’s reasons or concerns for wanting the children to be separately represented should be addressed more appropriately by experts, such as psychologists or therapists or counsellors, and not by lawyers.  According to Ms Pon, the twins’ therapists, there is real urgency in appointing an expert or a “case manager” to replace Dr. Levy.  

36.The trial in this case has been set down for 8 days from 20 to 23, and 27 to 30 July 2009.  As mentioned earlier, the matter of having the Official Solicitor stepping in was first mentioned vaguely by W’s previous solicitor during the directions hearing on 2 December 2008.  Although W has been represented by experienced family lawyers throughout these proceedings, for some reasons, no application has been taken out until 3 months later, 6 March 2009.

37.Now we are in early May, and only about 2 months away from the trial, and this Court has already given detailed directions as to filing of further affidavits and preparations for the trial.  So far, there have been already 5 paginated bundles of court documents.  As pointed out by paragraph 3 of the PD, separate representation for the children may result in a delay in the proceedings.  As it is anticipated that the Official Solicitor may need to apply for legal aid for the children, and may have to instruct counsel on their behalf, even if the statutory stay due to application for legal aid is uplifted by this Court, there is still a real risk of serious delay in the present proceedings, and this is certainly not in the best interest or welfare of the children.  I would just point out if the dates in July are lost for any reason, due to the present state of this Court’s diary, further dates may only be available towards the end of this year. 

38.Having considered all the circumstances, I am of the view that it is not in the best interests of the children to be separately represented by the Official Solicitor at this stage.  I therefore dismiss the Respondent’s application, with costs reserved.

Ms Francis Irving instructed by m/s Haldanes for Applicant

Ms Barbara Hung of m/s Chaine Chow & Barbara Hung for Respondent