Cwt v. Ckk

HCMP 2501/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2501 OF 2009

(ON AN INTENDED APPEAL FROM FCMC NO. 14169 OF 2007)

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BETWEEN

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Before: Hon Tang VP and Yeung JA in Chambers

Date of Judgment: 29 January 2010

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JUDGMENT

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1.This application for leave to appeal concerns the care and control of N, a girl, born in June 2001.

2.N’s father (“F”) and mother (“M”) separated when she was 3 months old. N remained with M until March 2008. The divorce proceedings was issued on 10 November 2007.

3.By a consent order made on 31 January 2008, the parties were given joint custody of N with care and control to the father, the mother to have reasonable visiting access only but not staying access of not more than twice a week at such time to be mutually agreed between the parties.

4.N who was not yet 7 at the time moved to live with her father on about 1 March 2008. The father has a fiancée, T, and they plan to marry in the summer of 2010. According to the learned judge, T was introduced to N in June 2008, and after June/July 2008, the parties’ amicable relationship began to falter.

5.M issued her application seeking a variation of the consent order and N’s care and control.

6.F is about 44 years old and M 40. The learned judge described both as clever and educated. T is also an educated lady and supports F in retaining N’s care.

7.After a 4-day hearing, and in a 42-page judgment, the learned judge decided on 8 October 2009 to vary the consent order such that the mother would have the care and control of the child, and that the child would move back to the mother’s home on or before 1 November 2009. She also ordered that the father had reasonable access to the child as follows:

“(a)  Day access every Wednesday from 7pm to 10 pm;

(b)  Staying access on the child’s alternate short weekends (i.e when there is no school on alternate Saturdays) of each month from Fridays 7 pm to Sundays 11 am;

(c)  Consecutive staying access over half of the child’s school holidays including but not limited to Christmas, Chinese New Year, Easter and summer holidays, dates and time to be fixed between the parties.”

8.The learned judge refused leave to appeal on 30 November 2009. By summons dated 2 December 2009 F applied for leave to appeal and for a stay of execution of the learned judge’s order. By a consent order dated 4 December 2009, an interim stay of execution was granted, pending final determination of the father’s summons for leave to appeal and stay of execution dated 2 December 2009.

9.The application for leave went before Rogers VP who, on 23 December 2009, refused leave to appeal, with the following remarks:

“This was an exercise of discretion by the Judge.  The Judge clearly had all the factors well in mind and was not blinded by taking a wrong view of the facts.  Although there are clearly matters that can be argued, I do not consider that there are reasonable prospects in overcoming the decision reached by the Judge.  I therefore decline leave to appeal.”

10.By a letter dated 30 December 2009, the father’s solicitors, purportedly pursuant to O. 59 r. 14, gave notice that F wished to renew his application for leave to appeal and a stay of execution in open court. The application should have been and was eventually made under O. 59 r. 2C(1). Unfortunately, the written submissions on behalf of F was only available on 14 January 2010 and the written submissions on behalf of M were received on 22 January 2010. We had wished to deal with the application expeditiously. In matters concerning children, delay is particularly undesirable.

11.The main submission on behalf of the father is that the exercise of the discretion by the learned judge is wrong. It is said that her decision rests on the flimsy ground.

12.This is what the learned judge said when she refused leave to appeal:

“10.  In deciding which parent is able to provide better care for their 8 year daughter, I had to do a balancing exercise.  I have accepted that N has a very strong emotional bond between N and her mother (para 114).  I have further said that it is difficult to replace a natural mother’s role (paragraph 112). Ms Puk has agreed that N would undergo physical and emotional changes during puberty and N would need guidance and that a teenage girl would need a lot more female guidance like sex education and a mother’s role in this respect will be beneficial to N (paragraph 107).  I have accepted Ms Puk’s evidence in this regard. I have given my reasons in paragraphs 112 and 114 of the Judgment and concluded that in view of the very close relationship between N and her mother, the Mother would be in a better position to meet N’s emotional needs.”

13.With respect, we agree with the learned judge’s conclusion.

14.A criticism made of M was that she had agreed to care and custody to be entrusted to F and then she changed her mind. The learned judge had duly taken that into consideration. But as the learned judge in her well-balanced judgment rightly pointed out:

“19.  … the court shall regard the welfare of the minor as the first and paramount consideration and in having such regard shall give due consideration to (A) the wishes of the minor, if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and (B) any material information including any report of the Director of Social Welfare available to the court at the hearing.”  See Guardianship of Minors Ordinance, Cap. 13.

15.As the learned judge has carefully explained in paras. 82 to 88 of her judgment under the heading of “The ascertainable wishes and feelings of N”, N wished to live with her mother. Indeed, during her first meeting with a social worker on 27 November 2008 when she was asked to make three wishes, her first wish was to “live with her mother”, and when interviewed again on 3 August 2009, and asked to make three wishes again, the learned judge noted:

“83.  … her first wish was that she would be able to live with her mother again.  Secondly, she would want to raise a dog at home, and lastly, she hoped that her parents would not oppose to each other any more.”

16.The learned judge has borne in mind the “checklist” of factors recommended by the Law Reform Commission’s Report issued in March 2005, for considering the best interest of a child in child related applications.

17.From the judgment, it is clear that the learned judge rightly regarded both F and M as good parents; Indeed she quoted from the 2^nd Social Welfare Report:

“106.  … that both F and M impressed her to be child-focused and both have genuine concern to N’s development on the whole, not only on her academic achievements, but also they are receptive to learn effective ways in child discipline and parenting.”

18.The learned judge also accepted that T was genuine when she said she and N had become close and that they enjoyed each other’s company.

19.The learned judge then concluded:

“112.  However, notwithstanding T ’s efforts and good intentions, it is difficult to replace a natural mother’s role, particularly in a case where the mother and daughter relationship is a very close one and established over a period of over 6 years.

113.  Although N has bonded quickly with her father after she went to live with him, according to Ms Puk, N has clearly longed to have a reunion with her mother.

114.  I find that both parents are capable of caring for N and meeting N’s educational and physical needs, but as for N’s emotional needs, the reality is that there is a very strong emotional bond between N and her mother, and N is now only 8 year old. As said by Hon Rogers VP in the case of Aslam v Ali CACV 144 of 2003 that “the position of a mother in the life of young children cannot be underestimated” (para 17).  In that case, the children concerned were a girl of 8½, and two boys of 6 and 5 years old respectively.  Hon Rogers VP has further said that the girl in that case also needed a mother’s attention.  No doubt, the circumstances of each case may be different.  However, in view of the very close relationship between N and her mother, and further in view of N’s age, I am of the view that M would be in a better position to meet N’s emotional needs.”

20.The importance of a mother to a young child does not need explanation and has been repeatedly affirmed by the court.

21.We have no doubt whatsoever that the appeal has no reasonable prospect of success. It follows that the stay of execution granted by consent by Hartmann JA will cease to have effect.

22.The application of the respondent is dismissed. Unless we receive submissions to the contrary within 7 days hereof, we will make no order as to costs.

23.We also make an order under O. 59 r. 2A(8) that the respondent may not request this determination to be reconsidered at an oral hearing inter partes.