Mjp v. Jwp
Read the full judgment text of FCMC 9154/2008 on BabelCite. This Family Court judgment was delivered on 30 October 2009 before Her Honour Judge Sharon D. Melloy.
Matrimonial Causes – Relocation – Custody – Access – High conflict case – Children caught in dispute – Parties from England, married 1997, lived in HK 15 years, three children born in HK. Relationship breakdown 2002-2003, Father new family 2007. Mother took children to UK Easter 2009, returned June 2009. Mother seeks leave to permanently remove children to UK, Father opposes. Whether permission be given for children to leave Hong Kong to relocate to United Kingdom with Mother. Whether custody and care and control be determined. Whether children's time be allocated between parents. Permission granted with conditions. Joint custody with care and control to Mother. Defined access on short term basis. Leave granted. Joint custody to Mother. No costs.
Legal issues: Relocation · Custody · Access
Outcome: Leave to relocate granted; Joint custody with care and control to Mother; Access defined.
Cited by 6 cases · Cites 2 cases
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FCMC 9154 / 2008 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 9154 OF 2008 ---------------------------- BETWEEN
---------------------------- Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public) Dates of Hearing: 2-4 and 14-16 September 2009 Date of written closing submissions: 28 and 30 September 2009 Date of the Respondent's Reply to the Petitioner's Closing submissions: 6 October 2009 Date of oral closing submissions: 8 October 2009 Date of Judgment: 30 October 2009 ----------------------- J U D G M E N T ----------------------- Introduction 1.This is an application by a Respondent Mother for leave to permanently remove the three children of the family out of the jurisdiction of Hong Kong in order to relocate with them to the United Kingdom. The children are aged 9 3/4, 8 and nearly 6 years old respectively. The Father opposes the Mother’s application. He wishes the children to remain in Hong Kong and for their care to be shared between the parties on a more or less equal basis. 2.This is a high conflict case, where three young children have been caught in the middle of an escalating dispute between their parents. The dispute largely centres on them. There are no assets to speak of and money is tight. 3.The parents are both intelligent and articulate people, who started out with the very best of intentions. They intended to do things “their way”. Understandably they did not wish to involve either lawyers or the courts. For whatever reason this has not been possible and the parties have been in and out of court on a frequent basis since October of last year, seemingly finding it impossible to resolve issues largely concerned with access. This is despite being ably assisted at times by a very experienced team of professionals, including a highly regarded lawyer mediator, various psychologists and specialist family lawyers. 4.The father has consistently sought more access and in particular staying access and the mother has more often than not resisted, generally because she did not believe that what was being proposed was in the children’s best interests. 5.The difficulties were compounded when the Mother went to the United Kingdom over Easter for a holiday and did not return. Consequently the Father issued Hague proceedings in London. The Mother and the children eventually returned to Hong Kong in compliance with Court orders from both jurisdictions. 6.Other factors include the fact that the Father has quickly formed a second family with his cohabitee, with one young child and a second baby being born recently. In addition his original company ran into financial difficulties and has gone into liquidation causing further emotional and financial strain. 7.The children, as I have said, have been caught in the middle of all of this and have on occasions reacted in very extreme ways, to what on the face of it seem to be fairly uncontroversial interim access orders. It has not always been clear why this was so. 8.Against this backdrop the court is now charged with determining the Mother’s application for leave to permanently remove the three children of the family out of Hong Kong in order to relocate with them to the United Kingdom. She also seeks sole custody and care and control, with defined access to the Father. The Father seeks joint custody and joint care and control. What then are the main issues? 9.Should permission be given for the children to leave Hong Kong in order to relocate to the United Kingdom with their Mother? How should the issue of custody and care and control be determined given my findings in relation to 1 above? How should the children’s time be allocated between their parents? Background to the marriage 10.The parties are both from England. They met in 1984 as students at Manchester Polytechnic. The Father is now 45 and the Mother a few months younger. In September 1985 they started to cohabit and in 1988 they purchased a home together. In 1994 the Father relocated to Hong Kong, with the Mother following shortly thereafter. By all accounts it was a mutual decision, with the expectation initially that they would live in Hong Kong for two or three years. They sold their home in England. Both found jobs in Hong Kong. In September 1997 they “eloped” and married in Venezuela. It is acknowledged by both parties that they each wanted to have children and that was the main reason for the marriage. The parties have therefore lived in Hong Kong for over 15 years. All three children were born in Hong Kong. 11.The eldest child G, a boy, was born in December 1999, F, a girl, followed in August 2001 and last but not least S, also a girl, was born in November 2003. The children are all British by descent and hold British passports. 12.Both parties acknowledged that significant cracks appeared in their relationship after they had the children, although understandably both saw this from their own perspective. The Mother complained that the Father wished to continue to live a bachelor lifestyle. The Father said in his first affidavit that “our relationship broke down in 2002 – 2003 when it became increasingly difficult for me to get along with J”. 13.In any event the Father acknowledged whilst giving evidence, that by the end of 2004 he had begun an affair with his work colleague Ms M, with whom he now lives. They have two small children together. On or about the 1 March 2007 he moved out of the matrimonial home. Ms M became pregnant shortly thereafter. The first child was born in March 2008. 14.Initially, as I have said, the parties intended to do things “their way” and it was agreed, although according to the Father somewhat reluctantly, that access was to take place as follows:
15.As noted above, relations deteriorated significantly when the parties had an argument over plans for the children for the Easter holiday period in 2007. By all accounts the argument became physical and the Father sustained minor injuries. The children witnessed some of the aftermath. After that relations became even more strained. The Father was no longer welcome at the former matrimonial home. The Father generally saw the children on Sundays during “family days” often in the presence of the Mother. Access continued to be very problematic. Mediation was tried, but failed. The litigation 16.The Father issued divorce proceedings on the 4 August 2008. On the 29 August 2008 he issued a summons for joint custody and joint care and control. He also sought access to be increased on a gradual basis. In the Mother’s Form 4 she indicated that she sought sole custody of the children. 17.The consistent theme throughout is that the Father has wanted a clearly defined schedule for access, with regular staying access, ultimately leading to shared care. 18.The Mother’s position, which she has also consistently held, is that access has to be introduced gradually and at the children’s pace. She denies that she has obstructed access, but rather that she has simply sought to introduce access that was appropriate, gradual and child centric. 19.On the 18 November 2008 I gave an interim Ruling allowing the Father access on Tuesday’s and Thursday’s after school and on one day over the weekend. At that stage access was extremely difficult, with G in particular refusing at times to see his Father. 20.On the same date the parties’ decree nisi was pronounced. On the 8 December the Mother started to act for herself. A further order was made on the 11 December 2008. Access was to continue along the same lines as before. 21.It was also agreed inter alia that there should be a jointly appointed experts report prepared to assist the court at the adjourned hearing, which was initially due to take place in February. 22.On the 13 February Dr B filed the jointly requested psychologist’s report. She made the following recommendations:
23.Partly on the basis of that report the court made an order, by consent, gradually increasing access over time. There was also a therapeutic element and each party agreed to have therapy with Dr B for four hours per month and to contribute towards the cost of that therapy. The parties agreed to attend that therapy in good faith and to refrain from discussing the Father’s access with the children directly. In addition to twice weekly access, staying access was gradually introduced, starting with one overnight and leading to weekend staying access. Two week long periods of access were put in place for the school summer holidays. 24.The Mother went to the United Kingdom over the Easter period and failed to return as agreed. She eventually returned on or about the 19 June 2009. Consequently the terms of the order and the spirit of the recommendations made by Dr B were not complied with. 25.Access resumed on the children’s return but remained problematic. Dr B was again called upon to assist. A joint letter of instruction was written, but the Mother opposed the response from Dr B on the basis that it went outside the scope of the original joint letter of instruction. After hearing argument I allowed the letter to be produced. Dr B recommended as follows:
26.Dr B made certain specific recommendations. I subsequently gave a ruling, which reintroduced access, but not quite at the pace envisaged by Dr B. Weekend staying access was set in motion and the children also spent a week with their Father in August. In addition the Father was able to take additional time off over the summer and normal access on Tuesday’s and Thursday’s was increased so that he was able to spend all day with them. 27.This then is where the matter stood at the time of the trial. Access had as far as possible been normalized. The Mother was not reporting the same level as anxiety from the children as before. Discussion 28.I must now turn to consider the issues, the law and the parties evidence as set out in their affidavits and as given orally by them during the hearing. I also heard evidence from two social welfare officers who each filed a report, the first from Mr L filed in December 2008 and the second from Ms C dated the 26 August 2009. I have also heard evidence from the father’s cohabitee, Ms M and from Dr B, who appeared as the father’s witness. The parties’ former domestic helper, R, also filed an affidavit, but was not called to give oral evidence. The mother called her GP – Dr H and I also gave leave for Ms G to give limited oral evidence on behalf of the wife, mainly in relation to possible forms of counselling that might assist the parties going forward. The Children’s Behaviour 29.To put this case into its proper context I think it is important to briefly indicate how the children were behaving during the period prior to and following these initial orders. When the matter first came before me there were clear difficulties. G in particular was refusing to see his Father. He was 8 years old at the time. 30.In the Mother’s second affirmation she exhibits extracts of a diary in which she records what the children were saying and doing between August 2008 and January 2009. The diary makes for very difficult reading. The children are clearly distressed, G is particular seems very concerned about the court proceedings. There are big emotional scenes with G refusing to go to access. He seems very angry. The constant theme is that “Daddy doesn’t love us” and that he “hates Daddy”. G also threatens to kill himself and others; he says the Father is mean and bullies him and that he lies. On occasions G and F refused to get dressed on access days. Handovers during access were extremely emotional. On one occasion G and F hid on the school bus when their Father went to school to pick them up. During her evidence the Mother said that she did not know if any of this was actually true or what was really going on, but that this is what the children were reporting. 31.The reasons for this behaviour have been interpreted differently by each of the parties. 32.The Father maintains that the Mother is alienating the children from him. He says in effect that it is her fault that the children behaved as they did at that time and as they have continued to do at various stages during these proceedings. He says inter alia that she did not promote his role as a parent, that she undermined him and allowed the children to make decisions about the access arrangements. During his oral evidence the Father said that the children were clearly “messed up”. 33.The Mother for her part took the view that the children were acting out because access was progressing too quickly. This is why she consistently tried to slow access down. 34.Ms G for the Mother said that it should not be discounted that this was the children’s own reality. 35.Dr H, the Mother’s GP recounted an incident in which G was extremely distressed. To a large extent this backs up the Mother’s own observations as set out in the diary extracts. 36.In Dr B’s report she offers some insight into this behaviour, after having seen both of the parties and the children. She assessed all three children using standardized testing.
37.At the end of the trial, Mr Poll for the Mother ventures to suggest that
38.As is often the case, it seems to me that the real reasons for the children’s extreme behaviour may never be truly known. In any event it now seems to be the case that the children are beginning to enjoy their time with their Father and that it is on a more stable footing than before. The Law 39.Both parties have referred me to the same principles on relocation. Reference may also be made to M v B, FCMC 6078/2008, presently unreported. Although English authorities are no longer binding on us, they are clearly persuasive and have consistently been relied upon by our own courts when determining relocation cases. In M v B, my brother Judge referred to the way in which the case law has developed in this area, beginning with a reference to the 1970’s case Poel v Poel [1970] 1 WLR and to a number of cases that have followed since. 40.However it is the more recent cases that are of particular interest, especially those where guidelines have been developed in order to assist both practitioners and the courts. In Payne v Payne [2001] EWCA Civ 166, the Court of Appeal set out the following guidelines. My fellow Judge has relied on these in M v B and I did likewise in M v M FCMC 11230/08 also presently unreported and pending cross appeals. Both parties have referred me to the same guidelines when in Payne v Payne The Right Hon Lord Justice Thorpe said as follows:
41.In this instance of course residence, or care and control, is very much a live issue. 42.I referred in M v M FCMC 11230/08 to a series of cases subsequently decided by the Court of Appeal in England and Wales, from which it can be seen that each case is decided on its own facts, in accordance with the guidelines set out above. It should also be noted that there is no presumption in favour of the parent wishing to relocate. However it is also accepted that, as stated by the Mother in her closing submission in the case of F v H (Children: relocation) [2008] 2FLR 1667 that
43.I am also mindful that the welfare of the child is always the court’s paramount consideration and that as stated in Payne
Should permission be given for the children to leave Hong Kong in order to relocate to the United Kingdom with their mother? Is the mother’s case genuine in the sense that it is not motivated by some selfish desire to exclude the father from the children’s life? 44.It is the Father’s case that the Mother’s desire to return to the United Kingdom is motivated by a desire to exclude him from the children’s lives and ultimately to control and minimize any access that he might have with them. The Father points to the history of these proceedings, including the Mother’s seeming reluctance to allow any form of access apart from the “family days” and the ongoing difficulties once access was court ordered. He also points to the Mother’s return to the United Kingdom at Easter when she was aware that she needed to seek the approval of the court in order to leave Hong Kong permanently and when a very structured approach to increased access over time had been put in place. The Father says that what the Mother says and what she does are two very different things. It is the Father’s case that although the Mother says that she wants the children to have a meaningful relationship with him that she does very little to actively promotes it. The Mother disputes this. The Father says that in part this is because she has not yet come to terms with the end of their marriage. In his 4th affirmation he puts it thus:
45.The Mother for her part says that her application is genuine. She says that there is nothing left for her in Hong Kong and that she wants to start a new life, with the support of family and friends in the United Kingdom. 46.I accept that the Mother’s application is genuine in the sense that she now “genuinely” wishes to relocate and to start a new life afresh in the United Kingdom. Although the Mother says that she had always intended to return to the United Kingdom, I accept that this was probably nothing more than a general desire. Certainly the parties had done nothing to actively put this plan into action and it is interesting to note that there was no mention of this at all in any of the documents before the court, until very late in the day; it also followed the Hague proceedings. It is also true, as Ms Rattigan points out, that the Mother seemed quite surprised by the notion of moving to the United Kingdom, when this was brought up by myself at one of the earlier court hearings. 47.I accept that Dr H suggested that she look into returning to the United Kingdom as a possibility. I also accept that she most probably had what might loosely be described as a nervous breakdown on her return to the United Kingdom, although the extent of her illness is not known as little evidence has been filed in that respect. However she described panic attacks, loss of hair and toe nails, bleeding gums etc. I accept that she took advice from family and friends, all of whom encouraged her to relocate to the United Kingdom. She says that English lawyers poorly advised her. That may be the case. It is though a matter of some concern that while the Mother enrolled the children in new schools, found somewhere to live, arranged for her things to be packed up and sent to the United Kingdom and apparently arranged for the family dog to be taken care of, no attempt was made to include the Father in any of these decisions or to seek his approval, nor did she make any formal proposals for access. There is a sense that in finding a solution, she was running away from what, for her, had become an unpalatable and untenable situation. Certainly at that time there is no sense that she wished to include the Father in the children’s lives in any meaningful way. 48.Going forward she says that she will encourage access and that any order obtained here can be mirrored in an order from England. 49.The Father of course is very concerned that if the Mother leaves that access will become difficult if not impossible and that he will be faced with the prospect of continuing and expensive international litigation. Is the mother’s plan realistic, i.e. founded on practical proposals both well researched and investigated? 50.The Mother has filed a detailed affidavit in which she sets out her practical proposals for life in the United Kingdom. The Father complains that they were hastily put together and that the Mother has thrust the children into this new life with little thought for the consequences. Accommodation 51.The Mother found a property that was available for rent in a small village near to her Father. It is by all accounts a nice property with a large garden. It is also affordable. She and the children moved into this property, with the consent of the High Court Judge in England, prior to returning to Hong Kong. I accept that this is an entirely appropriate property in which she and the children could live, in the event that they relocate to the UK. Schools 52.The Mother enrolled the children into the local village school – C Primary. The reports indicated that the children settled down well. Given that it is a small school, ages are banded together. This is of some concern to the Father, who sees a Clear Water Bay school a preferable option for the children. Clearly both are good schools and each would serve the children well. Finances 53.The parties’ finances have remained a constant source of concern throughout these proceedings. It is the Mother’s case that whilst the parties were together that they enjoyed a comfortable but not overly lavish ex-patriate life style. They had a joint income in excess of HK$100,000 per month on which to live, made up of her salary of HK$24,000, the Father’s salary and his commissions, which varied from month to month. They lived in affordable rented accommodation (Marina Cove and then Nam Sham village in Sai Kung), the children were being educated in the ESF system and they enjoyed a number of after school activities. After the Father left the matrimonial home finances became tight. There was a maintenance pending suit hearing. Notwithstanding a court order, the Mother complained of receiving maintenance late or not at all and of having to borrow from friends. Debts mounted. 54.The Father says that even at the time of the breakdown of their marriage that they were living beyond their means and that they had already accumulated significant debt. On closer examination much of the debt seems to relate to the Father’s tax liability. 55.It is clear however that the husband now has significant debts due in part to these proceedings. In addition his company went into liquidation causing further financial difficulty. The Mother also has significant personal debt. 56.The Father makes the following proposal for financial support:
57.In essence therefore the Father is proposing a significant reduction in the standard of living previously enjoyed by the children in Hong Kong. It is premised on the Mother earning at least c HK$21,000 and possibly as much as HK$50,000 per month, living in a 700 square foot apartment with a roof (as opposed to 1800 square foot duplex previously), relying on the public health system and having no car. There is no reference to domestic help. 58.The Father says this is a perfectly suitable financial proposal and his Counsel added in her closing that
59.Whilst that may be correct, the reality is that the Father’s proposal would lead to a radical reduction in the Mother’s standard of living and one that is premised on her eventually working full time, which is not her preferred option. 60.In contrast the Mother estimates her current expenses in the United Kingdom at GBP4,577 – or c HK$58,000 per month. I accept that this does not include the cost of other expenses such as flights etc. It does not include the cost of child care – although it is true that the Mother would be able to rely on her family for child-care support. It goes without saying that she would be entitled to free schooling and free medical care. 61.The father says in his closing submission that this aspect of the Mother’s case holds very little weight. I do not agree. All in all, from a financial perspective it seems to me that the Mother’s plan has a lot to recommend it. I am also conscious of the fact that the Father is in a start up situation. His financial situation is not guaranteed. He hopes that the new company will do well. This is by no means certain. 62.It is also true, as pointed out by Mr Poll that some Government support is likely to be available to the Mother in the UK in the event that there were further financial difficulties. Future job opportunities 63.The Father says that there are job opportunities for the Mother in Hong Kong. 64.The fact is however, that the Mother lost her job whilst in the United Kingdom. She was working part time as a textile designer with SHE Limited, earning HK$24,000 per month. There is some dispute over the redundancy, which the Father claims was deliberately orchestrated by the Mother. The Mother denies this. I tend to accept what the Mother says on this point. In any event given the parties parlous financial state it is clear that whether the Mother is in England or Hong Kong, she will need to work in some capacity longer term. She says that it will be easier for her to find part time work in Leicestershire, England, where there is still a demand for her skills in textile design. She says that it would be very difficult to replicate her job with SHE Limited, given the fact that part time work is still relatively unusual in her area of expertise in Hong Kong. I accept what she says in that respect. She has also looked into upgrading her skills – which would be possible in England but not in Hong Kong, where such courses are taught in Cantonese. She also talked about possibly studying for a teaching qualification so that she would be able to teach design in schools or in a tertiary institution. Both options seem eminently sensible. I accept that the Mother has a more realistic chance of obtaining work and also of upgrading her skills and possibly re-qualifying in England than in Hong Kong. Access proposals 65.The Mother makes the following proposals for access if she is allowed to relocate with the children. This is on a two yearly cycle. She proposes that the children’s school holidays shall be split as follows:
66.Alternatively she suggests that the Father have access to the children every Easter instead of alternating Easter with the Spring and Summer half terms. 67.Initially she would prefer access to be in the United Kingdom and she has some concerns about S spending extended periods away from her, given that she is still very young. 68.She also says that she is willing to facilitate access over the telephone and by skype and e-mail. 69.In evidence the father said that realistically if the children were allowed to relocate he would need to work within the longer school holidays and that he would prefer the children to return to Hong Kong for access visits. He checked with various airlines and was able to confirm that they would be able to travel as unaccompanied minors. 70.Although I accept that the Mother has some concerns about access taking place in Hong Kong, it seems to me, given the circumstances, that in the event that the Mother does relocate that access over the longer holidays will need to take place in Hong Kong. Is the Father’s opposition motivated by genuine concern for the future of the children’s welfare or is it driven by some ulterior motive? 71.There is no doubt that the Father’s application is also genuine in the sense that he “genuinely” believes that if the Mother is allowed to relocate that that will effectively signal the end of his relationship with the children. He believes, rightly or wrongly, that the Mother will not allow him to have proper and meaningful access to them. He anticipates ongoing litigation in the United Kingdom. He believes (and he must be correct in this) that the children have a right to have a relationship with both him and their half siblings. He queries the practical reality of trying to exercise his right to access in the United Kingdom, where he does not have a home and given that his new partner is from the United States. He points out that telephone access was very difficult whilst the children were in the United Kingdom. 72.Although this does not appear to be a case where the Father is trying to prevent the Mother from leaving in an attempt to control her post divorce, the net effect is much the same. Mr Poll puts it thus in his closing:
73.I tend to agree. What would be the extent of the detriment to him and his future relationship with the children, were the application granted? 74.Much of the case was taken up with this issue – i.e. to what extent is the Mother to be trusted given her past actions? Is she deliberately, but perhaps unconsciously poisoning the children against their Father – alienating them if you will or is she simply a Mother who has been overwhelmed by the enormity of the separation and is trying as best she can to do what she considers to be the best thing for the children? Where her actions calculated to minimize the Father’s place in the children’s lives? Is her relationship with the children one of control? Is it a toxic relationship as alleged? And are the children really in an enmeshed relationship with her? 75.These are serious allegations and ones that were largely unexpected, coming as they did right before the commencement of the trial. They arose out of the evidence given by Dr B. 76.The Father says that the Mother’s actions speak for themselves. I have a great deal of sympathy with the husband’s position and I have to say that a lot of what the Mother said and did appears to be disingenuous. Her actions, although perhaps understandable, were regrettable. 77.However, I also do not believe that that necessarily means that the Mother is also guilty of some of the other allegations made against her. Dr B 78.Dr B’s ability to give evidence was controversial. Initially she was instructed as a joint expert. Mr Poll pointed out in his closing, that the initial report referred to above was “balanced and eminently sensible” and “went a great way to explaining the dichotomy in the behaviour of the children”. I agree. As set out above it was partly on this basis that the order of the 6 April 2009 was made. 79.Both parties expressed that they felt comfortable with Dr B and asked that she be appointed as their therapist. I had some reservations about this, as I did not wish to lose Dr B as the Court’s expert, especially given the assistance that she had given the court previously. I explained to the parties at that time, that in the event that agreement could not be reached that there would need to be a second joint expert and that there would be cost implications. Nevertheless the parties asked that she be appointed as their therapist. I concurred. 80.On the 24 June 2009 I gave an order, following the Mother’s return, which in part recorded the following agreement
81.I have now had the opportunity of listening to the transcript of the hearing on the 24 June, the 26 June and the 16 July. At the hearing on the 24 July the Father’s solicitor asked that both parties pay for the joint expert. I declined to make that order. Instead it was made clear that the Father would need, in the circumstances (i.e. the fact that the Mother was without funds) to pay. It was confirmed that there would be a joint expert and that the Father would undertake to pay. It was agreed, as set above, that Dr B’s advice on the identity of that joint expert would be sought given her assistance to the parties up until that point and the fact that she could no longer be instructed as she was, by that stage, the parties’ therapist. 82.The parties returned to Court on the 26th June 2009. There was discussion over whether or not the expert was to be a joint expert or the Father’s own expert, given that he was paying. It was again agreed that the expert would be a jointly appointed expert and that the Father would undertake to pay. The parties agreed on the identity of a second joint expert – but unfortunately she was not available in the given time frame. Given that, the parties agreed that they would send a joint letter of instruction to Dr B seeking her advice on access going forward – i.e. from the 16 July pending the judgment. The parties were to see Dr B the following afternoon. In the concluding remarks from solicitors I was told that it was agreed that the parties would consider alternative joint experts. 83.At the hearing on the 16 July the parties had still not appointed a second joint expert. A number of names were put forward. No joint letter had been written. I indicated that I would not entertain an application for an adjournment on the basis that the parties had not been able to obtain a second joint expert report in the available time frame. I also said, and I accept that this is probably where some of the confusion arose in relation to the appointment of an expert, that I didn’t think the appointment of an expert would be a make or break, in the context of this case. 84.I accept that on that basis the Mother may have come to the conclusion that a second joint expert was not really necessary. Nevertheless I had certainly been under the impression that a second joint expert was going to be appointed and that he or she would be available to give evidence at the trial. 85.In any event a second independent joint expert was not instructed or called. I did however allow the Father to call Dr B as his witness – but on the basis that her testimony was to be limited to matters pertaining to her first report, when she had infact been a jointly appointed expert in any event and to the letter with respect to ongoing access set out above. I also allowed questions to be put to her in relation to the Father’s own therapy and in relation to the children. I did not allow any questions to be asked in relation to the Mother’s own therapy (unless of course the Mother explicitly consented to this). 86.Notwithstanding these directions Dr B did make reference to the Mother’s mental health. This was regardless of the fact that she had only seen the Mother once following her return to Hong Kong and seemingly not for therapy or for the purposes of assessment. 87.She said inter alia that the children were in an “enmeshed relationship with their Mother”, that the relationship was “toxic”, and further that it needed to be determined whether or not the Mother had a “personality disorder” or whether she was simply suffering from an “adjustment disorder”. 88.It is clear from Dr B’s testimony that she and the Mother had a “falling out” on the Mother’s return. Dr B said that she was “direct” with the Mother as the Mother lacked “insight”. In particular Dr B seemed very concerned that the Mother had not returned from the UK, when Dr B had given her own assurances to the Father, presumably during therapy, that the Mother would infact return. 89.Mr Poll pointed out that Dr B has not produced anything to substantiate these claims of enmeshment etc. There was no examination; no test results. The only thing that Dr B did produce was a very limited number of notes, taken during her meetings with either the parties or the children. In themselves they are extremely sparse. Dr B seems to have come to these conclusions about the Mother’s mental health based on reading a limited number of the pleadings and on what the Father and possibly the parties’ former domestic helper and the children may have told her. Interestingly R, the parties’ domestic helper was not called to give oral evidence. Her evidence has not been tested. Therefore I do not intend to attach much weight to R’s affidavit or to what she may or may not have told Dr B. 90.I accept that it is not clear if Dr B was aware of the other serious issues that have permeated this case and in particular the financial strain that the parties have been under. There also does not appear to have been any consideration of the fact that the Mother may have been struggling to come to terms with the end of her marriage and with the Father’s new relationship and family. 91.Mr Poll ventures to suggest in his closing that
92.I agree. I should add that I found Dr B’s first report and subsequent letter extremely helpful. (This is so notwithstanding the fact that I was concerned, as I said at the time, that she did appear to go outside the ambit of the joint letter of instruction). As indicated I have some concerns in relation to the remainder of Dr B’s evidence. I do not accept that there is any tangible evidence to support Dr B’s findings in relation to enmeshment and toxicity. 93.Dr B supports the Father and recommends that there should be an order for joint custody and joint care and control on a 50:50 basis. In the alternative and on the premise that the relationship between the Mother and children remains “toxic”, she recommends sole custody to the Father and supervised access to the Mother. She does not recommend that the Mother be permitted to relocate with the children. She fears that a mirror order would not be effective and that the Father’s relationship with the children would be “completely severed”. 94.In the words of Mr Poll
I will refer to this again, when discussing the issue of custody. 95.All in all, for the reasons set out above, I do not intend to attach a great deal of weight to this part of Dr B’s evidence. I am more of the view that the Mother may have simply been overwhelmed by the enormity of the separation and the fact that the Father has very quickly formed a new family unit with his cohabitee. It seems to me that she has been trying as best she can to do what she considers to be the best thing for the children, bearing in mind the children’s own reactions. In other words she seems to have had difficulties, as have the children, in initially adjusting to the new situation. To what extent would any possible detriment be offset by extension of the children’s relationships with the maternal family and homeland? 96.The Mother says that the children would benefit from being in closer proximity with her family – in particular her Father and his second wife and her half siblings and their children. 97.The Father complains that the Mother’s relationship with some of her family is fractured at best and that she had not had any relationship at all with her own Mother for some considerable time. 98.Whilst this might be true, I have no doubt that the children will benefit from having a closer relationship with their Grandparents, on both sides and those members of the family with whom they already have a relationship and who, historically they would see on their visits back to the United Kingdom over the summer. What would be the impact on the mother of a refusal of her realistic proposal? 99.Although the Mother has filed no psychiatric or psychological evidence I accept that she would be devastated if her application was ultimately refused. This was confirmed by Dr H (see below) Other witnesses Dr H 100.As stated above, Dr H was called on behalf of the Mother. He is the Mother’s GP and had been treating her for stress. He confirmed that the Mother had been on anti depressants to help her “keep everything together in a very difficult situation”. He did not foresee that she would need anti depressants longer term. He also said that he formed the impression that the “children were not that happy in their day to day life”. He described one incident in particular when he saw G on his own. He describes a very distressed little boy. Although it is accepted that Dr H is not a psychologist or psychiatrist, it seems to me that for whatever reason this is just one more indication of how unhappy G in particular was at this point in time. Dr H advised the Mother to look into the possibility of returning to the UK as an option, just as he had advised other patients in similar circumstances in the past. In his words he suggested that she go on a reconnaissance mission. He described her as being of an “excellent previous personality” and that she was a “good mother”. He said that he thought it would be terrible for her if the situation were to go against her. He also confirmed that the Mother had told him that she wanted the Father to see the children. All in all Dr H struck me as being a careful and completely credible witness. Ms G 101.Ms G appeared on behalf of the Mother. Ms G provided some very useful information on parallel parenting as opposed to co-parenting. She said that this was preferable where there was a high conflict situation, as here. She said that there were qualified counsellors in both Hong Kong and the UK who would be able to assist the parties in this respect. Social Welfare Reports 102.Recommendations made to the court in social welfare reports, although not binding are persuasive. If the court decides not to follow the recommendations made then reasons must be given. Ms Rattigan summarizes both as follows:
Mr. L recommended joint custody with care and control to the Mother and defined access to the Father. This was prior to the Mother’s application to relocate.
I accept that this is a concern.
103.These sentiments were echoed in Dr B’s letter set out above. As I have also said, access has to a certain extent now been normalized, although it is not clear how “cemented” it is. Undertaking 104.I asked both parties to give an indication of the undertakings that they were prepared to give in relation to therapy in the event that they were either successful or unsuccessful. They responded as follows Mother’s Proposals
Conclusion on relocation 105.Having considered all of the factors above, it seems to me that it would be in the best interests of these children to allow them to relocate with their Mother but only after a period of time has elapsed. This is to ensure that as far as possible the children’s relationship with their Father has further cemented prior to them relocating. 106.This order is also made on the basis of each parties undertakings as set out above including an undertaking to attend a course in parallel parenting prior to the relocation. I have also noted that the Mother will undertake to continue to receive individual therapy. It seems to me that this is imperative if she is to adjust appropriately to the Father’s new situation. The Mother’s proposals in relation to individual counselling for the children should also be put into place both here and in the United Kingdom. 107.I will also expect a mirror order to be entered into in the United Kingdom before the Mother relocates. 108.Further it seems to me that it would be sensible if the proceedings for ancillary relief had also been concluded before the Mother leaves. 109.All things being equal the Mother should be able to relocate after Easter, or at the very outside at the end of the summer term. I appreciate that this may cause some difficulty as the Mother is continuing to live with friends. During the hearing I asked the Father how long he thought he would be able to support the Mother at the present level. He said for a few months, but ultimately he would do whatever it takes. I accept that the Mother may need to move into another property on a short term basis and that there will inevitably be cost consequences. Joint Custody v Sole Custody The Law in Hong Kong 110.In SEB v ZX (Custody) [2007] HKFLR I referred to the law on custody in the following terms:
111.I did not elaborate on the concept of so called aspirational orders, but will do so now. In Caffell v Caffell [1984] FLR 169 the Court of Appeal allowed an appeal where a Judge had granted custody to the Father and care and control to the Mother. The Court of Appeal held that
112.Thus the Court of appeal ordered joint custody notwithstanding the fact that the relationship between the Mother and Father was acrimonious. 113.Ormrod LJ added
114.There is little case law to assist from England and Wales after this case, which in part is because in 1989 the Children Act brought in the concept of joint parental responsibility. The Law reform Commission in Hong Kong similarly recommends that Hong Kong move away from using terms like custody and access and replace it instead with the concept of joint parental responsibility, with orders being made for residence and contact as needs dictate. 115.The Hong Kong courts have on occasions adopted a similar approach to Caffell. For example in H v A FCMP 186/2003 HH Judge Geiser made an order for joint custody where the parents were unmarried and where the Mother found it impossible to communicate with the natural Father.
116.Of course each case must be decided on its own facts. In SEB v ZX (Custody) sole custody was ordered to the Father with shared care to both parents. Recently in Y v P [2009] HKEC 1322, our own Court of Appeal reversed an order for joint custody. Rogers VP made the following points:
117.It seems to me that the present case can be distinguished from Y v P. First and foremost although the Father initially wished to jointly co parent, given the relocation that will no longer be possible. He does however wish quite rightly to be as involved as possible in the children’s lives going forward. The Mother has already indicated by the undertakings set out below (para 121), that she understands and is willing to involve the Father. Both parents have also undertaken to attend a course on parallel parenting. Consequently although communication has historically been difficult they each understand that in order to effectively parent the children going forward that there will need to be some level of communication between them and they are willing to look at practical ways of ensuring that this happens. For example the Mother has suggested communication in an agreed manner such as via a message book or e-mail. This can only ultimately be for the children’s benefit. How should the issue of custody and care and control be determined given my findings in relation to 1 above? 118.Given my findings above it is inevitable that the Mother will have care and control of the children with defined access to the Father. However before I leave the debate on joint care and control I would like to refer to a very interesting article in the September 2009 issue of Family Law, vol 39 p 831 entitled Shared Parenting: The Law, The Evidence and Guidance From Families Need fathers by Joan Hunt, Judith Masson and Liz Trinder
119.I should also add that I had very real concerns about the Father’s proposals for shared care in any event. I agree with a lot of what Mr Poll has said on the subject. For the record it does not seem to me to be sufficient for one domestic helper to be employed to look after five children, even on a one week on one week on basis. The Father said that he intended to take two afternoons off a week. Likewise the Father’s cohabitee said that she also intended to take some afternoons off. I question the viability of this when the Father and his partner are in a start up situation and it is imperative that their new company is successful. I have no doubt that it will take a lot of hard work and commitment to make the new company a success. In such circumstances the Father’s ability to take off two afternoons a week long term must be questioned. Even in the event that the Father and his partner were able to take some time off, it will still be extremely difficult to manage 5 children and their individual needs (play dates, extras curricular activities etc) without additional help. This is especially so when compared to the alternative – i.e. the availability of the Mother, for the time being on a full time basis, especially when it is she who has been the primary care taking parent of the children throughout. Custody 120.There is still however, the issue of custody to determine. The Mother seeks sole custody on the basis that this is usual where the parties are living in different jurisdictions. Although that might be the case in part, there have certainly been other cases where orders have been made for joint custody either by consent or otherwise where the parties are living in different jurisdictions (e.g. M v B, FCMC 6078/2008). 121.In this case the Mother is willing to give the following undertakings:
122.I am also conscious of the fact that the Mother will be returning to the UK where the assumption is that all parents have joint parental responsibility in any event. In those circumstances I intend to make an order for joint custody. In part this is to recognize the Father’s continual role in the lives of the children going forward. 123.I am also conscious of the fact that this accords with the recommendations made by the first Social Welfare Report, although it is of course true that these recommendations were made before the Mother applied to relocate. As stated above the second welfare officer felt unable to make any recommendations. How should the children’s time be allocated between their parents in the short term and in the long term? Short term 124.In the short term it is of course important that the Father continues to have regular access, including staying access, so that he is able to continue to cement his relationship with the children. Initially the Father saw the children twice during the week and once at the weekend. This was also before staying access had been introduced. Now that access is back on track the Mother asks that any access be altered to once during the week and every other weekend. The difficulty with that proposal is that the Father may go a whole week without seeing the children at all, which in the context of this case does not seem reasonable or sensible. In the circumstances it seems to me that Dr B’s recommendation on p. 10 (paragraph 6) should be used as a basis for a short term order. 125.Therefore in the short term prior to the Mother relocating the Father will have access as follows on a fortnightly cycle
Other access to be by agreement between the parties. 126.In addition the children’s Christmas school holiday will be shared. The Mother will have the first week including Christmas i.e. from the 19 December - 25 December inclusive. The Father will have the second week i.e. from the 26 December – 1 January inclusive. The children have a week off at Chinese New Year. This will be spent with the Father i.e. from 13 February – 19 February. The children have two weeks off at Easter. Given that this may be the period just before they relocate the Father will have the first half – i.e. from the 27 March – 2 April 2010. If they do relocate then, the Easter holiday will be split with the Father having the first half and the Mother the second half. In the event that the children remain in Hong Kong until the end of the summer term, the Father will have holiday access to the children for the first four weeks of the school summer holidays, with some allowance for the children to see their Mother if the children are in Hong Kong at that time. Longer term 127.I am not persuaded that access over the longer holidays should start off first in the United Kingdom, unless the Father is willing to proceed on that basis. Bearing in mind the situation here it seems to me that the children will need to travel to Hong Kong over the longer vacations and that this should commence either in the summer or Christmas of 2010, depending on when they relocate. I will give leave to the parties to address me on this further. This is partly because any order that I make will have cost implications (i.e. flights etc) and I would like the parties to have an opportunity to give that further thought before I make an order. I should add that otherwise the Mother’s proposals have a lot to recommend them. For shorter access periods it seems to me that the Father will need to travel to the United Kingdom to see the children. Conclusion 128.Upon the Mother ‘s undertakings given in paragraph 121 above and upon both the Father and Mother undertaking to attend counselling sessions on parallel parenting and upon the children having counselling as proposed by the Mother and upon a mirror order being put in place in England prior to the relocation and upon the issue of final ancillary relief having been resolved, I will give leave for the Mother to permanently remove the children out of the jurisdiction of Hong Kong either at Easter 2010 or at the end of the school summer term 2010. The Father shall have defined access on a short term basis as set out above. I will give leave to the parties to come back to Court to make further submissions on access longer term before I make a final order for access going forward. I will also expect the Father to be able to communicate with the children by phone, e-mail and skype and for this to be expressed in any final court order on longer term access. 129.There shall be an order for joint custody of the children with care and control to the mother and defined access to the father. The Father’s application for joint care and control is accordingly denied. 130.Notwithstanding the difficulties in this case I nevertheless intend to make an order nisi that there should be no order as to costs, to be made absolute at the expiration of 14 days. There shall be certificate for counsel. 131.Finally I would like to express my thanks to all involved for their assistance in what has been an extremely difficult and emotionally charged case.
Ms M Rattigan instructed by Messrs Hampton Winter & Glynn for the Petitioner Mr M Poll instructed by Messrs Stevenson Wong & Co for the Respondent | |||||||||||
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under FCMC 9154/2008