Mjs also known as Sjc v. As

FCMP 6 / 2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 6 OF 2010

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BETWEEN

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Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not Open to Public)

Dates of trial: 17 – 20 January 2012

Date of written closing submissions: 17 February 2012

Date of written replies: 5 March 2012

Date of Judgment: 2 April 2012

__________________

J U D G M E N T

(Custody)

____________________

Introduction

1.This is a contested application concerning the arrangements for two young children born out of a short lived cohabitee relationship. The case centres on the arrangements for the elder child, a little girl K who was born in August 2005. K is 6 ½ years old. As the trial progressed however it soon became clear that the situation with respect to the younger child J also needed to be regularized. By consent it was agreed that the court should also consider what arrangements should be put in place for J. J was born in November 2007 and is therefore 4 years of age. The parties are not married. They cohabited for approximately three years and the two children of the relationship were born out of that union.   

2.The central issue to be determined is whether or not K should continue to live mainly with the father and to be cared for by him with the assistance of the paternal grandmother, or in the alternative, whether she should be cared for by the mother and her new same sex partner. The father argues that the status quo should be maintained, whereas the mother asks that K live with her. In either event there needs to be a structure in place so that K is able to see and have a relationship with both of her parents.

3.The father has not seen J since the parties broke up and thus he is effectively a stranger to J. This situation also needs to be regularized. J should likewise be afforded the opportunity to have a relationship with both of his parents. 

4.The mother originally sought sole custody and care and control of K and in the alternative joint custody. It now seems that she is only seeking sole custody. It is assumed that she will retain custody of J. She proposes reasonable access of K to the father. In so far as J is concerned she suggests in the first instance that any access be supervised by the social welfare department. The father for his part seeks all the rights and authority that the law will allow him as father of both children. More specifically he seeks sole custody and care and control of K, with reasonable access to the mother. He asks for reasonable access to J. He agrees that in the first instance access should be conducted with the assistance of the Social Welfare Department.

Background

5.The parties met in 2004 and started to live with each other shortly thereafter. The mother is originally from the Philippines and she works as a singer in a restaurant/nightclub in Wanchai. When they met the father worked as a waiter. He is now employed as a Supervisor with D Hong Kong. The mother is married and she has an elder daughter by that marriage, C, who was born in December 1995. C is now 16 years old. She has always resided with the mother. The mother separated from her husband in 2000, but they have never divorced.

6.Almost immediately after the parties began to live together the mother conceived K. Unfortunately K was born with a club foot and this necessitated a couple of operations in the year or two following her birth. It soon became clear that the parties could not afford for the mother to care for K on a full time basis and in February 2006 K was entrusted to the care of her paternal Grandmother at the father’s family home. It is accepted that this was initially meant to be a short term arrangement.  It was agreed to by the mother on that basis. The mother returned to work as a singer and visited K when she could – usually once a week. A year or so later the mother conceived her second child with the father – J. The visits to K lessened because of the mother’s pregnancy and the need to continue to work. The relationship between the couple was also strained and effectively broke down altogether shortly after the time of J’s birth. Each side accuses the other of inappropriate behaviour. The father accuses the mother of being unfaithful, of having violent tendencies and of over indulging in alcohol. The mother likewise says that the father has been violent. J was born in November 2007. After the breakdown of the relationship the father moved back to live with his parents and K. The mother continued to work and to care for J and her elder daughter C. For a year or so she was not able to visit K as often as she would have liked. The father says she visited spasmodically. The mother says she visited when she could and usually on her days off.

7.In September 2008 K started to attend an English speaking kindergarten. There was some dispute over this in that the mother had wanted K to attend a different kindergarten. In any event the mother’s kindergarten of choice closed down and K started at a kindergarten near the father’s family home in Hunghom. 

8.About a year or so later, in or around the end of 2008 the mother met her present partner, Jn. They quickly formed a same sex relationship and began to live together. Jn also formed a close bond with J. It seems that the father did not see J after he left – although he said that attempts were made to do so. In particular he gave evidence that he had asked to see J on Father’s Day. He says that he wanted to break through the impasse. The mother however refused his request.  It is clear that the mother is now deeply opposed to the father having any contact with J. She found it very difficult to even consider the possibility during the trial. The mother began to ask that K be returned to her from about March 2009. It seems that she did so on the premise that although K was to live with her, that the father was not to have any contact with J. 

9.In July 2009 the mother and Jn set up home together and rented a flat. It seems that from about that time access to K became more problematic. There were a number of incidences, some of which necessitated police involvement. These incidences also involved the wider family – including the paternal Grandmother and Jn. The mother was insistent throughout that K should be returned to her.

10.On the 11 January 2010, after legal aid was granted, the mother issued an originating summons for custody of K during her infancy and for “immediate and unrestricted access from Friday after school until Sunday at 7:00 pm”.

11.This summons has since been amended by agreement to include reference to J. 

12.On the 25 February 2010 an interim order for access was made as follows:

“Interim access to the minor, namely K (the “Child”), be granted to the Applicant between every Friday and Sunday, commencing from 5^th March 2010, on condition that the Applicant:-

(i)  picks up the Child at 4:00 p.m., or 3:00 p.m. upon prior notice of the Respondent, on Friday outside a plaza in Causeway Bay;

(ii)  returns the Child at 9:00 a.m. on Sunday at a Church at Des Voeux Road, Sheung Wan, Central (the “Church”):

(iii)  picks up the Child at 2:00 p.m. on Sunday at the Church; and

(iv)  returns the Child by 8:00 p.m. on Sunday at the a bus station at Hung Hom Market, Ma Tau Wai Road, Hung Hom, Kowloon towards Hong Kong direction;”

13.A DNA test was also ordered and this confirmed that J was the father’s son.

14.On the 28 July 2010 the father issued a summons seeking to have his rights as a father of K acknowledged. This summons was later amended to include the same reference to J. He also sought custody of K and reasonable access of J.

15.On the 16 February 2011 the parties agreed before my brother judge as follows:

“ AND UPON the Respondent’s undertaking to inform the principal of the kindergarten of K that the Applicant is the lawful mother of K and to keep the Applicant informed of K’s major school activities

AND UPON the Applicant’s undertaking not to bring along Jn when attending any of the school activities

IT IS BY CONSENT ORDERED that:-

1. Interim custody, care and control of K be granted to the Respondent with defined access to the Applicant between every Friday and Sunday commencing from 18^th February 2011 on the condition that the Applicant:-

(i) Picks up K at 4:00 pm or 3:00 pm upon prior notice of the Respondent, on Friday outside a plaza in Causeway Bay or other places as agreed by both parties or the Respondent and/or the Respondent’s mother brings K to the ground floor of H Court, Leighton Road, Causeway Bay, Hong Kong at 4:00 pm;

(ii) Brings K on Sunday to the Church at or before 10:00 am at Des Voeux Road, Sheung Wan;

(iii) Returns K by 8:00 pm on Sunday to the Respondent at the G/F of Block X, L Building,  Ming On Street, Hung Hom, Kowloon.”

16.Notwithstanding the fact that the father had interim sole custody of K by agreement, a dispute then arose concerning K’s primary school. In the end K was enrolled with the English medium school D English Primary School. K has been attending the school since September 2011. She is progressing very well. She has a tutor to assist her with her studies who comes to the father’s home five times per week – i.e. from Sunday – Thursday evening. She continues to see her mother most weekends.

17.During the period following the order of the 16 February 2011 there were a number of very unfortunate events all of which were instigated by the mother:

a)  An article was published in the Hong Kong News in 2011. This was a one sided news piece seemingly published with the mother’s consent. There was a picture of K, together with C, J and the mother. All names were published in full.

b)  Details of the present case were uploaded by the mother on the internet – together with pictures of the children. She says inter alia “I decided to make this community page as an act of public appeal, so it could help me raise 100,000 LIKES so I could get back my second daughter… back to me and her siblings”. She also posted the most offensive message presumably directed against the father which I will not repeat here.  This is in 2011.

c)  In addition videos were uploaded onto the mother’s YouTube page, which appear to show all three children – C, K and J singing in a bar/restaurant. There were uploaded in 2011. It is not clear if the videos were taken during the day or at night. The choice of song is sexually explicit for youngsters and the children are clearly seen in one video clip being tipped for their performances.

18.The mother has since apologised for her actions in court – but also seeks in her submissions to justify the same. For the avoidance of doubt there can be no excuse for such behaviour.

The Law in Hong Kong

19.It is necessary before turning to the evidence to look at the law governing applications concerning children of unmarried parents in Hong Kong.

s. 3 (b), (c) and (d) Guardianship of Minors Ordinance Cap 13 says that

“(b) except where paragraph (c) applies, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other; (Amended 17 of 1993 s. 19)

(c)  where the minor is illegitimate-

(i)  a mother shall have the same rights and authority as she would have by virtue of paragraph (b) if the minor were legitimate;

(ii)  a father shall only have such rights and authority, if any, as may have been ordered by a court on an application brought by the father under paragraph (d); (Added 17 of 1993 s. 19)

(d)  the Court of First Instance or a judge of the District Court may, on application, where it is satisfied that the applicant is the father of an illegitimate child, order that the applicant shall have some or all of the rights and authority that the law would allow him as father if the minor were legitimate. (Added 17 of 1993 s. 19. Amended 25 of 1998 s. 2)”

In other words from a legal perspective, prior to these applications being made sole custody of both children vested in the mother. 

20.The general principles governing applications relating to children are set out in s. 3 of the Guardianship of Minors Ordinance, Cap. 13, which says that:

GENERAL PRINCIPLES

(1) In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property-

(a) in any proceedings before any court (whether or not a court as defined in section 2) the court-

(i) 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; and

(ii) shall not take into consideration whether, from any other point of view, the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father;

(b) except where paragraph (c) applies, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and shall be exercisable by either without the other;

Other matters to take into account

21.In addition both parties’ lawyers have referred me to the check list first referenced in the Law Society’s Commissions report on Custody and Access in March 2005. This is not a statutory check list and the court is not obliged to consider it. However it has on occasion been found to be useful. The check list states that the following factors may be considered when considering an application concerning arrangements for children:

(a)  the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b)  the child’s physical, emotional and educational needs;

(c)  the nature of the relationship of the child with each of the child’s parents and with other persons;

(d)  the likely effect on the child of any change in the child’s circumstances;

(e)  the child’s age, maturity sex, social and cultural background and any other characteristics which the court considers relevant;

(f)  the attitude to the child, and to the responsibilities of   parenthood, demonstrated by each of the child’s parents;

(g)  any harm which the child has suffered or is at risk of suffering;

(h)  any family violence involving the child or a member of the child’s family;

(i)  how capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(j)  (a broader formulation along the lines of) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(k)  the range of powers available to the court under this Ordinance in the proceedings in question;

(l)  any other fact or circumstance that the court thinks is relevant.

I will not refer to the checklist point by point – but I have considered it generally when discussing the issues.

Case law

22.In the recent Court of Appeal decision - PD v KWW, Civil Appeal No 188 of 2008, 9 June 2010, the Hon Hartmann JA helpfully reiterated the law on custody, joint custody, and access and shared care. I will not repeat the same here – but reference should be made to paragraphs 26 – 57 as required.

The issues

23.The present issues before the court are as follows:

1) Who should have care and care and control of K?

2)  Should sole custody of K vest in the mother or in the father or should there be an order for joint custody? What other orders might be made?

3)  What structure should be put in place so that both parents are able to spend time with both K and J?

4) Should any order be made for K’s maintenance?

The father’s case

24.In essence the father’s case is that the status quo should be generally maintained. He acknowledges that he has been greatly assisted in taking care of K by the paternal grandmother. However he also maintains that he is a hands on father. I accept that to be the case. He is particularly concerned that the mother does not appear to have a suitable child care plan in place for K. For example he does not believe that she has a domestic helper to assist her and her partner and he is concerned about the mother’s choice of school. He believes that it is inappropriate for K to visit the mother’s place of work and for her to sing adult songs in public. He believes that she is often out in Wanchai late at night. He agrees that the mother should see K on a regular basis and is open to the possibility of mid week access and additional access over the longer school holidays. But he is keen to ensure that her present routine with school and additional tutorial support is not upset.

25.In so far as J is concerned the father would like to have access to J. He acknowledges and understands that he is a stranger to J and that he would need to be introduced to him on a step by step basis. He suggested perhaps meeting him for short periods of time on a Sunday first. He initially suggested that he meet J in the presence of the mother – but agreed with the mother’s suggestion that in the alternative he see him in the presence of a social welfare officer.

The mother’s case

26.The mother’s case put simply is that young children need to be with their mother. She says that K needs to be with her so that she can bring her up, just as she is bringing up her other children. Although the mother works, she says that with the assistance of Jn that she will be able to provide K with all the hands on support that she needs. The mother did not seem to have given any real thought to her choice of school and either the cost involved or the fact that the medium of instruction is Cantonese. She was not able to confirm that there was at present a school place available for K should the child be based with her.

27.The mother had great difficulty emotionally with coming to terms with the fact that J should have the ability to form a relationship with his father – although logically she accepted that that must be the case. She proposed that

If the Mother is granted custody of K, her proposals are that the Father shall have reasonable access, including staying access as follows:-

(a)

(i) Weekly staying access between 6 pm on Friday to 6:00 pm on Saturday.  Sundays are to be well spent with the Mother and her siblings.  No interruption during the access time.

(ii)  The Father should have full responsibility for bringing K back at the end of the access visit, not the grandmother.

(iii)  Staying access for half of all long school holidays, including summer vacation, Christmas, Chinese New Year and Easter holidays; and

(iv)  Reasonable telephone access.

(v)   Maintenance includes: School Fees (Textbooks, School Uniforms, School Bus, daily school allowance if necessary for K being in primary level.)

In the alternative to (a)(i):

(i)  Weekly staying access between 6 pm on Friday and 10 a.m. on alternate Sundays, and until 4:00 p.m. on the other Sunday in the two week cycle.

If the Father is granted custody of K, the Mother’s proposals are that she shall have reasonable access, including staying access as follows:-

(b)

(i) Weekly staying access between 6 pm on Friday to 6 pm on Sunday.  No interruption during the access time.

(ii) Staying access for half of all long school holidays, including summer vacation, Christmas, Chinese New Year and Easter holidays;

(iii) Reasonable telephone access; and

(iv)  Freedom to access in anything in relation to K’s school activities.  (Formal “get-to-know” with K’s teachers and school principal, PTA meetings, School’s website and password – if it’s school’s protocol, Report card collection.  Any of the school programmes, etc).

In the alternative to (b)(i):

(i) Weekly staying access between 6 pm on Friday to 10:00 am on alternate Sundays, and until 4:00 pm on the other Sunday in the two week cycle.

With regard to J, the Mother has difficulty coming to terms with the Respondent’s application for access at the moment, for understandable reasons.  The Mother considers that initially access should be supervised, with the help of the Social Welfare Department.

45. Financial Provision

s. 10(2) of the Guardianship of Minors Ordinance gives the Court power to make various forms of financial provision for a child, which includes periodical payments towards such child’s maintenance.  The test is simply what is reasonable having regard to the means of the parents on whom the requirement is imposed (s. 10(2)(b)).

46.  We respectfully request your Honour to make necessary financial provision for K only, if the Mother is granted custody of her.”

The mother and C

28.C is now 16 years old. She has always lived with the mother. Pictures have been produced showing her dressed up in party gear in Wanchai. She is failing in school and her conduct was deemed to be unsatisfactory. Counsel for the father summarized it thus, referring to her report card dated the 11 July 2011:

C failed in 3 subjects, namely:

(i)  Mathematics;

(ii)  Business, Accounting & Financial Studies; and

(iii)  Tourism & Hospitality Studies.

(a)  C had been late 3 times;

(b)  C had been absent for 9 days;

(c)  C had been given 3 black marks;

(d)  C’s conduct was “E” (A being Excellent while E being Unsatisfactory)

(e)  C was given “concession pass” so that she could be promoted to F.5.”

29.It seems that C’s father still supports her financially. It is not sure to what extent he is involved in her day to day life. During the trial the mother blamed the respondent father for C’s unsatisfactory conduct. For the avoidance of doubt I do not accept that to be the case.

30.My concern is that the mother does not appear to have been able to provide C with the support that she needs in order to thrive both academically and generally. There may be a perfectly reasonable explanation for this. Unfortunately it was not clear to me what that might be. I do not however accept that the blame can be placed at the respondent father’s door. 

31.I must now turn to consider the issues, the law and the parties evidence as set out in the parties affirmations and as given orally during the hearing.  For the avoidance of doubt, in so far as the matters set out in this judgment differ from the evidence of the father or mother, that is because I have preferred the evidence of the other party or because I do not find the evidence given credible, or because I consider that the documents produced confirmed my findings of fact.  In addition I have had the opportunity to observe the demeanour of the parties while they gave evidence in court.

32.I have also heard evidence from the paternal grandmother and the father’s sister and from the mother’s partner, together with oral evidence from the social welfare officer who wrote three SIR’s, the first dated the 22 April 2010, the second the 8 February 2011 and the third dated the 17 October 2011.

Discussion

The character of the parties

The mother

33.The mother came across as someone who was fuelled by emotion. She believes passionately that a child should be with his or her mother. She did not seem able to comprehend that a child also has a right to have an ongoing relationship with both of his or her natural parents. She found this aspect of the case incredibly difficult to come to terms with. It seems that she has created a family unit with Jn and that she wanted to bring up all three children within that family unit. It was not altogether clear what role the father would have in this going forward. Notwithstanding the fact that she is legally represented she does not always seem to have made sensible choices in the way in which she has chosen to conduct her case. I fully understand that she loves all three children and I have no doubt that they love her. That however is not the issue.

The father

34.The father came across as a regular person who was trying to do his best in very difficult circumstances. He became quite emotional when talking about J. I accept that he and K have a close relationship.

Who should have care and care and control of K?

Status Quo

35.I accept that the importance of a child’s status quo varies from case to case and that of itself this need not be decisive. (See L v C CACV 333 of 2007 and CACV 353 Zhen Xiao Ting v Yu San Chuen, CACV 404 of 2000 and L v C, CA 33 of 2003). I also accept however that in this particular case K’s present status quo is of central importance. This is especially so given that this particular arrangement has been in place for the last six years – i.e. since she was six months old. On the face of it she seems to be thriving. She is doing very well at school. She has friends and playmates. She seems to be happy. She is living in a loving and caring environment with an appropriate structure in place. She sees her mother, brother and step sister frequently. Given all of that I accept that there may be significant risks associated with changing her day to day living arrangements.

Education

36.K is presently attending the English medium school D English Primary School. Her report dated the 11 February 2012 shows that at the end of the first term she attained A in punctuality, A- in conduct, diligence, politeness and B+ in neatness. Her grades are good. She is positioned 21/94 pupils.

37.The mother initially proposed moving K to a Cantonese speaking school – L School. The difficulty with this is that K’s first language is English. Some basic Cantonese is spoken within the father’s home environment – but that is all. The paternal grandmother is originally from the Philippines. The mother likewise. The paternal grandfather is of Pakistani descent. Neither the mother nor Jn speak very much Cantonese. Although I accept that L is a very good school I am concerned that the mother did not appear to have given very much thought to the difficulties that would be faced by K in such an environment. K would be expected to be able to learn in Cantonese. Counsel for the father explained it thus in his closing submission:

The Respondent opines that D is a school that best suits K in view of all the circumstances. The language used as a teaching medium is most important.  It is more or less universally recognized that the mother language should be used as a teaching medium.  Unfortunately, L School uses Chinese as medium of instructions.  The Applicant also loses sight that text books were written in the Chinese language and K would not be able to benefit from such.  In any event, there is no suggestion that L would be able to accept K as one of the students if K moves to live with the Applicant.

If K were to attend a Chinese medium school there would almost inevitably be a need for regular and substantial help with the Chinese element of her study. For example a tutor might need to be involved to assist K on a regular basis. The mother points out that it would be advantageous to have both K and J in the same school and for them to learn Cantonese. J presently attends L Kindergarten. Although I accept that in theory I rather suspect that in time J may face similar difficulties unless significant additional support is provided for him.

38.In any event by the time that the matter came to trial it transpired that this place was no longer available for K. Alternatives have been mooted but it seems that K did not have a firm school place to move to.

39.All in all I accept what the father’s counsel has said in his Reply to the Applicant’s closing submission:

“78. There could be some other concerns in respect of changing from D to L Primary School, for example:

(1)   It is likely that most students in L are Chinese and speaking Chinese.  There is a risk that K being a non-Chinese, would be discriminated and/or rejected by other classmates;

(2)   As K is mainly English speaking, her communication with classmates speaking Cantonese (Chinese) might be hindered and she might not be able to express herself freely with Chinese classmates;

(3)   K would be new to a class in L.  The other students might have bonded well with each other already and not willing to become friends with K;

(4)   K’s academic performance might drop significantly in view of the teaching medium, difficulties in reading Chinese textbook, difficulties in doing homework that required to be submitted in Chinese language;

(5)   K might have difficulty getting along with classmates in L; and

(6)   Other unknown and unforeseen risks etc..”

40.I accept this.  Even if a place had been available for K at L I am not convinced that it would be sensible for me to move her there at the present time.

Tutorials

41.The father accepts that he and his parents may not be able to properly assist K in her studies. Therefore he has arranged for a tutor to come to the home from Sunday – Thursday each evening. This arrangement seems to be working well. In addition the father’s sister, AZ, gave evidence on his behalf. She is a kindergarten teacher and is able to help K from time to time. She generally visits the paternal grandmother and K on a Wednesday afternoon when they play, bake and she assists K with her homework.

Housing

42.The father lives with his parents, younger brother and K in a 700 square foot property in Hunghom. He says that the atmosphere is peaceful.

43.The mother lives in a flat close to her work in Wanchai which she says is of similar size. She shares the flat with Jn, C and J.

Parenting

44.It is clear that on each party’s own case that both parents rely or will rely on third parties to assist them in K’s day to day care. The father relies on the paternal grandmother, whereas the mother will rely on her partner J and supposedly on part time domestic help.

45.I had some concerns about the provision of domestic help. The mother said in an earlier affidavit that it had been the intention of Jn and herself to engage a full time domestic helper. During the trial it became clear that that had not been possible given their limited income. Consequently she said that they employed a part time nanny for HK$100 per night. It seems that the part time helper changed from time to time. No one was specifically identified. The social welfare officer said that he had not seen any such person. The father believes that there is no such person and that C is often called upon to baby sit. The difficulty with that is that C is only 16 years old and by all accounts has a few problems of her own. It would not be sensible to rely on C to assist on a regular basis. The father is also convinced that at times the children are taken to the bar/restaurant late at night. He says that K is often very tired after access visits. This is in part borne out by the YouTube video clips.

Who will be able to actually spend more time with K?

46.The father’s evidence was that he saw K in the morning’s before she goes to school and that they have breakfast together. He also sees her in the evenings after he gets home from work. The paternal Grandmother takes K to school and picks her up in the afternoon. Some afternoons K still has a nap. The Grandmother also takes her to the park, and to play dates etc. In the evening a tutor comes in order to assist K with her homework.  The father said that he would get home at about 7:00 – 7:15 pm. He works Monday to Friday and on alternate Saturdays. He generally spends time with K in the evening from the time he gets home until she goes to bed at approximately 10:00 – 10:30 pm. I accept that both he and the paternal grandmother are actively involved in the day to day care of K. The paternal Grandmother is 61 years old and in good health.

47.The mother’s evidence was that she and her partner would be able to be “hands on” with the kids and that they would do most of the parenting themselves. It was clear that just as the father relies on the paternal grandmother, that the mother intended to rely heavily on Jn. Jn said that she has a very close bond with J. It seems that she regards him as her own son.  

48.The mother gave evidence that she presently sings 4.5 sets of 45 minutes each which are performed from various times between 8:00 pm – 3:30 am Tuesday - Sunday. Her contract of employment however said that her working hours were from 8:00 pm – 5 am. The mother and Jn both have Monday’s off.

49.In addition the mother sometimes performs at private functions. Previously she and Jn were involved in an online sales business. This no longer appears to be the case. Jn generally works the same hours as the mother.  Given that they both work from early evening until the early hours of the morning I was not quite clear when they would each sleep and how this would impact on their care of the children.

50.The mother describes her present routine with C and J as follows:

“24. My normal daily routine with the family during school days is as follows:-

(a)  6:00 am – I wake up and get the breakfast ready for C which is usually prepared by the nanny during the previous evening.

(b)  7:10 am – C leaves home for school and I then return to bed and take rest, waking up again at around noon to prepare J for school.  The school bus picks him up at around 1 pm just right across from our building.

(c)  1:00 pm – I go back home to take care of necessary things in the flat.  I then take an afternoon nap from 2:00 – 5:00 pm while the nanny takes care of the rest of the household chores.

(d)  5:00 pm – The nanny picks up J from the same place where the school bus picks him up.

(e)  The nanny returns to the flat with J.  We change J and then he eats snacks, while we get ready to go to the park and spend an hour at least for playtime, which is between 6:00 pm and 7:00 pm.

(f)  We are back home by 7:30 pm for dinner.  At around 8:00 pm me and Jn prepare for work while gets ready for bedtime.

(g)  The time we are at work is also the time we make sure the kids are already in bed, and we ensure that they are already sleeping by calling up the nanny.  If the situation at work is not too demanding, we go home to check the kids out ourselves during our break time.

(h)  Work is finished at 2:30 am (weekdays) and 3:30 am (weekends).”

51.J presently attends afternoon school. It is not clear if the mother and J sleep until noon or who looks after J whilst she is sleeping – although I accept that she and Jn try to work this out between them.

52.If however K was to move to live with her mother it seems that she would not infact be able to spend much time with her mother given that she would be at full day school. As things stand at present she would return home whilst the mother was sleeping. There would then be a little time to spend altogether early evening, before the mother and Jn leave for work. This time would need to be shared between the mother, K and the other two children. With respect to homework the mother when asked said that she would hire a tutor to help K if need be. She did not seem to have given much thought to this or to the cost implications.  

53.The case law is clear that if at all possible children should be brought up by their natural parents. In this particular case however it seems clear that each parent would need to rely heavily on the assistance of third parties. On the face of it the father would have more time available to spend with K on a day to day basis than the mother. The mother’s time would also need to be shared between K and her other children.  K would have little “quality” time with her mother. 

Sibling Unity

54.The mother argues that the courts have consistently upheld the view that it is highly desirable for siblings to be brought up together. I would accept this as a general proposition. I also agree that split orders should generally be avoided unless there are exceptional circumstances. I also accept that this is not a “trump card” and that this factor needs to be weighed in the balance along with everything else. I should add that it also seems to me that it is equally important, where that is not possible, for the siblings to spend time together with each of their natural parents. In this case that has not happened. Although the mother has access to K, the father does not have access to J.  

55.The father argues that there are strong circumstances here which necessitate the making of a split order. I agree. In that event it seems to me that it is also important to work towards an environment where both parents (not only the mother) have access to both children together for extended periods of time.

The Recommendations made in the Social Welfare Report

56.Although the recommendations made by the social welfare officer’s are not binding on the court they are persuasive. The social welfare officer is said to be the ears and eyes of the court. In this case the social welfare officer has consistently recommended that sole custody be to the father with defined access to the mother. In his last report dated the 17 October 2011 he said as follows:

“35. It is undoubtedly that both the Applicant and the Respondent love K very much.  The relationship between K and her parents was very good and she appeared to be spontaneous and cheerful at both the parents’ homes as observed by the Investigating Officer.  Yet, regarding the custody of K, the Investigating Officer considers that the welfare of K is of paramount importance, aiming at reducing the negative influence to K caused by the child dispute.  Based on the information gathered in the present Social Investigation, the Investigating Officer’s assessment on the custody of K remains unchanged.  Should K’s custody be granted to the Applicant, K has to take time to adjust to the new living pattern together with the Applicant, her siblings and the Applicant’s female partner.  On the other hand, the child care pressure to the Applicant has been increasing as J, K’s younger brother, has commenced schooling since this academic year and the Applicant has to pay more attention to his schooling matters.  If she gets the custody of K, the child care pressure will further increase because she has to take care of three children, among them two are at tender age, at the same time.  Moreover, the Applicant is unable to render care to the children at night as both she and her female partner have to work at night till small hours.  Though she has employed a domestic helper to take care of the children at night, the quality of care to K when compared with that provided by the Respondent and the paternal grandmother is less secure.  In fact, in the interview with K, she indicated her preference to live with her father and paternal grandmother.  In spite of her tender age, her opinion and feeling should be taken into consideration.  Though K is not living with her siblings in the past years, she can still build up good relationship with them through her weekly return to the Applicant’s home for access.  Her relationship with them was good as observed in the home visit.  Under such circumstances, the Investigation Officer believes that K can benefit more from the continuity of care.

36.   The access arrangement in the past eight months on the whole could be carried out smoothly.  In the present enquiry, the Applicant requested that for future access in long school holidays, she should share more than half of the holidays.  However, the Respondent showed objection.  He requested to share the long school holidays with the Applicant on a half and half basis.  Considering that K has to go to school on weekdays and stay with the Applicant during weekends, the Respondent has difficulty to bring K out for activities other than long school holidays.  Hence, his request on access in the long school holidays is supported.

33.   In view of the foregoing, the Investigating Officer recommends that the Respondent, be granted the custody of the Child-in-question, K while defined access to K is granted to the Applicant, with the condition as follows:

(i) The Respondent/the Respondent’s mother bring K to the Applicant at the ground floor of X, Lockhart Road, Wanchai, Hong Kong at 6:00 pm on Friday or at other places as agreed by both parties;

(ii) the Applicant returns K at 10:00 am on Sunday at the Church at Des Voeux Road, Sheung Wan or the Respondent/the Respondent’s mother picks up K at the ground floor of X, Lockhart Road, Wanchai, Hong Kong at 10:00 am on Sunday morning as agreed by both parties;

(iii) the Applicant picks up K at the Church at 2:00 pm on Sunday or the Respondent/the Respondent’s mother returns K to the Applicant at 2:00 pm on Sunday at the ground floor of X, Lockhart Road, Wanchai, Hong Kong as agreed by both parties;

(iv)  the Respondent/the Respondent’s mother receives K at 7:00 pm on Sunday at the ground floor of X, Lockhart Road, Wanchai, Hong Kong or at other places as agreed by both parties.”

57.As will be seen I accept some but not all of these recommendations.

Conclusion on care and control

58.In so far as care and control is concerned then it seems to me that the present arrangement should be upheld with some minor amendments. In other words K shall continue to reside with her father for the majority of the time and J shall continue to reside with his mother for the majority of the time. Care and control of K shall vest in the father and care and control of J shall vest in the mother.

Should sole custody vest in the mother or the father or should there be an order for joint custody? What other orders might be made?

59.Originally the mother sought sole custody of K and in the alternative joint custody. As I have said it now appears that she is seeking sole custody only. The father asks for sole custody of K and an order that he do have all the rights and authority that the law allows for both K and J. 

60.In so far as custodial issues are concerned these are somewhat limited. There was an issue over K’s schooling. It seems to me that it would be desirable, given the circumstances, for K to continue to be educated at the D School. There will not therefore be any further issue with respect to her schooling until she reaches senior school. This is a long way off.

61.There is also another issue with respect to K’s religious upbringing. The mother says that she wants K raised as a Roman Catholic. At present K attends a Protestant Church – the Church, usually with her paternal grandmother and sometimes with her father and other family members.

62.Although the mother says that she wishes K to be raised as a Catholic there was no evidence that J had been baptized or that he is taken to Church regularly. In the absence of any real involvement from the mother I can see no harm in K continuing to attend the Church with her father and paternal Grandmother. In the event that the mother wishes to take K to Church when she is with her, then she should be able to do so.

63.I have given very serious thought to whether or not in this particular case I should make an order for sole or joint custody. There is clearly a high level of conflict between the parties and neither has actually sought an order for joint custody, largely it would seem because of this. But it also seems to me that it is very important in a case such as this for both party’s roles as parents to be acknowledged. Given that I am going to make an order for joint custody of K to both the father and mother. I do so because although relations between the mother and the father are extremely strained and they find it difficult to communicate, it is clear that the role of each parent should be clearly acknowledged. To that extent this order for joint custody is aspirational. I very much hope that it will provide a basis for future co operation between not only the parents but their wider families going forward.  

64.Consequently when the time comes the parties should try to agree which senior school K should attend. In the absence of any agreement the matter shall come back to court for further directions. K may also attend both the Church when she is with her father and paternal grandmother and the Roman Catholic Church when she is with her mother.

65.I will also order that the father do have all the rights and authority that the law allows for both K and J.   

What structure should be put in place so that both parents are able to spend time with both K and J?

66.I am keen to ensure that both parents have regular contact with both K and J and that they work towards an environment where both children spend significant periods of time with each of their parents together. Both children should also have an opportunity to spend time with their wider families – in this instance on the father’s side the paternal grandparents, and the father’s sister and brother and on the mother’s side Jn and C. In due course therefore I would expect for example that the summer school holidays should be split so that both children spend half of it with their mother and half with their father and that the other school holidays should either be alternated or split between them. I accept however that this will not be possible in the short term.  

67.Short term arrangements for access:

a)  I accept the alternative proposal put forward by the mother i.e. that she should have weekly staying access to K from between 6 pm on Friday to 10:00 am on alternate Sundays and until 4:00 pm on the second Sunday in two weekly cycles. In this way K will be able to continue to attend Church with her paternal Grandmother on a fortnightly basis. Either the father or the paternal Grandmother to pick up and drop off K at the ground floor of X, Lockhart Road, Wanchai or at such other address as may be agreed to by both of the parties in advance. The long weekend to begin on the 13 April 2012 and the short weekend to begin on the 20 April 2012.

b)  In addition the father shall have supervised access to J at the offices of the Social Welfare Department or at such other place as may be proposed by the Social Welfare Department on alternate Saturday mornings or at such other time as may be agreed. The mother or other third party shall pick up and drop off J and K at the Social Welfare Department. K shall also attend the supervised access.

c)  There shall be a supervision order in place for the next six months.

d)  An updated Social Investigation Report be called for in 6 months time on the issue of J’s access to his father and the mother’s access to K longer term.

e)  The mother shall have access to K on alternate single public holidays that do not fall on a weekend or over the school summer holiday commencing on the 1 May 2012 from 10 am – 7pm.

f)  The mother shall have access to K for half of the Easter weekend commencing at 6 pm on Thursday 5 April – 7 pm on Saturday 7 April. With respect to e) and f) either the father or the paternal Grandmother to pick up and drop off K at the ground floor of X, Lockhart Road, Wanchai or at such other address as may be agreed to by both of the parties in advance.

g)  The mother shall have access to K on Monday afternoons when she is on leave from 4:00 pm – 8:00 pm. The mother shall pick K up from school and return her to the father’s home in Hunghom.

h)  The mother shall have staying access to K for half of the school summer holiday. In the absence of any agreement between the parties the mother shall have access to K for the first half of the school summer holiday. The father shall also see K during the mother’s half of the school summer holiday during the weekends at the same times and in the same manner as set out in paragraph 67 (a) above. During the father’s half of the school summer holiday access to K by the mother shall also continue as set out in paragraph 67 (a) above. During the school summer holiday supervised access to J shall also continue.

i)  Other access to be by way of agreement between the parties

j)  Each parent shall have daily telephone access to K during the times that she is not in their care.

Should any order be made for K’s maintenance?

68.Given my order above I will not make any order for K’s maintenance.

Costs

69.Given the nature of this dispute I will make no order as to costs (see London Borough of Suttons v Davis (Costs) No. 2 [1994] 2 FLR 569).  Both parties are legally aided.  Consequently both parties’ costs will be taxed in accordance with Legal Aid Regulations.

Mr. Brettell of Messrs Munros for the Applicant

Mr J Lam instructed by the Legal Aid Department for the Respondent