K v. K

HEADNOTE

          Custody and access - inquisitorial approach not adversarial - negligible value of reports from counsellor/therapist who does not evaluate both parties - influence and importance of traditional religious and cultural environment to be seen in overall context of child's welfare - advantage of tolerance and equal status of parties in multi-cultural, multi-ethnic state. Need for some compelling reason to justify taking children of 10 and 7 from the care and control of mother.

          Costs in children's proceedings. Appropriate order. Costs wasted in indiscriminate preparation of bundles of documents.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. S and S, respectively 10 and 7 years of age are the son and daughter of Mr. and Mrs, K who are now resident in Hong Kong. They are natives of and were married in a Middle Eastern country, an Islamic state, in 1982, and both are practising Muslims. Mother and Father are cousins, theirs having been a marriage arranged by their respective branches of the family. There is some suggestion that their union was brought about in order to reconcile the two branches who were somewhat estranged each from the other. It is not necessary for me to consider that particular situation or make any findings in that regard. The fact that a marriage was arranged between close relatives for the mutual benefit of the families is not a unique one. It happens quite often within the Islamic and other cultures. In a progressive world, and particularly where western influences, which have liberated to a significant state the status of womankind, are felt, such a cultural tradition comes under great pressure. It is not for me to say whether such influences or effects are for the better or for the worse, save in the respect that any cultural or environmental influence which accords a woman a proper and free and respected status in society, must be for the better.

2. Their marriage has broken down, probably irretrievably, but I do not have to consider the reasons for this, the responsibility for its breakdown or the history of the breakdown. At some stage in 1994 the mother left the home country, taking the children with her, having formed another relationship, and went to a Mediterranean island. She did not tell the father in advance, perhaps not surprisingly. I shall deal with this fact a little later, to the extent that it is relevant. But bearing in mind the ethnic and cultural background of both of them, had she disclosed her plans in advance, it is most probable that she would not have been able to leave. Had she left without her children she would have been criticised and regarded, with some justification as, unfit to be a mother. It is important therefore to have some sense of proportion and an appreciation of the problems of a mother in that situation.

3. In due course she and the father came together again, it can hardly be said they were reconciled, and they returned to Hong Kong, with the children, where the parents had in fact spent some years from in or about 1984. The background of their marriage involves periods in Hong Kong and their native country.

4. The legal status of their marriage is at present uncertain. The mother is under the impression that the marriage has been validly dissolved according to Islamic Law and that she has entered a valid contract of marriage with the man with whom she left her native country to go to the island. That is a matter yet to be resolved but she undoubtedly regards herself as having validly remarried. It has only peripheral relevance to the matters which I have to decide, as will easily be seen.

5. The two children are at present living with the mother. She is in public housing having left a refuge. I describe it as such, without any finding as to whether her allegations of abuse by the father are well founded. The children attend a private school from about 8:45 a.m. to about 3:30 p.m. They are in a small class. Their academic progress is good and the evidence indicates that by and large they are happy at school. There is certainly no evidence to the contrary.

6. They have been wards of Court since 22nd May 1995 with the mother having care and control. There is an interim order for access to the father made on the same day. That access is at present, on Wednesdays from 4 p.m. to 7 p.m. and on Sundays from 11 a.m. to 7 p.m. It has not worked satisfactorily in the sense that both mother and father have criticised the other for variations in the timing when access has taken place and for its failure altogether when there has been no access on designated days.

7. It is important to remember that in warship matters the court is essentially inquisitorial in its approach and not adversarial. Almost invariably it is difficult for the parties themselves to appreciate this and sometimes the lawyers lose sight of it - in the present case, the lawyers have, despite the intense conflict between the parties, sought to maintain a sense of balance.

8. The welfare of the children is the paramount consideration but I must necessarily have regard to the rights of outside parties. To what extent in considering both aspects I should have regard to cultural traditions and influences and environment is a matter I have contemplated, I hope with care, and I will set that out in due course. The education and religious upbringing of the children are very important aspects of the overall consideration.

9. In the course of this hearing over two days of evidence and argument I have heard from both parents, from an uncle and cousin of both parents, but called on behalf of the father, from a Social Worker, Miss Janet Wong Siu Pik who had contact with the mother and the children for a short period in the early summer of 1995 when they were living in Harmony House, a refuge for wives and children; and from Miss Monita Yuen a Social Work Officer with the Child Custody Services unit, who prepared a full report dated the 17th May 1996 and who has had contact with both parents and the children, as well as with the school which they presently attend.

10. In addition to the oral evidence I have read a report from Mrs. Deborah Mueller dated the 28th November 1995 who was the Social Work Officer who preceded Miss Monita Yuen and whose report was before the Court when the children were made wards of court and the access to the husband was decided upon. She is no longer in the territory and although her report is undoubtedly thorough and helpful, it has been overtaken by events and the subsequent supervision and assessment of Miss Monita Yuen Mo-Kuen.

11. Finally there is an affidavit by Miss Tessa Stewart who is a Counsellor and Family Therapist and has had regular contact with the mother and the children but has never met or had any contact with the father. I have made it clear to Miss Rattigan on behalf of the mother and to Miss Hung on behalf of the father that essentially Miss Stewart's opinion, where it involves any comparison between the parties, must be flawed because it is partial. It is no reflection upon Miss Stewart to say that although her assessment of the mother and children is of course helpful, and I am sure balanced, that is the limit of her admissible and acceptable evidence. I discouraged Miss Rattigan from calling her to give oral evidence because I had already formed my own view of the mother and had had the benefit of Miss Yuen's evidence which included contact with the father and with the children in the father's presence. I assured Miss Hung that I would disregard any comments by Miss Stewart on her client and would look for independent evidence to assist me, bearing in mind that I was in any event going to see and hear the father.

The Mother

12. I soon formed the view that the mother was an intelligent, articulate, caring and concerned mother. She obviously loves her children very much. She is anxious that they should develop as well-educated, balanced, healthy children in their current environment. She herself has had some ill-health in the past particularly before she gave birth to her first child. She has had some heart trouble but it does not, happily, appear to be serious. It may be associated with the depression and stress which she had undoubtedly experienced and I say that without in any way forming any views as to the rights and wrongs of the issues between the parents in relation to the marriage. But I have to bear in mind the pressures upon her from her own cultural background, and the status of a mother, who has split from the father, and taken the children with her, in an essentially male-dominated and male-orientated society.

13. She lives with the children in very limited accommodation, although by Hong Kong Standards it may be nearer the norm. She is, of course, materially at a disadvantage compared with the husband but it is to be hoped that that can be rectified. She is not employed at present - it may be possible for her to obtain part-time work at some stage - and her concern is with and for the children's welfare. She gets them up early in the morning for school, they travel by public transport, and when they return late afternoon she organises their homework, meals, preparation for the morrow, and bedtime as well as other necessary matters. At weekends she gives them prayer and religious instruction appropriate to their age. I have to take into account her attitude towards the father and the children's contact with him.

14. I am satisfied that she is intensely critical of him borne, no doubt, out of her perception of his attitude to and treatment of her. She is very doubtful of the genuineness of his declared interest in and concern for the children. I can understand this. She has little confidence in him as a father. Like many fathers in certain societies he has delegated most if not all the responsibility for bringing up children, to the mother. Only when the family unit is split does such a father declare his willingness to shoulder day-to-day responsibilities, and his interest in their relatively mundane but demanding activities. However whatever a father's past indifference or genuine concern may or may not have been, it is undoubtedly in the children's interest that he should have constructive contact with and access to them, providing that he in no way constitutes a threat to their general security and well-being. I am satisfied that the mother genuinely wants him to have access to them but is concerned that they should benefit from that and that he should use such access in their mutual interest and not simply as an exercise of some parental right.

15. Although I think the question of their schooling needs to be looked at carefully to ensure that they are in an institution which can provide the maximum opportunity for their general educational development (including the academic) the mother is, within the means available to her, doing her best.

16. I have no doubts as to her capacity as a mother, her concern to put her children's interest first, and her ability to provide a loving, decent environment which caters for their needs.

The Father

17. There is no doubt that he feels that he had been rejected by the mother. She of course feels that it was he who rejected her. Perhaps he has a sense of humiliation because she turned to another man. He has a strong thought that she has turned her back on the whole community and family in particular and that there was no justification for her so doing. Perhaps in so thinking he is the victim of his own cultural constraints. The important point is for me to assess him as a father and whether in particular the situation is such that it is in the children's interest that he should have care and control of them, "de facto" custody. Undoubtedly, in material terms, he can provide for them better than the mother can. He has a bigger home, he has domestic help, he is a business man in a progressively successful way and of course he has an income. He wants them to have the best opportunity for educational advancement.

18. I am also sure he genuinely wants to have access to them. More importantly I think they must have access to him. But I am not satisfied that his attitude is not that of a father who wants to assert a possessive right. I do not think he uses access to the best of his ability and in the children's interest. He likes to have them around. He is in a position to provide much for them and to make access a pleasure for them rather than a chore to be endured. I think, and I regret to have to say this, that he has given me the impression, that he uses access to aggravate the relationship with the mother. That is capable of being remedied. I hope it will be.

19. I have also received the impression that, given the opportunity, if he could take them to his country on a visit, he would not bring their back, unless he himself had to return because of his business commitments. He said as much in a comment to Miss Yuen and he repeated this in evidence. He was very reluctant to concede that the mother had any virtues as a mother. This is a point to which I shall return shortly.

The cousin and uncle

20. Their evidence was largely concerned with the merits of the father. Though the uncle gave vent to criticism of the mother this was based on what the father told him. He simply repeated what he had been told. I do not consider that their evidence helped me in any way. I discounted it. I am satisfied that they were the voices of a larger family unit who supported the father against the mother without any sense of balance or judgment.

21. One practical point I detected put the uncle at a disadvantage from the outset. He spoke little English; he gave evidence through an Urdu interpreter. He had however deposed to an affirmation in English. Instructions for that must have been given in English but the affirmation was translated from the English to Urdu by the father himself, on whose behalf the affirmation was made and filed and in whose interest the contents undoubtedly were. It was hardly the basis for credible evidence.

Miss Monita Yuen

22. I have already identified the nature of her evidence. I found her an impressive, balanced, thoughtful witness, keen to give a fair picture of all concerned. She is amongst the best of her kind.

23. Her report dealt with the children's schooling, home environment, physical well-being, attitude of the children to their parents individually, and the attitude of the parents to each other and to the question of access generally and specifically. She does not favour staying access at this stage and thinks the Wednesday access is of no benefit to the children and is probably a disadvantage. Her reasoning is logical and practical. I accept it.

The points of criticism of the mother Education

24. There is no substance in this. Whilst in due course a more testing school with more children of the same age group will I am sure be a greater advantage, I do not consider that the present position in any way neglects their interests. The father sought to rely on reports from their school when they were in a city in their native country but that was over three years ago and I am not convinced that whatever criticism was directed against their parents in such reports, could properly be laid at the feet of the mother. It would be relevant only if there were some evidence of neglect, or poor judgment, or interference in their present educational arrangements. There is none.

Health

25. The son has had an abnormally high cholesterol level. It obviously needs to be watched carefully. His diet needs care. The father has made much play of an occasion when he took both children to see a Dr. Ho. The son had had a nose-bleed on a Wednesday, shortly before he went with his sister to the father for access. The mother says she told the son to ask the father to take him to a doctor if he was no better. The consequence was three short letters from the doctor all dated the 24th April, the day of the consultation, and obtained no doubt by the father to give to the mother or at least to use in making some point about their health. One letter refers to the son's cholesterol level and the need to take a diet appropriate for it; a second refers to his insomnia, anorexia and an upper respiratory tract infection. The latter was no more than a runny nose and common cold; the first two were reported to the doctor by the father. The daughter, in the third letter, was also reported to suffer from anorexia and insomnia. The son was known for some time to have a high cholesterol level. A report from Dr. Chu obtained by the mother some four days later puts the son's problem in its proper perspective. It is clear he had been seen in September 1995 and had made progress since then. The father also complained that they were thin and not fed properly or having a proper sleep pattern maintained.

26. I am satisfied that there is no substance in any of these express or implied criticisms of the mother.

Religious and cultural contact

27. Both parents are of the Muslim faith and have been brought up in the Islamic culture. Both declare that they want their children to be reared in the same faith and to recognise and be influenced by the Islamic traditions. Neither thinks the other will allow the Islamic traditions and requirements to play a proper part in their upbringing. Having seen and heard both parents I am satisfied that not only is the mother sincere in what she says she wants for her children in this regard, but she also has a balanced view of the extent to which such traditions and faith should govern the children's upbringing in a multi-ethnic, multi-cultural society.

28. The father's view is, I have detected, more rigid. He thinks the conformity with the Islamic tradition should be enhanced by more religious instruction and closer contact with his family members. His cousin he assures me, and he was asked this twice, will marry another cousin solely in order to provide some female influence within his household to help bring up the children. If this really is a genuine arrangement I find it alarming; if it is not, it is a device to try to convince me that what he seeks to provide is a natural home with adequate female influence. Not surprisingly I reject that as a sensible or acceptable proposition.

29. He also argues that the mother's flight to the Mediterranean Island is itself indicative of an irresponsible attitude, harmful to the children's interests. I have already dealt with this. Although I must not overlook any peremptory or wayward actions on the mothers behalf, I would have been much more concerned had she abandoned them in her native country. It may well be that according to the Islamic culture, her actions were wholly unacceptable and resulted in her being rejected by her and his family. But that action on her part does not in my view make her unfit as a mother - nor do I think the views of her community as to her conduct are ones to which I should attribute importance in what I have to decide.

30. It may well be that if the father were to have "custody" and care and control the children would be subject to the traditional Islamic culture to a greater extent. But I am satisfied that if he is genuine in his desire to enhance their appreciation of Islamic tenets and traditions, he could use some of his time during Sunday access to this end.

31. The mother's approach is that they should follow and observe their faith in a more modern, liberal and cosmopolitan context. I am sure that this is in their best interests.

32. It has for some time now been a cardinal principle of wardship that a court considers the welfare of the child from the point of view of his or her religious education or worldly career and its general upbringing.

33. In J. v. C. [1970] A.C. p. 668 Lord Upjohn deprecated that:-

"in so many of the reported cases over the last hundred years the real contest has been as to the religious upbringing of the infant and orders have been made with scant regard to the true welfare of the infant."

The putting of religion and cultural backgrounds in their proper perspective was underlined by the English Court of Appeal in H. v. H. [1975] Solicitors Journal p. 590. They are not overriding considerations in a claim for care and control. The child of an English mother who was agnostic, and an Egyptian father who was a practising Muslim, was to live in England and go to an English school and there was no need for a close connection with his Arabic and Muslim background.

34. In this case there is no conflict between the parties in principle. Both want the children to be brought up within the Muslim faith. It may be that the father has a more conservative traditionalist view as to how that should be done. However, it would be wrong and contrary to accepted principles for a court to accede to an argument by a parent that he should have care and control because the child is more likely to be reared within the strict Muslim faith and culture and be readily identified as part of the Islamic community with him. The child's welfare within the wider community in which a variety of religious cultures are followed and practised, with mutual tolerance and recognition of human rights and the equal status of parties to a marriage, is the most important aspect. If therefore these two children are brought up in a less traditionalist and more egalitarian concept of their faith that is wholly in their interest.

The two children

35. I have seen the children and spent about half an hour with them. They are both lively, articulate, intelligent and well. From the way they communicated with me, and not from any questioning by me, it is clear that they are concerned about these proceedings and very protective of their mother. They are also keen to see their cousins in Singapore this summer which if feasible seems to me a very good idea.

36. I have no doubt they are being properly looked after. They are outward going and interested like any other normal children of their age. The son has what I detect to be - and I may be wrong - a slightly nervous cough on clearing of his throat. The dark rings under the eyes are negligible. They are thin but not worryingly so. They are at an age when they are slightly built. It would be unthinkable to take them away from their present home.

Conclusion

37. There is no real or sensible reason why the mother should be deprived of care and control. All that I have set out earlier explains why it is in the best interests of the children that they should remain with her. It is important not to lose sight of the fact that unless there is some compelling reason why they should be taken away from their mother's care, control and influence, children of such an age should naturally be with their mother.

38. They will remain wards of court. On the evidence available the court will look favourably upon an application by the mother to take them out of the jurisdiction, subject to the usual safeguards, for a holiday with their cousins in Singapore.

Access

39. I have concluded that the access hitherto subject to an order, needs some revision. This is in the light of all the evidence I have heard particularly that of Ms. Monita Yuen and my assessment of the children. This was not available to the learned Judge on the previous hearing.

40. The Wednesday access will cease. It is of no benefit to anyone, least of all the children. They need to be encouraged to look forward to access with their father, rather than view it as a chore, and that access needs to be used constructively by the father. By limiting access to Sunday at this stage, the father will be encouraged to make the most of it in the children's interests as well as his own. I am satisfied that it is far too early to consider staying access. It may well be that, if the access over the next six months or so proves to be beneficial to the children and if they actually look forward to it, an extension of access will be appropriate.

Costs

41. The mother is legally aided. The father is not though he has been up to a certain stage. The mother is entitled to her costs of these proceedings from 1st February 1996 and I make the necessary order. This is a case where in my view it was clear from the outset on the evidence, that the only proper course was that the mother should have care and control. The proceedings have necessarily involved a substantial expenditure in costs. I am advised that for a two day hearing the cost would be of the order of $100,000 per party. This sum of money could have been spent in the children's interests or by way of maintenance to improve the mother's position. I have assumed that the father received proper and clear advice. It is a great pity that he has chosen to expend such money on the costs of these proceedings.

42. There will be an order for Legal Aid Taxation for both parties.

43. There is one other matter on costs I need to deal with. I have noticed in civil proceedings generally a tendency to prepare bundles of documents without regard to relevance or need. I was presented with three volumes for the mother. The volume of correspondence was used only in respect of two letters and some medical reports which could have been included in the documentary bundle. I reduced the bundle of affirmations, orders, etc. to less than 25% of their original content. Many documents and much correspondence had simply been duplicated. Since public money is at risk in the first instance I have decided to disallow 75% of the cost of such volumes. On behalf of the Plaintiff's Solicitors, Miss Rattigan has invited me to deal now with the question of whether the Solicitors should be allowed to claim that 75% disallowance from the Legal Aid Fund. To do so would entitle them to be paid out of public funds for unnecessary work. That would be wrong in my view and therefore they must themselves bear the cost of that.