C v. S

HCMP 929/2017

[2018] HKCFI 1381

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 929 OF 2017

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D E C I S I O N
(On Replacement of Treating Psychiatrist)

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Introduction

1.  The detailed background of these wardship proceedings has been set out in the numerous published judgments and will not be repeated here.

2.  The plaintiff and the defendant are respectively the Father and the Mother of N who is now 9 years old.  N’s parents have been litigating since March 2010 when N was less than two years old.  On 5 October 2012, the Mother was granted sole custody, care and control of N with access to the Father.  Since then, there had been a number of applications in relation to issues over access.  In the meantime, there was also the Mother’s financial applications.

3.  On 5 June 2015, the Family Judge ordered, amongst other things, the Father’s property “One Silver Sea” at Tai Kok Tsui be settled on trust for the use of N and the Mother until N reaches 18 years of age or ceases full time education, whichever is the later.  Although the Mother was given the keys to the property since April 2017 there was an issue over renovation expenses.  Anyway, according to the Social Welfare Report dated 8 February 2018, N and the Mother have been living in One Silver Sea since 31 January 2018.  Prior to moving in, they were living in Tsueng Kwan O.

4.  In the meantime, the Father issued these wardship proceedings in April 2017 and on 12 October 2017, the Father was granted all the rights and authority that the law allows him under s 3(1)(d) of the Guardianship of Minors Ordinance.

5.  The Official Solicitor has been appointed to separately represent N since about 1 March 2018.

6.  At present, the outstanding applications pending trial in these wardship proceedings are (i) the Father’s Custody Application with the related issue over access, and also (ii) the Mother’s application for N to be de-warded.

7.  The present summons was issued by the Father on 6 February 2018 for N to receive psychiatric service at the Yaumatei Child and Adolescent Mental Health Service (“YMT Child Service”) as per the referral letter dated 12 December 2017 by N’s clinical psychologist Mr Lam Ho Ming, Alex (“Mr Lam”) of the Social Welfare Department.

8.  Mr Lam has been treating N since 2011.  On 12 December 2017, Mr Lam issued the letter of referral (“1^st Referral Letter”) to the consultant of YMT Child Service for N to receive psychiatric assessment and professional intervention, as N had told the Mother that she had “visual images of stabbing her mother to death and ideation of killing her maternal grandparents, God and Buddha”.

9.  The Mother had then said that N’s symptoms started in November 2017 but she did not tell the Father until after the 1^st Referral Letter was issued, and further without informing the Father and without obtaining leave of this Court (as N is a ward of this Court), the Mother took the Child to see a private psychiatrist Dr Li Seung Yau on 16 December 2017.  All this was only disclosed to the Father and to the Court at a hearing on 18 December 2017. 

10.  As a result of what was informed to the Court at the hearing on 18 December 2017, this Court was of the view that N should receive urgent psychiatric treatment from a private psychiatrist as soon as possible, as an appointment with a Government psychiatrist at the YMT Child Service could take time.  The parties were not able to agree to which private psychiatrist.  Thus, on that day, this Court ordered, amongst other things, that

“Unless agreed, parties to submit two names of private psychiatrists to the Court with their full CVs and the Court will decide on who should be the treating psychiatrist for the Ward. Costs of the psychiatrist should be paid by the Plaintiff in the interim and the treatment is to start as soon as possible.”

11.  Eventually, on 3 January 2018, this Court directed, amongst other things, that Dr Joanna Lam be appointed as the treating psychiatrist for N. 

12.  There was a further hiccup when the Father was not happy with this Court appointing Dr Joanna Lam, but eventually, as directed by this Court, a joint letter of instructions was finally sent to Dr Joanna Lam on 30 January 2018, and the 1^st session took place on 2 February 2018.

13.  After this Court’s order of 18 December 2017, in a letter dated 22 December 2017, the Father had made it clear that notwithstanding the appointment of the private psychiatrist, should public treatment later become available at the YMT Child Service, this could be chosen at that time.  However, the Mother replied on 6 January 2018 that the YMT Child Service was no longer in service.

14.  As it turned out this was not correct, the YMT Child Service had only been relocated to another address.

15.  The Father found out the new location of the YMT Child Service prior to the joint letter of instructions was sent to Dr Joanna Lam and urged the Mother to make an appointment the earliest.  The Mother replied to say that as N was about to start receiving treatment from Dr Lam soon, it might be premature to arrange for N to receive further treatment from YMT Child Service.

16.  As pointed out by Ms Juliana Chan on behalf of the Official Solicitor, on 3 January 2018, this Court had also directed that, if the parties agreed, referral also be made to YMT Child Service and if no agreement between them, the parties to issue proper application.

17.  It was under the above circumstances that the Father then issued his present summons on 6 February 2018 to replace Dr Joanna Lam with the YMT Centre.

18.  At the direction hearing on 2 March 2018, the Court gave directions for filing of affirmations and written submissions, and further directed the Mother to make an appointment with YMT Child Service without prejudict to her position, as follows:

“Without prejudice to the Defendant’s position on the Plaintiff’s Summons the Defendant to make an appointment with YMT Child Service at Queen Elizabeth Hospital on or before 7 March 2018 for the first available appointment after 1 June 2018. The Defendant to inform the Plaintiff and the Official Solicitor the date of appointment within 3 days from the date of receiving notification of the appointment.”

19.  After the above order, the Mother left it until the last day 7 March before trying to make an appointment and then claimed that she was unable to make one as she did not have the address proof of One Silver Sea.  Then, the 3 month validity period of the Referral Letter lapsed, and much difference arose between the parents before a fresh referral letter dated 10 May 2018 was finally obtained from Mr Lam on 14 May 2018 (“2^nd Referral Letter”).  According to the Father, the 2^nd Referral Letter was only received by his solicitors on 16 May 2018, and that he was awaiting N’s original ID card to make the appointment.  In the meantime, the Father’s father/N’s paternal grandfather sadly passed away on 21 May 2018. 

20.  Anyway, it would appear that up until now no appointment has yet been made for N at YMT Child Service by the Mother, notwithstanding the order of 2 March 2018.

Discussion

21.  The Father and the Mother, as they have been in the past, launched criticisms and attacks against each other in their respective affirmations.  The Father had also criticized Dr Joanna Lam’s professionalism which, in my view, was completely uncalled for. 

22.  On the other hand, the Mother had not explained why she could not produce any address proof for the making of the appointment as ordered by this Court on 2 March 2018, or why there had been no further steps taken by her to secure an appointment.  I agree with Ms Chan’ s observations on this matter.  In my view, the Mother has been unreasonably inflexible.

23.  The reason why this Court ordered N to see a private psychiatrist in December last year was because an appointment with the YMT Child Service would take time, as with most Government doctors, and the Court was of the view that N should receive urgent treatment.  The Court did not exclude the possibility that N should also receive treatment from a Government Psychiatrist, as seen in the direction made on 3 January 2018.

24.  Having read the parents’ respective affirmations, I do not see sufficient evidence as to why N cannot see both a private psychiatrist and a Government psychiatrist at the YMY Child Service, or why it should be either one or the other.

25.  I do not see the parents’ attitude is in the best interests of N and it is clear that N is much disturbed by being the focus of the prolonged parental disputes and being trapped in between for years, as observed by Ms Chan.

26.  Although N’s condition is observed to have improved after receiving treatment from Dr Joanna Lam, there is no evidence as to when she will fully be recovered, and as pointed out by Ms Chan, so long as the parental disputes continue to put N in a stressful position, there is a real possibility that N would require psychiatric treatment from time to time. As further pointed out by Ms Chan, as N does not have her own means and needs to rely on the Father for financial support, and in view of the protracted disputes between her parents, which are still in high conflict and ongoing, it will be in N’s best interest for an appointment to be secured with YMT Child Service, as not only would it provide professional and affordable psychiatric services to N when in need, it will also serve as a medical safety net for N, and the proposed appointment will not deprive N the right to seek private psychiatric treatment if required.  

27.  The first available appointment from YMT Child Service is likely to be after December 2019.

28.  I agree with the views put forward by Ms Chan, that the appointment with YMT Child Service should not be regarded as a means to replace the current treatment that N is receiving from Dr Joanna Lam.

Conclusion 

29.  Hearing considered all the circumstances, I am prepared to order as follows:

(i)   Leave for N to receive treatment or service at the YMT Child Service as directed by Mr Lam Ho Ming Alex in the 2^nd Referral Letter, as well as continuing to receive treatment from Dr Joanna Lam;

(ii)   The Mother do within 7 days hand over to the Father all necessary documents concerning N requested by the Father for the purpose of making the appointment, including the original of 2^nd Referral Letter and the original of N’s HKID card, upon the Father’s undertaking to make an appointment within 3 days upon receipt and to return to the Mother all original documents within 2 days after an appointment has been made for N. 

(iii)   N is to be accompanied by her parents jointly to YMT Child Service but neither parent is to be present at the time of treatment.

30.  As neither party has succeeded in full in obtaining the orders sought by him/her, I make no order as to costs.  The Mother’s own costs to be taxed under Legal Aid Regulations.