CCM v. KPH

HCMP 1557/2021

[2022] HKCFI 918

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1557 OF 2021

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D E C I S I O N

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Introduction

1.  This originating summons concerns a minor girl (“HC”) who has just turned 15. HC’s parents divorced in 2017 and her mother (“Mother”) was granted care and control.  The Mother passed away in March 2020 due to cancer.  Since then, HC has been cared for by the Mother’s family, principally by HC’s maternal grandmother (“Grandmother”) and the Applicant who is one of the Mother’s brothers (“Uncle”).

2.  Since the divorce, HC’s father (“Father”) has been paying maintenance to HC but has not otherwise been involved in her life.

3.  The Uncle now applies for an order appointing him as HC’s guardian.  The Father has filed an acknowledgement of service indicating that he does not intend to contest the proceedings and has not filed any evidence.

Legal principles

4.  In proceedings concerning children, the paramount consideration is the best interests of the minor: section 3 of the Guardianship of Minors Ordinance, Cap 13 (“GMO”).  All references to sections below are to the GMO.

5.  The Father is a surviving parent and guardian of HC under section 5, as he has not been declared, on the granting of the divorce decree, unfit to have custody under sections 19(3) and (4) of the Matrimonial Proceedings and Property Ordinance, Cap 192.

6.  Concerning appointment of guardians, the Court’s powers to appoint a guardian can be found in section 8D:

“(1) After a parent or guardian of a minor dies, the court may, if it thinks fit, appoint a person to be a guardian of the minor if—

(a) no guardian has been appointed by the deceased parent or deceased guardian under section 6;

…

(2) On application by any person, the court may, if it thinks fit, appoint the person to be the guardian of a minor if—

(a) the parent or guardian who has a custody order over the minor dies; or

(b) the minor does not have any parent, guardian or other person having parental rights with respect to the minor.”

7.  A guardian appointed by the court under section 8D must act jointly with the surviving parent of the minor and must continue to act after the surviving parent dies: section 8F(1).

8.  A person appointed as guardian will be given, on assuming guardianship, parental rights and authority with respect to the minor: section 8G.

9.  Where 2 or more persons act as joint guardians of a minor and they are unable to agree on any question affecting the welfare of the minor, any of them may apply to the Court for its direction, and the Court may make such order regarding the matters in difference as it may think proper: section 9.

Application of the legal principles

10.  Since the Mother’s death, HC has been living in 2 homes, mainly cared for by the Grandmother and the Uncle.  On school days, she stays in her original home in Shau Kei Wan, which is within walking distance of her school.  She is taken care of by the Grandmother.  The Uncle will dine there with HC and help her with her homework on evenings during the week and sometimes stay there overnight.

11.  On Friday evenings or Saturdays, she moves to the other home in Tseung Kwan O for the weekend.  That is the home of the Uncle, her other uncle and the grandparents.

12.  HC has a close relationship with her grandparents and her 2 uncles. She has been doing well at school.  She is in good physical and emotional health and has handled the Mother’s death very maturely.

13.  The Uncle has in fact been discharging the role of a guardian by providing HC with love, care and emotional support.  He is also able to provide assistance with the homework and maintains a good parent-teacher relationship with her school.  He has the necessary resources to support HC financially.

14.  On the other hand, the Father has not been involved in HC’s life since the divorce, apart from paying maintenance.  HC does not wish to be cared for by the Father, whom she refers to as a “stranger”.  According to the social worker, HC has already perceived the Uncle as her guardian for he has been the one taking care of everything for her since the Mother’s passing.

15.  Given her age, HC’s views ought to be given full weight.

16.  Given what has occurred in the past 2 years since the Mother’s death, it can be seen that HC has been well taken care of.  The current arrangements are in her best interests.

17.  However, there are matters which only a parent or guardian can decide for a minor, such as change of school, seeking medical treatment, application for a HK identity card or a passport.  The Uncle is the best person to be given the formal authority as a guardian to do so, especially in the light of the Father’s lack of involvement in HC’s life.

18.  A Social Investigation Report has been called for.  The social worker has made investigations of all the family members of the Uncle and the school and confirmed the current arrangements of HC as set out above.  Importantly, the social worker reported on the Father’s positive views of the Uncle and considered it beneficial for the Uncle to be a guardian of HC.  The Father only hoped that the Uncle would keep him informed about important developments of HC and discuss the plan of HC with the Father if necessary.

19.  The Uncle acknowledges that even though he is appointed as the guardian of HC, he cannot displace the Father but has to act jointly with the Father.  I do not think the Uncle has any intention to exclude the Father from HC’s life.

20.  The social worker recommends appointment of the Uncle as the guardian of HC.

21.  Considering all the circumstances, I accept that recommendation as being in the best interests of HC and I so order.  There be no order as to costs.

22.  I thank Ms Choy for her assistance.