PJM v. GPN

FCMC 4999 / 2014

[2018] HKFC 65

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 4999 OF 2014

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J U D G M E N T
(Sole/joint care and control/shared care, the appropriate split of time during term time and other directions)

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Introduction

1.  This trial was set down in order to determine cross applications with respect to the day to day care arrangements for the two children of the family, T, a boy who is now aged 11 having been born on the XX March 2007 and C, his sister who was born on the XX October 2010 and is now aged 7. Custody is not in dispute, notwithstanding the fact that some of the disagreements between the parties appear to be in relation to custodial as opposed to daily care issues. The parties currently have joint custody. Thus the main issue between the parties, from a courts perspective, relate to the day to day care of the children. The court is asked to consider whether the current arrangements or the status quo of the children should be maintained or alternatively whether or not a different arrangement should be put in place and if so what that arrangement should be? Other directions are also sought with respect to the care of the children going forward.

2.  As will be seen the proposals put forward by each side are entirely reasonable and although T has some challenges, it would seem that both children are currently doing well.

3.  T has special needs and related learning issues. Although there has been much debate about his “diagnosis” there is no doubt that he will need ongoing and fairly intensive support. The parties are agreed that he should attend ABC school from September of this year.  

Background

4.  The parties met in Hong Kong in around 2005/06 when the father was seconded to Hong Kong from the United Kingdom, which is where he was then working. The mother is Filipino but she has residency in Hong Kong, whereas the father was born and grew up in New Zealand. He is of British heritage. The eldest child of the family T was born on the XX March 2007. The pregnancy was unplanned, but not withstanding that the father, who had left Hong Kong at the end of his secondment, nevertheless returned to the territory in order to take up his responsibilities as a father. The parties subsequently married on the XX November 2007. Their second child C was born on the XX October 2010.

5.  Unfortunately, unhappy differences arose between the couple and the father issued divorce proceedings on the 17 April 2014. The parties were able to reach some agreements in mediation and a consent summons in relation to the children was filed on the 4 December 2014. The parties agreed joint custody and joint care and control and initially the children’s time was split more or less equally into two or three day tranches at any given time. In August 2015 the parties agreed to vary this arrangement so that the children spent time with each of their parents on a week on/week off basis with the handover being on Friday’s at 5:30pm. The parties also came to terms in relation to their finances following the Financial Dispute Resolution process. The order in that respect is dated the 2 April 2015.

6.  Both parties are now working full time and they each have their own domestic helper. Originally the parties shared a helper, but this proved untenable in the longer term. The mother has since employed a distant relative as her own helper. Thus each party relies on their own helpers for appropriate support during the weeks that the children are in their care. In addition, the mother has the support of her immediate family, most of whom reside in Hong Kong and she sees her close family members, including a sister who lives in DEF with her own family, on a regular basis. The father’s wider family reside mainly in New Zealand.

7.  Unfortunately, as indicated above, T has special needs and some related learning issues; much of the conflict between the parties arises out of each parent’s approach to this. It is of note that the father accuses the mother of not supporting the children academically and with respect to T, of not supporting his therapeutic and medical needs fully. He also implies that T’s developmental issues may be the fault of the mother. In addition, he suggests that certain problems that T has at school from time to time, are as a direct result of the mother’s parenting style. He is particularly incensed by what he says is the mother’s insistence to medical professionals and others, that T is autistic or on the autistic spectrum, when there is no diagnosis of the same. He wishes to be wholly responsible for all of the children’s medical needs.

8.  The mother for her part says that this is all evidence of the father’s over controlling and condescending attitude towards her. She denies most, if not all of his allegations and maintains that the interests of the children are best served by them continuing to have a lot of contact with her preferably on a 50:50 basis. She is concerned that the father will make it difficult for her to parent the children if he is successful in his application.     

The law  

Custody, Care and control, joint care and control/shared care and access

9.  The law governing applications concerning children in Hong Kong can mainly be found in the Matrimonial Proceedings and Property Ordinance, Cap 192 and the Guardianship of Minors Ordinance, Cap 13.

10.   Section 19 Matrimonial Proceedings and Property Ordinance, Cap. 192 states that

(1) The court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18-

(Amended 69 of 1997 s. 28)

(a) in any proceedings for divorce, nullity of marriage or judicial separation, before, by or after the final decree;

11.  The general principles governing such applications 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 best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to -

(A)   the views 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;

12.  For the avoidance of doubt s. 48 C Matrimonial Causes Ordinance, Cap. 179 adds that

…… section 3 of the Guardianship of Minors Ordinance (Cap 13) (which provides that the welfare of the minor shall be the first and paramount consideration) shall apply in relation to any order for the custody care or supervision of a child which may be made under this Ordinance or the Matrimonial Proceedings and Property Ordinance (Cap 192).

13.  Case law has developed over time and the most authorative explanation of the terminology used in our courts can be found in the Court of Appeal decision in PD v KWW, Civil Appeal No 188 of 2008, 9 June 2010. Reference should be made to that judgment as necessary. 

14.   Given that the parties are agreed that they shall have joint custody I intend in this judgment to concentrate on the terms care and control and shared care. I touched upon this in SEB v ZX (Custody) [2007] HKFLR 165 and in SKP v Y, ITT (Legal Terminology to be Used in Relation to Children’s Arrangements) [2012] HKFLR 422. In the latter I said as follows when discussing the concept of joint care and control and shared care: 

   Joint care and control

   21.   Consequently, joint care and control denotes a situation where the parties are sharing the day to day practicalities of raising a child. It will normally mean that the child is spending significant periods of time with both parents in each of their homes, but not necessarily on a 50:50 basis. However, the time shared is likely to be more significant than in a standard custody/access type order and will probably mean that the child is spending at least 35% of his time based with each of his parents. One would expect that both parents are involved in the schooling and extracurricular activity schedule and it normally denotes a high level of co-operation between the parents. Consequently, one would normally expect an order for joint custody and joint care and control to be made by consent. In the language of the social scientists an order for joint custody and joint care and control would probably be reflective of a cooperative co-parenting scenario.

   So how does this compare with the concept of shared care?

   22.   The concept of shared care as an alternative to joint care and control has developed over time. I referred to this recently in a case that may be going on appeal and is presently unreported namely TAC v VDC nee VDM FCMC 16497 2010. In that case I referred to H v H (unreported, 6 September 2002, CACV 42 of 2002, where the Court of Appeal first upheld an order for shared care. This judgment has been referred to by counsel for the father in this hearing. What is interesting is that in that case an order was made for sole custody and shared care. This approach was then followed by myself in SEB v ZX (Custody) [2007] HKFLR 165 referred to above and more recently in RWS v KCC, FCMC 9661 of 2010 unreported. In each of these cases and for a variety of different reasons it was felt appropriate for the ultimate decision making power to vest in only one parent. Thus orders were made for sole custody. However, the court was anxious to ensure that the child/ren involved should continue to spend significant amounts of time with both parents in a way that was more reminiscent of a joint care and control order. In order to recognise this and the fact that the non-custodial parent continues to have a great deal of practical control in the child’s day to day life, the phrase shared care was coined. Again in social science terms this is perhaps more reflective of a parallel parenting regime i.e. where there is a very high level of conflict between the parents which makes cooperative co-parenting virtually impossible, but where it is in the child/rens best interests to spend significant periods of time with both parents. It would be normal in a situation like that to set out very clearly how the child/ren’s time is to be split between both parents. There is no order for access per se. I made such an order in RWS v KCC, FCMC 9661 of 2010 commenting as I did that:

I have given a great deal of thought to the appropriate order to be made in this case.  As I have said it is not possible for me to make a “parallel parenting” order as such.  However, I would like to make an order that supports the concept of parallel parenting.  Consequently, it seems to me that it would be more appropriate to make an order for shared care as opposed to a traditional order for care and control and access.  This will make no difference at all to the practical arrangements that I intend to put in place.  They would have been the same in either event.  However, the concept of shared care seems to me to echo that of parallel parenting and I would urge the parties to adopt that approach. … … I will therefore make an order for shared care, following the format of the order in H v H i.e. that the care of the children shall be shared between the parents as follows:

     Detailed arrangements were then set out accordingly.

15.  In this case then we are concerned with the appropriate arrangements to be put in place for the two children of the family and how that should be reflected in the terminology used in the court order. Although the parties started out with an order for joint custody and joint care and control, it is clear, given the deterioration in their post divorce relationship and the almost chronic level of mistrust that currently exists between them, that going forward it would be more appropriate for there to be either an order for joint custody and shared care or a more standard order for joint custody, care and control and defined access.     

Discussion

16.  I must now turn to consider the issues, the law and each party’s evidence as set out in their affidavits and as given by them orally during the hearing. I have also heard from the Social Welfare Officer – Ms L, who prepared the second report dated the 9 January 2018.

Each party’s open proposals

The father

17.  The father made the following open proposals prior to the trial:

FATHER’S PROPOSAL

6.   I am proposing a change in the Children’s access schedule over the school term. I propose that all other aspects of the Children’s current access schedule remaining unchanged.  The access schedule I propose for the Children over the school term is as follows:

a.   The Children will be in the care of their Mother from the end of school on Tuesday afternoon to 8:30pm.  Please note that his does not have to be Tuesday, I would be happy to vary the day if circumstances required it be varied.

b.   The Children will be in the care of their Mother every alternate weekend from the end of school on Friday to the start of school the following Monday.

c.   The Children will be in the care of their Mother for the intervening weekend from 10:30am on Sunday to 5:30pm on Sunday. (The father changed this to 8:30 am – 6:30 pm in his closing submission).

d.   Public holidays falling on a weekday during the school term will be shared equally by the parents on alternate days.

e.   The Children will be in the care of their Father at all other times during the school term.

f.   My proposed access schedule for the Children over the school term is also illustrated below:

7.   As a consequence of the ongoing issues with Ms. N [the mother] misleading medical professionals with her claims that T was diagnosed with autism in September 2010, when there is no evidence to support her claim that there was a diagnosis, and the fact that she has disregarded the opinion of medical professionals with regards to T assessment in September 2010, I propose the following in addition to the change in access schedule:

a.   Ms. N will not engage with medical professionals on behalf of the Children without consent of the Father or the Court.

b.   Ms. N will not attend consultations with medical professionals on behalf of the children if the Father is not present, without consent of the Father or the Court.

c.   In the event the Children require urgent medical attention while in Ms. N’s care she must notify the Father as soon as possible.

18.  In the father’s closing he argued that this proposal is still an example of joint care and control and that in reality he and the mother would still care for the children on a more or less 50:50 basis given that he would have limited time with them during the week and the mother would enjoy most of their leisure time over the weekends.

The mother

19.  The mother for her part set out her open proposals as follows:

THE RESPONDENT'S OPEN PROPOSALS

1.   The Respondent is willing to continue with joint care and control as per the recommendations of both Social Welfare Reports;

2.   In light of the most recent Social Welfare Report dated 10th January 2018， the Respondent also proposes maintaining the status quo in respect of access i.e. that the children share alternate weekends with each parent;

3.   As per the most recent Social Welfare Report dated 10^th January 2018， the Respondent is willing to adopt the proposals to appoint a parenting co-ordinator;

4.   In summary, as the Respondent's proposals mirror both Social Welfare Reports in maintaining joint care and control， and adopting the alternate week structure as per the recommendations of the 2^nd Social Welfare Report, her proposals are:

(a)  That both parties withdraw their respective applications for care and control; and

(b)  There be no order as to costs.

5.   In the event that the Petitioner insists on pursuing his application for care and control, the Respondent is of the view that as the matter of care and control has not been heard before the Court previously, that all options should be open to the Court and to the Respondent and in the circumstances, the Respondent will pursue her application for sole care and control and will seek her costs from the Petitioner.

20.  In her opening submissions she added as follows:

17. Thus on this clear understanding, M’s position is, and remains, straightforward.

18. Firstly, the status quo should continue. It is unnecessary to disturb current arrangements set out in court order that M has worked hard to maintain for over for 3 years. Notwithstanding her efforts have been set against a backdrop of regular and unwarranted complaints from F, in particular, regarding her ability to properly care for T and ensure his ongoing medical supervision.  M also notes, from the SIR dated 7^th March 2017， that both T and C do not object to the current, alternating, care and control arrangements and are therefore supportive of the status quo.

19. That said, secondly, M has made clear to F that she would not oppose either

a)   the parties agree to modify the current arrangements to a two-weekly cycle, i.e. alternating residence every two weeks instead of the current weekly arrangement or，

b)   alternatively, to fully accept the recommendations of the SIRs dated 7^th March 2017 and 9^th January 2018 respectively that shared care and control arrangements be maintained， whilst leaving the current holiday arrangements unchanged.

c)   M would be happy to discuss other formulas that would support a shared care & control arrangement that maintained equal division as far as possible - by way of example, fairly recently in April last year, the court has considered a 2-2-5-5 arrangement in N ν N FCMC 5026/2015.

20. Therefore, and for the avoidance of doubt, M has made very clear to F that she had no wish for this matter to get to trial.  However, given the Petitioner is determined to seek sole care and control, then M takes the view that the whole question of ‘care and control’ and ‘access’ (which,to be fair to both parties, has never been decided by a trial hearing), is one that should be considered sui generis on the facts and looked at again from first principles regarding the best interests of the children.  On this basis M clearly wishes to have sole care and control assigned to her with generous, reasonable access to F.

The Social Welfare officer’s reports

21.  There have been two reports filed, the first dated the 7 March 2017 and the second updated report dated the 9 January 2018. I am largely concerned with the second report. Social Welfare Reports are generally regarded as the “ears and eyes of the court” and they provide a very valuable function in that respect. However, the recommendations made are not binding on the court. If the court does not agree with the recommendations made, then reasons should be given.

1st Social Welfare Report dated the 7 March 2017

22.  In the first report the Social Welfare Officer Ms E said as follows:

39. To sum up，T and C’s parents divorced when they were at very young ages.  Both of the parents love the children very much, and both of them are very eager to be involved in the upbringing of their children.  As such, they agreed for joint custody and joint care and control in the first place.  Both children are certain about the love from their parents, and they understand that their parents are separated.  They have adjusted to the pattern of shared care in a way that both of them expressed their opinion to keep staying with both parents alternatively.  Emotionally, they are attached to both parents, and they are emotionally secured in terms of their relationship with parents.

40. While the parent-child relationship is well-maintained, the relationship between the parents is not.  Both parties stated in the present social investigation that there was hard communication problem among them, and there was no trust among them.  Room for negotiation， discussion and compromise is very limited.  The problem. makes the co-parenting difficult, especially on taking care of T who has special needs.  Taking care of a child with special needs can be stressful for parents, and an agreement between parents on perceiving the problem. areas and deciding on the care plan is crucial.  Having different perception and idea would definitely worsen the parents’ relationship and is not beneficial to the child.  This application for variation of shared care and control seems to be the result of mistrust and different parenting style among the parents.  Nonetheless, they basically agree to keep the joint custody, which means that they have to be co-operative and communicate with each other in making important decisions for their children.  Because the children are still young) and the way is long, it is opined that the parents should seriously consider for an appointment for parental co-ordinator so as to improve their co-parenting.

41. Considering the present child care condition, the working hours of both parents and their capability for child caring， the parents and the children's view and wish， I recommend to maintain the shared care and control, but that the arrangement shall be changed that, the children shall be in the care Mr M, the Petitioner during school days from Monday after school to Friday morning when he drops the children at school, and the children shall be in the care of Madam N, the Respondent from Friday after school to Monday morning when she drops the children at school. The arrangement for school holidays remained unchanged.

23.  Ms E was not called to give evidence in court. The mother said that she was prepared to accept these recommendations. The father disagreed, as it would mean that he would never have any down time with the children. However, he seems to have taken them into account when making his open proposal and he says in his closing that it was unfortunate that Ms E was not called to give evidence as she clearly had good reasons for making the recommendation that she did. I tend to agree that this proposal would most likely not be in the children’s best interests as is stands given the disproportionate emphasis between week days and weekends. I also rather suspect that it would not “solve” the dispute over homework given that T in particular will be expected to do homework over the weekends once he begins senior school.   However, I do accept Ms E’s suggestion that the parties should consider appointing a Parental Co coordinator. Given the almost chronic level of conflict and lack of trust that exists between the parties, it seems to me that the appointment of a Parental Co coordinator could only be a good thing.

2nd Social Welfare Report dated the 9 January 2018

24.  The second Social Welfare Officer Ms L recommended that the current arrangement remain unchanged. In her report she stated as follows:

34. The present social investigation reveals that both Mr M and Madam N love T and C very much and have been trying their best to be good parents. Both of them have been doing their best to offer good care, education, living environment to the children, to cater the children’s various developmental needs especially the various treatments given to T and maintained an affectionate relationship with them.  Both of them are very eager to be involved in the upbringing of their children.  As such, they agreed for joint custody and joint care and control in the first place.  However, Mr M and Madam N hold different parenting style, different management style of day to day issue, different perspective on T’s diagnosis and distrustful attitude towards each other.  Mr M regards the diagnosis affects the related treatment and expectation given to T while Madam N regards that she concerns the treatments given to T more than the name of diagnosis of T.  If Mr M and Madam N, as the divorced parents, could recognize and appreciate each other's efforts and cooperate with each other with a positive attitude, this should have been a complementary match for the children so that they can still enjoy the love and care from both parents and get the best level of nurture.

35. Concerning the issue of the care and control, Mr M requests to have the children under his care in all school days， and the mother to have access to the children once in the midweek evening till 8:30pm and overnight access to the children on alternate Friday afterschool to Monday morning and every Sunday from 10:30am to 5:30pm. Madam N thought the present arrangement that is the children lived with the parents in alternate week is for the best interest of the children. Mr M explains that T will be promoted to secondary level and requires more input with higher expectation which T can actually achieve it.  He also has little trust on Madam N’s arrangement especially the medical issue of T.  Madam N believes that the children require the input from both parents and she worries about the children's adjustment to the great change on the care and control.  She later changes the proposal of sole care and control to her after the pre-trial review with rationale that she will have much difficulty to meet the children if sole care and control is granted to Mr M.  Both children are certain about the love from their parents. They have adjusted to the pattern of shared care in a way that both of them express their opinion to keep staying with both parents alternately.  They are emotionally attached to their parents. Mr M has moved to Western district that reduces the travelling time a lot.  Though the parents have different perspective on the diagnosis of T, they implement the present treatment plan of T including taking T to attend medical consultations, give medication and cooperate with the school.  With the support of both parents, T’s need is met and he makes progress in all aspects. Both parents are committed to support T continuously.  In this sense, both Mr M and Madam N are caring and dedicated parents even though they hold different perspectives on T’s diagnosis and different parenting style, I recommend to maintain the shared care and control and the arrangement for school holidays remained unchanged.

36. Taking care of a child with special needs can be stressful for parents, and an agreement between parents on perceiving the problem areas and deciding on the care plan is crucial.  Mr M and Madam N agree to have joint custody for making decisions for the children.  It shows that they recognize the importance of both parents’ input is beneficial to the children’s development.  To address Mr M’s concern on the diagnosis of T and the misleading issue to the medical professional, it is suggested that all written medical reports have to be brought by the parties whenever they attend medical appointments with the children.  It is hoped that both Mr M and Madam N would let go of their differences and seriously considering the appointment of parenting co-ordinator to work out the details of the day-to-day child care arrangement and the medical appointments of the children so as to reduce their dispute which will worsen the parents’ relationship and in turn does not beneficial to the children. 

25.  In the witness box Ms L also made some other valuable observations. She said that the father was a very tidy person and that he liked things arranged in a neat and tidy manner. She added that he was of the view that school instructions should be followed strictly, whereas the mother placed importance on other things in addition to the academics. She said that in her opinion, these were simply two parents who had very different parenting styles. She recommended that each should try to accommodate the other. She reiterated that the father was of the view that T could do better if he was under his care. For her part however she said that according to the school T appeared to be improving and that she was content for the shared care arrangement to continue. She said that in her view both parents were following the instructions from the school and that each provided appropriate support for T. As will be seen I largely accept the recommendations made by Ms L.    

The reports

26.  As indicated above a lot of the conflict between the parents’ centres on T, his diagnosis and the approach that each parent has taken to his special needs both in the past and going forward.

27.  There is no doubt that in the Psychological/Psycho- Educational Assessment of T in November 2014 T was diagnosed with Attention Deficit/ Hyperactivity Disorder combined presentation, Severe and Social (Pragmatic) Communication Disorder. T was 7 years and 7 months old when the assessment was conducted. Dr S, who undertook the assessment, also identified two core weaknesses, namely T’s difficulties with executive functioning and his difficulty with pragmatic social language. In discussing the latter, he said

2) T also has difficulties with language， in particular difficulties with pragmatic (social language).  He performed in the below average range on tasks assessing his receptive language, and his expressive language was towards the bottom of the average range. Moreover, T has trouble using communication for social purposes, has difficulties following the rules of conversations (such as taking turns, rephrasing when misunderstood, and recognising verbal and nonverbal signs to regulate interaction).  Finally，T has trouble making interferences and interprets language literally. Some of T’s behaviours could be associated with an Autism Spectrum Disorder (ASD), but it is felt that his executive functioning and pragmatic language difficulties are more of a prominent challenge for him and may not be caused by an underlying ASD. Having said that, T will still benefit from many of the strategies and recommendations typically prescribed to a child with ASD.

However, T was not actually diagnosed as being on the autistic spectrum.

28.  In earlier reports similar references can be found. In a report dated the 21 February 2011 from the D Hospital, the following Comments and Conclusions were reached:

Comments and Conclusions:

Assessment by the clinical psychologist was compatible with autistic disorder. He was noticed to have deficits in social interaction and qualitative impairment in communication.

T was only 3 ½ at that time.

29.  I have also been referred to two other reports including an Educational Psychology Report dated the 14 November 2016.  This also refers to Dr S’s diagnosis and makes a number of recommendations being strategies and suggestions that the parties might find helpful going forward. It also set out a number of challenges that T was facing at that time:

Summary of Consultation

T is a friendly, talkative boy and it was a pleasure to work with him. He has previously been identified as experiencing Attention Deficit Hyperactivity Disorder (ADHD) and Social (Pragmatic) Communication Disorder.  T takes daily medication (Concerta).

The information gathered by the current assessment highlighted that T has strengths in a number of areas, including:

•   He has settled in to his Year 5 class.

•   He is developing his relationship with Year 5 staff.

•   He responds well to 1:1 support, prompts and encouragement.

•   With adult support, he may sometimes interact with other students.

•   T is particularly motivated by his special area of interest (transport).

•   His ability to analyse and synthesize abstract visual stimuli, as assessed by the Block Design subtest from the WISC-IV^UK, was in the high average range for his age.

•   His short term memory and sequencing skills， as assessed by the Digit Span subtest from the WISC-IV^UK, were in the high average range for his age.

The information gathered highlighted that T displayed greater challenges in the following areas:

•   His social thinking skills e.g. understanding others’ perspectives, ‘reading between the lines’ in social scenarios， wanting to follow his own agenda， not always picking up on clues from the environment to work out what he needs to do, demonstrating whole body listening.

•   His pragmatic language skills e.g. reading typical non-verbal cues， understanding verbal hints (implied messages), demonstrating expected turn-taking behaviour in conversations, making conversational transitions in an appropriate way, providing the right amount of information when responding to questions, speaking using an expected tone/volume of voice

•   His ability to regulate his emotions in a timely and expected manner e.g. becoming very excitable and finding it difficult to calm himself down as required by the situation， engaging in in lots of ‘silly’ or immature behaviours that are not typically associated with children of his age, displaying ‘emotional swings’ whereby he may suddenly begin laughing wildly, running around etc. (Note: Staff indicate that it is very challenging to support T to calm down and re-engage or move on from these episodes.)

•   His ability to manage and regulate sensory information.

•   His ability to maintain expected levels of attention as a result of the challenges outlines above.

•   His ability to access and engage in an age-appropriate curriculum.

As a result of the areas outlined above, T displays a high frequency of unexpected and often challenging behaviours.  His impulsivity and self-directed behaviours mean that he requires a high level of support to focus, engage and remain on task. T finds it hard to engage with his peers in an equal, meaningful manner and this impacts upon his social relationships as well as social aspects of learning such as group work and discussions.

Whilst the current assessment suggests that T is, cognitively speaking, within the low average to average range， it is likely that this reflects an underestimate of many of his skills given his impulsivity, self-directedness and variable levels of attention.

This report is 16 months old; T was 9 years and 8 months old when the report was made.

30.  It was put to the father during cross examination that he had never accepted that T had autistic features. He agreed and pointed out that this was because T had never been diagnosed with autism and that notwithstanding that the mother had nevertheless told people that he had been so diagnosed in 2010. He said that he could not rule out that happening in the future. He did not accept that Social (Pragmatic) Communication Disorder was part of the autism spectrum. It is of note that no medical evidence was produced for the court on that point and therefore it is not possible for me to take this any further.

31.  The mother for her part maintains that she is not so concerned with whether T is autistic or not. She just wishes to get the appropriate support for him regardless of any diagnosis.

32.  I have taken judicial notice of the fact that generally speaking children are not formally diagnosed at a young age with special needs like autism, because of all the issues that are clearly of so much concern to the father, including the fact that a child may be inappropriately labelled as having learning difficulties when that is not infact the case. However, I also have some sympathy with the mother here. T had been referred as possibly being on the autistic spectrum in the earliest report from the D Hospital, although clearly he was too young for any definitive diagnosis to have been reached at that time. Further reference is made by Dr S to autism in his report although he did not diagnosis him with the condition. As indicated above I am not in a position to state whether or not the Social (Pragmatic) Communication Disorder that T has been diagnosed with is on the autistic spectrum, or if it is connected to autism in some way, as has been suggested by counsel for the mother. In any event it seems to me that T clearly has special needs which need to be addressed in an appropriate manner, regardless of what he has or has not been formally diagnosed with.

33.  The Social Welfare Officer has suggested that both parents take copies of all the T’s reports to any medical or therapeutic appointments, so that there can be no misunderstanding in relation to this going forward. The father has rejected this as being impractical. I do not agree. It seems to me that this is a sensible approach and one that should be adopted by both parents. I do not accept that the father’s concerns in this respect are of such a magnitude that a change in the current arrangements is justified. I would suggest however that the mother refrain from referring to T as suffering from anything other than the conditions he has actually been diagnosed with i.e. Attention Deficit/ Hyperactivity Disorder combined presentation, Severe and Social (Pragmatic) Communication Disorder.     

How should the care of the children be split during term time?

34.  In addition to issues surrounding the diagnosis of T’s special needs, the father also maintains that there are issues related to homework support for the children by the mother and T’s additional therapeutic support. The father is also of the view that the children do better at school when they are in his care and he also complains about other minor things including T sharing the mother’s bed and her care of the children when they are ill.

Homework support

35.  Both parents work full time. Consequently, when the children are in the care of either the father or the mother, each party’s domestic helper is responsible for caring for the children between the end of school and when each of the parents returns home. I accept therefore that it is likely that the children will begin their homework before that time. Although the father probably has a more disciplined regime in place for this, I nevertheless accept that the children do their homework when they are with the mother and that she is clearly very well versed in what was required of them and what they each needed to do. Although she admitted that she tended to concentrate on other things apart from the guided reading and mental arithmetic, she nevertheless ensured that the homework was generally done.

Medical and therapeutic support

36.  The father maintains that the mother is uninvolved in T’s occupational therapy and other medical care including the monitoring of Ritalin, which he takes for his ADHD. The mother for her part points out that the father insists on being the parent who controls these matters. Historically the father was wholly responsible for the payment of T’s therapies and medical consultations etc. Therefore, he became the parent who was in charge of the arrangements for the medical appointments and ongoing therapies. I accept that to be the case. I also accept that it would be very hard for the mother to now try to take on a more proactive role in this respect as the father seems very invested in this side of the children’s care. I accept that the mother has simply tried to take the path of least resistance and to not inflame an already highly conflicted situation. I do not accept however that she has acted improperly when the children are ill or that she has tried to instruct medical professionals to the exclusion of the father. For the avoidance of doubt therefore I will further direct that neither party is to engage medical professionals without informing the otherside and seeking their consent to the same. In the event that either party objects or there is some other concern in this respect then reference should be made to a Parental Co coordinator in the first instance. Both parties should be given the opportunity to attend medical and therapeutic consultations. If either of the children requires urgent medical attention, then each parent is to inform the other as soon as possible.

Children’s performance at school

37.  In a very unsavoury part of the evidence the father relied on a number of e-mails from the school for the period from August 2015 – August 2016, which he said went to support his case that T did better when he was with him than when he was with the mother. Understandably perhaps he was cross examined extensively on this by Mr Hotten (counsel for the mother). I accept that it was clear from this that T had both good and bad days. It is not accepted that his behaviour was wholly good when with the father and wholly bad when with the mother or that he always had more successes when in the care of the father when compared with the weeks that he spent with the mother. It is also of note that this evidence was over two years old in any event.     

Other complaints

38.  The father raised other complaints, including the fact that T slept with his mother when in her care. The mother maintains that this was not a regular occurrence, but that sometimes T complained and wanted to sleep with both her and C. I accept that there is a cultural component to this and that the mother has a very small apartment in any event. Again this is a relatively minor issue and the mother agrees that T should sleep in his own bed going forward.     

The father and the mother in the witness box and generally

39.  When considering matters of this nature the court is charged with considering the character of both parties in the witness box. I should say at the outset that both parents struck me, and have during the course of the litigation, as being dedicated and loving parents who only want what is best for their children. They struggle however, in that they do not appear to have any form of functioning parenting relationship and they have not developed the necessary strategies in order to be able to deal with each other on a day to day basis. There also appears to be a lot of underlying emotional baggage that effects their ability to interact with each other. They are clearly both intelligent but have very different outlooks on life. I do not believe that the answer lies with changing the structure of the shared care/joint care and control regime. These problems will continue to surface regardless of that structure. Blaming each other also does not help.

The father

40.  The father presents as being a very detailed orientated person. He believes in following rules and regulations strictly. He is neat and well presented and I have no doubt that the Social Welfare’s observations of both him and his home are correct. I have no doubt at all that he provides the children with a well run and regulated home and that he is also loving and affectionate with him.     

The mother

41.  The mother presented as being more emotional. She has clearly been upset by this process and was visibly teary at times in the witness box. I have no doubt that her approach to parenting is somewhat different from that of the father. But she knew what each child needed to do homework wise and has clearly gone to great lengths to educate herself about different approaches to children with special needs. I accept that she always tries to act with the best interests of the children in mind and she has struggled with the father’s criticism of her. Again I have no doubt that the children are closely attached to her and that she is a good and loving mother to them. 

The different options

42.  I do not accept that the father has made out a case to vary the care and control of the children. I have considered whether or not the week on/week off arrangement is appropriate and whether in the alternative it might be better to impose a 2:2:5:5 regime as suggested by Mr Hotten for the mother in his opening proposal. An example of this is set out below:

	Mon	Tues	Wed	Thurs	Fri	Sat	Sun
1st Week	M	M	F	F	M	M	M
2nd Week	M	M	F	F	F	F	F

43.  This would mean that the children would spend every Monday and Tuesday with the mother and that they would also continue to alternate the weekends. In addition, the children would spend every Wednesday and Thursday with their father. The advantage of this proposal is that each parent would then be able to organise extracurricular activities or extra tuition or indeed other therapeutic support for T on a regular day each week when the child is in their respective care. The difficulty is that it means more changeovers in any given two-week cycle at time when T is due to begin senior school in the Autumn and he is going to be faced with many other challenges. It may also be more difficult for the mother to manage, as she has to travel more frequently than the father. In such circumstances and on reflection, I have decided not to interfere with the current week on/ week off arrangement. I have also considered the two week on/ two week off proposal suggested by the mother but I am concerned, given the relative young age of the children, that that would mean that they are away from the other parent for too lengthier a period of time.  

Conclusions and order

44.  Consequently I shall make an order as follows:

i)    The Petitioner father’s summons dated the 3 November 2016 and the Respondent mother’s summons dated the 17 November 2017 shall both be dismissed. Order 1 contained in the court order dated the 4 December 2014 shall be varied to the extent that there shall be an order for shared care with the children splitting their time between the two households on week on/week off basis during term time as they do at present. There shall be no alteration to the arrangements for the school holidays and single public holidays.

It is further directed that:

ii)   Both parties shall appoint a parental co ordinator. The parties may consider approaching the Beam of Hope Project in that respect.

iii)   Both parties shall take all written medical reports to all medical and therapeutic consultations.

iv)   Both parties shall only refer to T having a condition that he has actually been diagnosed with, currently Attention Deficit/ Hyperactivity Disorder combined presentation, Severe and Social (Pragmatic) Communication Disorder.

v)   Neither party shall engage medical professionals for the children including those providing therapeutic support for them, without informing the otherside and seeking their consent.

Costs

45.  Although this is a very high conflict case there is nothing here which takes it out of the realms of the ordinary in so far as costs are concerned. The mother has indicated that she wishes to seek her costs. However, in the first instance I will make an order nisi to be made absolute in 14 days’ time that there be no order as to costs. If either party wishes to challenge this, then they will need to take out the appropriate application. There shall be certificate for counsel and I thank him for his assistance in this matter.

Thus it is further ordered that:           

vi) There shall be an order nisi to be made absolute in 14 days’ time that there be no order as to costs. There shall be certificate for counsel.