LWY v. YCT

FCMC 9363 / 2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 9363 OF 2014

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JUDGMENT
(Care and Control, Access)

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Introduction

1. This is the trial of the care and control of the only child of the family, whom I will refer to as “C” in this Decision.  At the time of this hearing, C is only 1 year and 10 months old.  The Petitioner is the Mother (“Mother”) and the Respondent is the Father (“Father”) of C.

2. On the 2^nd day of trial, parties agreed that they be granted joint custody of C.  A Consent Summons was produced to the Court and an Order in terms was granted on the same day.

3. C will be attending nursery in coming October 2015 when he reaches the age of 2 years old.  Both the Father and the Mother have separately enrolled C for different nurseries close to their own place of living.  This Decision will no doubt be determinative as to which nursery C will be attending.

Background

4. The parties married in June 2013.  The marriage only lasted for 8 months when the Mother left the matrimonial home in February 2014 after a heated argument with the Father.  Since then, C remained in the Father’s home and being taken care of by the Father with the help of the paternal grandmother.

5. On 16 July 2014 the Mother petitioned for divorce based upon the Father’s “Unreasonable Behaviour”.  The Petition was amended and further re-amended to a so called “mild unreasonable behaviour” petition.  Decree Nisi was granted on 4 March 2015.  Questions of custody and ancillary reliefs were adjourned for further disposal.

6. On 20 October 2014, the Mother obtained an interim access Order of C every Wednesday from 10:30 a.m. to Thursday 8:00 p.m. commencing 22 October 2014.  The Mother had to pick up and drop off C personally at the Father’s residence.

7. Following the Children Dispute Resolution hearing which took place on 22 January 2015 which was ended unsuccessfully, the interim defined access was extended from every Tuesday 10:30 a.m. until Thursday 8:00 p.m. commencing 27 January 2015. 

8. Upon this Court’s directions, 2 Social Investigation Reports  (“SIRs”) had been prepared by the social worker Mr. Lo Chi Wai (“Mr. Lo”) dated 27 November 2014 (“1^st SIR”) and 14 July 2015 (“2^nd SIR”).  Mr. Lo attended this trial to give evidence.

9. Apart from the parties themselves testifying in Court, the paternal and maternal grandmothers were also arranged by each side to give evidence at trial. 

The Issues

10. The one and only one issue is the care, control and access of the child C. 

The Mother’s Open Proposals

11. The Mother’s Open Proposals are for her to be given the care and control of C with defined access (including staying access) to the Father every Friday from 8:00 p.m. to Sunday at 8:00 p.m.

12. On the 2^nd day of trial, the Mother revised her Open Proposals agreeing to joint care and control with the Father with the same pattern of defined access proposed earlier to the Father.    

The Father’s Open Proposals

13. All along the Father maintained his Open Proposals of him to be given the care and control of C with defined access (including staying access) to the Mother every Friday from 6:00 p.m. to the following Saturday at 8:00 p.m.

14. Upon perusal of the 2^nd SIR, the Father agreed to the recommendations of the social worker Mr. Lo.

The Law

15. Both parties agreed that the applicable legal principles are under Section 3(1)(a) of the Guardianship of Minors Ordinance, Cap.13, which provides :-

“The Court –

(i) shall regard the best interest of the minor as the first and paramount consideration and in having such regard shall have due consideration to –

(A) the wishes of the minor if, having regard to the age and understanding of the minor and 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 account 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 ……”

16. Moreover, the Courts in Hong Kong have prevalently applied the ‘welfare checklist’ specified in section 1(3) of the English Children Act 1989 to be relevant and helpful when deciding where the best interests of the children in question should lie.  These are :-

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

(b) his physical, emotional and educational needs;

(c) the likely effect on him of any change in his circumstances;

(d) his age, sex, background and any characteristics of his which the court considers relevant;

(e) any harm he has suffered or is at risk of suffering;

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

(g) the range of powers available to the court under the 1989 Act in the proceedings in question.”

The Social Investigation Reports

17. Mr. Lo joined the Social Welfare Department in 1994 and worked in the Protection of Children section around April 2014.  He has had written over 100 different kinds of investigation reports.

18. Mr. Lo confirmed the contents of his 1^st and 2^nd SIRs are true and accurate and adopted both of them as his evidence in chief. 

19. In his 1^st SIR at paragraph 23, he concluded that both the Father and the Mother are loving parents over C.  Both the Father and the Mother have the support of their own family members in taking care of C.  The child C also living happily with the parties.  Insofar as C’s care and control is concerned, Mr. Lo recommended that the Father be granted care and control with defined staying access to the Mother once a week from 10:00 a.m. to 8:00 p.m. the following day.  Both parents are recommended to attend co-parenting counselling activities.

20. In his 2^nd SIR at paragraph 25, Mr. Lo whilst maintaining his recommendation in the 1^st SIR as to care and control be given to the Father, provided a more comprehensive pattern of defined access to the Mother as follows :-

(a) If C has to attend school, the Mother would have staying

  access from Tuesday after school to Wednesday before school; and then from Thursday after school to Friday   before school;

(b) The Mother has weekend day access once every two weeks on   either Saturday or Sunday from 10:30 a.m. to 8:00 p.m. the same day;

(c) The Mother has 1/3 of the school holidays for staying access, details to be discussed between the parties.

21. Mr. Lo in his oral testimony confirmed his views that both parents are lacking trust with each other and their relationship remain tense (at paragraphs 24 and 25 of the 2^nd SIR).  Nonetheless, both of them love and care C.  He mentioned that when he explained his recommended pattern of defined access in the 2^nd SIR to the Mother, she immediate threw out to him the words in Chinese : “你玩我呀 !”, meaning colloquially, that Mr. Lo was dallying her.  Mr. Lo explained that he had fully considered all the circumstances and was simply trying to achieve fairness and equality out of the case, probably may be 50/50 split for the parties in so far as access time is concerned.  He accepted the Mother is also a good child carer but having considered all the circumstances and other factors, he believes C’s best interests would be secured if the Father is to be given the care and control.

22. Upon being examined by the Mother’s Counsel that his recommendation for the Father to have C’s care and control was premised upon maintaining the status quo, Mr. Lo disagreed with such comment and maintained that his recommendation was based upon full consideration of all the relevant factors, not simply upon the status quo.

The Mother’s evidence

23. The Mother adopted her affirmations as her evidence in chief.  She is now 26 years old and has been a piano teacher for 5 years.  She gave evidence that her work schedule was rather packed over weekends as this was the time that most of her students could attend piano lessons when there are no schools.

24. The Mother in her evidence challenged the Father’s personality and his suitability as a child carer.  The challenges focused upon the Father’s habit of smoking, and also his younger brother smokes at home as well, having had tattoos, lack of time to look after C and also his low educational background.  On the other hand, she is more flexible in her work schedule during weekdays and has more time to look after C herself, her qualities in music, her love and affection.

Madam Yau’s evidence

25. Madam Yau, the mother of the Petitioner/Mother, testified and adopted her affirmation as evidence in chief.  Madam Yau in her testimony confirmed that she herself and her husband, that is the maternal grandfather, would also assist the Mother in taking care of C.  She also testified that she suffered from high blood pressure and requires medication.  She has to attend treatment once every 4 to 5 months.

The Father’s evidence

26. The Father adopted his affirmations as his evidence in chief. He is now 30 years old and working as a supervisor in a warehouse.  He admitted that he did not score any points in the Hong Kong Certificate of Education Examination in 2003.  He was not allowed to take the examination as he suffered from influenza and at that time Hong Kong was plagued with SARS. 

27. The Father also admitted that he has tattoos.  When he was about 18 or 19 years old, he had a tattoo at his arm.  At about 20 years old, he made another one at his back.  He made the tattoos for his personal admires.  In the witness box, the Father explained that he did not apprehend the unacceptability of tattoos amongst local Chinese culture (華人地方) when he made them and at that time he was still young.  He said he does not hope the child C to make tattoos.

28. He has had smoking habit in the past but quitted before C was born.  Upon cross examination, he accepted that his work occasionally requires him to meet clients when he has to smoke a few cigarettes.  However, he would take off and wash all his clothes immediately upon returning home to avoid the child taking in any tertiary smoke (‘三手煙’)”.  In his Affirmation, he said the Mother also has had smoking habit, drinking habit and using foul language (at paragraph 31 of his 1^st Affirmation).  At re-examination, the Father agreed he now smokes purely for social needs (社交需要).  In fact, he and the Mother has had an agreement that both of them would only smoke for social needs (社交應酬).  Although his younger brother smokes, he would not do so at home.

29. The Father’s working hours are from Monday to Friday from 9:00 a.m. to 6:00 p.m.  Since he would be driving to and back from work by motorcycle, he is able to arrive home around 6:30 p.m. every day after work.  He would then assist his mother to feed the child C.  He would also spend his days off with C.

30. Upon cross examination, the Father admitted that he used foul language before C was born.  He had not done so after C’s birth. 

Madam Fan’s Evidence

31. Madam Fan, the mother of the Respondent/Father, testified and adopted her affirmation as evidence in chief.  She agreed she is the main carer of C whilst the Father is at work. She also has high blood pressure and requires medication. 

Analysis of Evidence

32. I will first deal with the evidence of the parties, their respective witnesses, namely, the paternal and maternal grandmothers,  and the evidence of the social welfare officer Mr. Lo.

(a) Evidence of the Father and the Mother

33. It is common ground that the Mother left the matrimonial home after an incident happened on 16 February 2014 where the Father was allegedly to have assaulted the Mother during a heated argument.  The Mother reported to the police.  The Father was prosecuted by the Police for the offence of ‘common assault’.  The trial took place on 3 June 2014 at Kwun Tong Magistracy and he was acquitted after trial. 

34. It is also common ground that in October 2014, there was an incident when the Mother informed the Father that she discovered a “teeth bite” at the right arm of C after access by the Mother.  The Father first took C to a clinic nearby for checking and then to the Princess Margaret Hospital casualty for further treatment.  The matter was also reported to the Police.  Case conference was held by the relevant departments to look into the matter as a suspected child abuse case.  C was admitted to Princess Margaret Hospital for observation until 3 November 2014.   

35. On 12 November 2014, the Case Conference could not ascertain whether the “teeth-bite” was caused by the child himself or any third party and concluded that it was not a case of ‘child abuse’.  However, in view of C’s age and the parents’ lack of mutual trust, there is a high probability of child abuse and the case was then referred to the Social Welfare Department (Protection of Family and Children Services) for follow up and support.

36. The parties’ separation arouse as a result of the incident on 16 February 2014.  In June 2014, the Father was prosecuted for that incident but was acquitted after trial.  In October 2014, there was a complaint of suspected child abuse.  Taking into account all these events, it is not difficult to understand the parties’ relationship is not harmonious if not antagonistic.  This supports Mr. Lo’s views that the parties are lacking trust with each other. 

37. Having said so, there appears to be a high tendency that the parties’ evidence against each other might be offensive and exaggerated rather than honest and fair.  Also taking into account the intimate relationship of the witnesses with the respective parties, the witnesses’ veracities must be carefully assessed with appropriate weight to be attached.  This Court has also minded itself that the parties are those so called “first time parents” having to rely on the advice and physical support of their elderly parents, namely, the respective grandmothers, for taking care of C who is just about 2 years old.

38. On the Mother’s evidence which is undisputed, she has high professional achievements in music as a piano teacher.  She could only have more time to take care of C during weekdays when most of her students are at schools.  She has to make a living through piano teaching over the weekends and thus she is agreeable to the Father having weekend access if she is granted care and control. 

39. The amount of time affordable by a parent to a child is only one of the factors but not a conclusive, decisive or determining factor.  Whenever the factor of time is considered, it always ties up with the concept of “quality” and “quantity” of the time spent on the child.  These two concepts do not necessarily run in consonance.  There is no difference whether it is about ‘access time’ or ‘care and control time’.    

40. Apart from the issue of time, the Mother’s evidence is unable to persuade this Court or prove that the recommendation of Mr. Lo (social worker) of C’s care and control to be given to the Father is not in C’s best interest.

41. The Mother’s challenges, so to speak, rest upon the Father’s habit, personalities and character rather than his abilities to take care C. The fact that the Father requires his mother (that is, the paternal grandmother) to help is neither here nor there.  Reason being that this factor also applies to the Mother’s case as her mother Madam Yau also took part in the caring of C.  Although the Mother asserted that her work schedules are flexible during weekdays, this is only partly accepted by this Court.   The Mother is now teaching piano classes earning about HK$10,000 a month.  As a highly skilled professional piano teacher earning a living through piano lessons, it is more probable than not that there would be preparatory work in weekdays when there are no piano lessons.  Moreover, it is not the Mother’s case that there are absolutely no piano lessons on weekdays.  She only said the bulk or majority (大部份) of piano lessons would be over the weekends.  The fact which remain is that the Mother, as a self employed piano teacher, is always open to her to teach over weekdays whenever she wishes to do so or for financial reasons and if so, her mother Madam Yau will then be assisting her in caring C.  It could also happen that there are occasions of, say, extra tuition upon arrangement (額外補堂) upon parents’ requests.  Accordingly, I find this is not a purely ‘full time housewife’ mother case.  

42. Having said, the factor of the amount of time affordable to take care of C cannot simply be taken at its face value to say the Mother’s position is better than the Father.  I would also emphasize and re-iterate that the concept of “quality” of time plays a much more important part than “quantity” of time, such concept needs no further elaboration. 

43. Although the Father had not positively asserted that the Mother is a ‘bad mother’, so to speak, his allegations as per paragraphs 7 to 12 of his 1^st Affirmation regarding the Mother’s personality, character, as well as her previous background, are quite serious and in my view, do require the Court’s attention.  Those assertions, if shown to be true, would have some impact upon the Mother’s suitability as a child carer.  Nonetheless, no evidence was produced by the Mother in rebuttal to these assertions or putting the Mother’s case on such assertions to the Father at cross examination.  Mother’s Counsel has not been able to undermine the Father’s credentials through cross examination.   

44. On the Father’s evidence, I find him credible.  I preferred his evidence rather than the Mother’s evidence.  He gave clear and unequivocal evidence as to his present work schedule and daily routine.  As for his past misdeeds, the Father openly and frankly admitted the habit of smoking in the past, not just 1 tattoo suggested by the Mother but 2 tattoos, use of foul language in the past.  Throughout his oral testimonies and demeanour in Court, he expressed regret as to his past misbehaviours. 

(b) Evidence of the 2 grandmothers

45. I find Madam Yau’s oral testimonies unconvincing.  She was merely repeating what was recorded in her Affirmation which apparently was prepared with the assistance of the Mother’s lawyers.  Madam Yau is unable to tell the Court any further as to how she took care of C during the access time or the extended access time.  Madam Yau was only able to tell the Court the kind of food that she fed C.  This is no more than telling the obvious.

46. On the other hand, I find Madam Fan’s oral testimonies convincing and truthful.  Shortly after her evidence in chief started, she said the following : “我大仔生性左好多，放工返黎湊仔” which trans-literally means “my elder son (i.e. the Father) has well behaved a lot and back to take care of son after work”.  She also confirmed the Father had not smoked after C was born.

47. During cross examination, Madam Fan was asked about her views as to the Mother’s suitability to take care of C.  Madam Fan answered : “如果媽媽無性格問題，是可以的” which trans-literally means “if the Mother does not have personality issues, it is fine”.  Madam Fan was then further asked by Mother’s Counsel what personality issues she was saying ?  Madam Fan then answered : “情緒波動太大” which trans-literally means “emotionally fluctuates a lot” .

48. Mother’s Counsel then raised the question with Madam Fan by asking her whether the intimacy between C and her (which has been confirmed by Mr. Lo in his oral testimonies and his SIRs) could be easily built up between the Mother and the child C, Madam Fan had this to say : “睇有冇用心 !” which trans-literally means “whether she is minded to devote to”. 

49. Finally, Madam Fan was able to tell the Court that she had once bathed the child for lowering the body temperature (減低體溫) when she felt C was hot but with no fever detected. 

50. Although these questions and answers are straightforward and commonly asked, I noted from Madam Fan’s expression and demeanour in the witness box.  I find her more probably than not was telling the truth.  At one stage, her facial expression showed ‘helpless’ (無奈) in that his elder son (that is, the Father) have had to run into the present situation and dispute.  She did not refuse the Mother to take care of C but only doubted whether the Mother is emotionally steady and psychologically devoted to do so.

51. More importantly, Madam Fan testified that even at present, the Mother still has to bring along toys in order to lure the child when she came to pick up C for access.  She described the child would be looking at the Father and calling for the Father whilst being lured by the Mother.  The child C continues until the doors of the lift are closed.  I believe in Madam Fan’s evidence.  The fact that Madam Fan knows the way to lower body temperature of babies by bathing also proves to me that she is an experienced child carer.

Evidence of the social worker Mr. Lo

52. Upon enquiry of this Court, Mr. Lo agreed that he would have also recommended co-parenting counselling in his 2^nd SIR which had only appeared in his 1^st SIR.  Mr. Lo also said the Mother is a suitable carer.  Upon being asked by this Court as to the comprehensive pattern of defined access in his 2^nd SIR which the Mother felt she was being dallied, Mr. Lo explained that he believes to ensure both parents to have more or less equal time with C is important and is in C’s best interests.

53. The Father together with his parents and younger brother live in a public housing.  The Father had renovated the flat 2 months before C’s birth and all furniture are round edged to cater for C’s safety. There were play mats in the middle of the sitting room, some toys suitable for C’s age are also seen by Mr. Lo during home visit.  The flat is about 35 sq meters with 1 sitting room, 3 bedrooms, kitchen and washroom.  The child will be sleeping either with the Father or the Madam Fan (that is, the paternal grandmother) in a double bed inside one of the rooms.  There are colourful children’s stickers on the wall.

54. The Mother’s place of living is a public housing unit of about 55 sq meters.  There are 1 dining room, 1 sitting room, 3 bedrooms, kitchen and washroom.  Apart from some toys suitable for C and furniture and electrical appliances, there used to be a cat/kitten raised by the Mother kept in a cage under the dining table.  It was reported that the cat/kitten had died in June this year.  Like the Father, all sharp edges of furniture are protected but wrapped up with plastic stripes.  There are also soft mattresses on the flooring.  There is also a piano.

55. Mr. Lo persistently denied Mother’s Counsel’s submission that he focused upon maintaining the status quo without full consideration of C’s best interests in making the recommendation.  

56. I have an in-depth reading of Mr. Lo’s two reports.  I also considered thoroughly his testimonies in Court.  I accepted Mr. Lo’s evidence that both parties are loving and caring parents.  It is difficult to say, without considering all other relevant factors, whether the Mother or the Father is the better carer.  What Mr. Lo is now saying is that when all other matters, historical and present events, such as the alleged assault, suspected child abuse, parties’ perpetual lack of trust, C’s intimacy towards the parents and the grandmothers, when put all together, he formed his views that C’s best interests would be secured by tipping the balance for the Father.

57. I accept Mr. Lo’s views and recommendation on the question of care and control.  Given the age of C and the parties’ place of residence with the Father in Lai Chi Kok district and the Mother in Lam Tin district, I have however some reservation about the recommended comprehensive pattern of defined access to the Mother when the Father was given the care and control of C.  Taking the day to day transport by MTR as an example, the parties are at two different directions of easterly and westerly of Kowloon side.  As C will be attending nursery in October 2015 which no doubt is already a ‘new’ stage and environment for C at the age of 2, the recommended pattern of access would be an additional burden to C.  To alleviate such additional burden, a ‘less disruptive’ pattern of defined access is called for and will be in C’s best interests.  I will deal with the access issue at the following paragraphs of this Judgment.

The Welfare Checklist

(a)  The ascertainable wishes and feelings of C

58. C will be 2 years old on 1 October 2015.  He is not yet in any position to express his wishes and feelings.

(b) Physical, emotional and education needs  

59. At present, C’s physical needs are being taken care of by the parties separately without much communication.  C’s emotional and education needs are not in issue.  In fact, both parties have separately enrolled and paid for different nurseries for C.

(c) Effect of change on the child in his circumstances

60. Since his birth, C has been taken care of mainly by the paternal grandmother Madam Fan until present.  Any change in the care and control of C at this stage would have a significant effect and is not in C’s best interest so to do.

(d) Age, sex, background etc of the child which is relevant

61. The boy will be turning to the age of 2 on 1 October 2015.  He will be attending nursery the day following his birthday.

(e) Any harm the child has suffered or at risk of suffering

62. On the undisputed facts and evidence, C has had the unfortunate event of having to stay in hospital when he was just over 1 year old in 2014 for observation of a suspected child abuse case.  The parents should try to build up trust and maintain harmonious relationship and contact between themselves in order to minimise C’s risk of suffering in future.

(f) Capability of parents and other persons for meeting C’s needs

63. As I said earlier, both parties are “first time parents” requiring advice and physical support from their family members. Their capabilities to take care of C can only be said to be at the learning stage. 

64. On the facts and evidence, the paternal grandmother Madam Fan is the most appropriate person to meet C’s needs.  This is confirmed by Mr. Lo in his SIRs.

(g)  Powers available to the Court  

65. These are contained in the relevant statutory provisions.

Case Law

66. Mother’s Counsel referred to cases of H v. H [1969] 1 WLR 208, Re W (a minor) (residence order) [1992] 2 FLR 332,  Wong Yip Yuk Ping v. Wong Sze Sang Michael, CACV No.116/1985, R v.Y, CACV No.193/2010, Re S (a minor) (custody) [1991] 2 FLR 388, L v. C (CACV No.333/2007); Naziya Aslam v. Rafaqat (CACV No.144/2003) and WSM v. FSY (CACV No.352/2004) in her List of Authorities and Closing Submissions.  Father’s solicitor referred to the case of 何及陳, FCMC No.12780/2008.

67. It has been said in numerous cases that social welfare officer is the ears and eyes of the Court.  Recommendations made to the court in social welfare reports are not binding and are generally considered to be persuasive (see YLS v. TC, FCMC No.8396/2007 and NKM nee SKM v. NGR, FCMC No.14562/2007).   It is an exercise of discretion by the trial judge, after considering all the evidence readily available and relevant, including any social welfare reports, to decide where the best interests of the child in question should lie.

68. Children’s matters are always fact sensitive and each case must depend upon its own facts.  In the present case, C has been adapted to an environment where the paternal grandmother has been the main carer and taking good care of him since his birth. 

69. The cited case of H v. H (supra) concerned a child of 3 years and 9 months old whose custody was granted to the mother upon affidavit evidence without the Judge seeing the parents.  This is different from the present case where this Court has had the chance of judging the character and appearance of the respective parents.  Allowing the father’s appeal, Danckwerts LJ had said :-

“In addition, it seems to me that the Judge dealt with the case in a rather unfortunate manner; he apparently read the affidavits to himself and then counsel addressed him with arguments about the order he should make. He never saw either of the parents at all; he decided the case simply upon the written evidence contained in the affidavits – although of course there was also the report of a welfare officer.

  To me that seems to be a very unfortunate course to have taken.  It was impossible to judge the character of the mother, or the father for that matter, as the judge never saw either of those parties personally. In a case of this sort the character and the appearance of the respective parents is very often a decisive matter.”

70. The cited case of Re W (supra) concerned a 4-week old baby who was collected by the father from hospital 2 days after birth.  The mother signed a parental responsibility agreement giving parental rights to the father.  The mother repented and applied for an interim ex parte residence order.  The court ordered status quo to remain with the father pending court welfare officer’s report.  Allowing the mother’s appeal, it was held –

“(1) Although there was no presumption of law that a child of any given age was better off with one parent or the other, and although the only legal principle involved was that the welfare of the child was the paramount consideration, no court could be ignorant of what would be the natural position if other things were equal. There was a rebuttable presumption of fact that a baby’s best interests were served by being with its mother, although the situation might be different with older children.

(2) The decision as to the child’s placement should not have been left until the final hearing.  The pressure on the courts and welfare   services might not have enabled the case to have been heard for a further 3 months.  The party that had the child in the meantime had an in-built advantage because when the case returned before the court the status quo assumed an even greater importance than originally (my emphasis). In those circumstances, the judge should have then considered which was likely to be better for the  child’s welfare.  The child in question was less than 4 weeks old and her welfare required that for the time being she should be with her mother.

(3)Although there was a well-established principle that when  inquiries were being made in order to decide what were the best arrangements for a child the status quo should not be disturbed, it was not really possible to establish a status quo within a period of 3 weeks at the beginning of the child’s life.”

71. The case of Re W is readily distinguishable from the facts of the present case for various reasons.  First, the appellate court there was facing an appeal from an interim ex parte residence order.  Secondly, the child in question is only a baby less than 4 weeks old.  Thirdly, it was only a rebuttable presumption of fact that a baby’s best interests were served by being with its mother, the situation might be different with older children.  Fourthly, the status quo which was ordered to be maintained was at the time when court welfare officer’s report had yet to be obtained. 

72. The cited case of Wong Yip Yuk Ping (supra) does not assist the Mother’s case.  This is a case where the Court of Appeal found no basis to interfere with the trial judge’s discretion exercised upon evidence he so found or that the trial judge went wrong in his decision.

73. The case of R v. Y (supra) is well known and repeatedly cited whenever the importance of the mother in the life of a young child is involved.  The words of Hon Rogers VP at paragraph 10 of the Judgment are recited by Mother’s Counsel in her Opening Submissions :-

“10. This court was reminded of a large number of decisions which have stressed the importance of the mother in the life of a young child. In this respect I would simply refer to the case of Brixey v. Lynas [1996] 2 FLR 499. It is unnecessary to cite from the speech of Lord Jauncey; it is sufficient to say that what he said there was clearly based on practical experience and the realities of life and is not a matter of prejudice or discrimination.”

74. The trial judge in the R v. Y case had found the respondent was a loving mother.  Whilst excluding the mother from having custody, care and control, the learned Judge did order very limited access as well as staying access at alternate weekends (see paragraph 11 of the appellate court Judgment). 

75. Hon Rogers VP at paragraphs 14 to 16 of the Judgment said :-

“14. There is no doubt that AK is clearly very attached to her mother. Every indication from all the witnesses is that that is so. AK herself has said that she did not want to be separated from her mother. The judge appears not to have considered the importance of the mother and child relationship both as a general matter and specifically in relation to this case. The applicant could not bring himself to say that the respondent was a bad mother. All he could say was that there could be improvement,

but, everybody can always improve.

15. Given all these factors.  It would be clearly wrong to remove the children from the mother’s care and control unless there were grave reasons to do so.  Even then, careful consideration would have to be given to what alternative arrangements would be in place should the   mother be displaced.

16. In the present case the applicant is clearly not in a position to give full-time care to the children.  His working hours have already been referred to.  They leave little, if any, time during a week for him to see the children.  The judge’s request that he should try to use its best endeavours to be home by 6 pm three times a week is clearly something that would be difficult for him, given his own evidence as to the necessity to entertain clients at night. The   conclusion must be that, even if he were at home by 6 pm, that would not necessarily mean that he would remain  home for the rest of the evening.”

76. The facts of the present case differ from the R v. Y case in a number of aspects.  First, the child in the case is old enough to express herself whereas the child C in this case is at the age of 2 and not yet in any position to express any attachment.  However, the degree of intimacy or attachment of C with the Father and paternal grandmother was observed by the social worker and reported at paragraph 17 of the 2^nd SIR as follows :-

“17. C 主動邀請余先生及余先生的父母玩拋球遊戲時, 而一同歡笑或歡呼, C 高興時不時主動和余先生或祖父母擁抱。余先生的母親亦熟知 C 的表達方式，她看到 C 簡單動作，已知悉他因各人正談論他的生活情況而感覺尷尬。”

Furthermore, the paternal grandmother’s uncontroverted evidence that the Mother at present still has to use toys to lure C for pick up in order to distract C from calling the Father suggests the degree of intimacy or attachment between the Mother and C requires time to improve.  Secondly, there is clear evidence from the Father of his availability to take care of C after work which evidence had also not been rebutted or somehow undermined by the Mother’s Counsel. 

77. The cited case of Re S (supra) reinstates the law in the clearest and explicit terms.  The case concerned a girl aged 2 who was left behind by the mother who had walked away from the father after an assault.  Contrary to the recommendation made in the court welfare officer’s report, the court made a custody order in favour of the father, with access to the mother.  Despite the order, the mother retained the child after an access.  The court allowed the mother’s appeal and reversed the custody order made earlier in favour of the father.  The father then appealed.  Allowing the father’s appeal, it was held :-

“The child’s welfare was the first and paramount consideration. There was no presumption that one parent should be preferred to another parent for the purpose of looking after a child at a particular age. It was likely that a young child, particularly a little girl, would be expected to be with her mother, but that was subject to the overriding factor that the child’s welfare was the paramount consideration. It was natural for young children to be with mothers, but where there was a dispute, it was a consideration rather than a presumption (my emphasis)……….”

78. Since full consideration had been given to all the evidence and regard having been made to C’s best interests as first and paramount, the case of Re S (supra) does not advance the Mother’s case any further.

79. The decision of L v. C (supra) has been noted; in particular, paragraph 20 thereof :-

“20. What seems to me to have been overlooked in this case was the importance of one of the natural parents being the primary carer of the child. In this case it is quite clear that, albeit both parents work and have similar working patterns, that if the mother were to be given custody she would be the primary carer whereas if the father were given custody the paternal aunt would fulfil that role. Without in any way suggesting that the paternal aunt does not devote full care and attention to the child, the importance of the natural parent being the primary carer must not been lost sight of. Coupled with that if the

parent proposed to be the primary carer is the mother, this too, is highly significant because of the natural role of the mother in the rearing of very young children.  In this respect I would add that the judge does not appear to have considered the role of the mother in a child’s life in comparison to that of a paternal aunt, however devoted she may be.”

80. I have reminded myself the natural role of mother in the rearing of young children.  In the present case, I have also considered the role of the Mother in comparison to Madam Fan (the paternal grandmother) and reminded myself not to have lost sight of the words of Hon Rogers VP in L v. C (supra) when determining the care and control of C. 

81. The best interests of the child are always the first and paramount consideration (as per Re S, supra).  Taking into account all the factors which I have found on the parties’ and witnesses’ evidence, Mr. Lo’s evidence which is persuasive and not determinative and the status quo, I believe the balance tips in favour of the Father.  I find it is in C’s best interests for the paternal grandmother Madam Fan to continue assisting the Father who will be given the care and control of the child.

82. The decisions in Naziya Aslam and WSM v. FSY (supra), as to the status of recommendation of social welfare officer, have been noted.  Suffice to say is that the balance tips in favour of the Father is based upon the best interests of C and not the recommendation of Mr. Lo.  In fact, Mr. Lo’s recommendation as to access is not accepted by this Court.

The question of Access

83. I have found the Father to be given the day to day care and control of C who will be attending nursery later this week, the question which follows is what kind of access should be arranged for the Mother ? 

84. Given the age of C (just about 2 years old) and the parties’ locality, it is too harsh for C to have to go back and forth between two ends of Kowloon Island (namely, Lai Chi Kok and Lam Tin) within school days (usually Mondays to Fridays) merely to accommodate the Mother’s work schedule. Child’s best interests should never give way to parents’ convenience or preference.

85. Also given the fact that the Mother’s schedule is more flexible during weekdays, I believe she would be able to have access after the child’s school hours.  I also believe C will be in half day nursery at the beginning of the school term.

86. Subject to the school hours of C, I will grant the Mother weekday access to the child from 3 p.m. to 6 p.m. every Tuesday and Thursday.  There will be staying access once a week from 3 p.m. on Saturday to 6 p.m. on Sunday.

87. The Mother will also be given 50% of the long school holidays (that is, Summer Vacation, Chinese New Year, Christmas and Easter) which will include the in-between weekday and weekend access.

Other matters

88. To facilitate the parties’ to build up mutual trust and confidence with each other, I direct that both parties should attend co-parenting counselling services. 

89. A progress report by the social welfare officer be arranged and produced after 12 months from the date of this Judgment.

Costs

90. This is a children matter.  I decided the usual costs order of no order as to costs (including any costs reserved) is fair and reasonable.  Since both parties are legally aided, each party’s own costs be taxed in accordance with Legal Aid Regulations.

Orders

91. I now grant the following Orders :-

(a) The Respondent (Father) do have the care and control of the child C (with removal restrictions);

(b)The Petitioner (Mother) do have defined access (subject to   C’s school hours) as follows –

(i) weekday access from 3 p.m. to 6 p.m. every Tuesday and Thursday;

(ii) weekend staying access from 3 p.m. every Saturday to 6 p.m. on Sunday.

(c) The Petitioner (Mother) do have 50% of the long school   holidays  (that is, Summer Vacation, Chinese New Year, Christmas and Easter) which will include the in-between  weekday and weekend access.

(d) There be no Order as to costs of this matter and any costs   reserved;

(e) Both parties’ own costs be taxed in accordance with Legal   Aid Regulations;

(f) Both parties do attend co-parenting counselling services;

(g) A progress report be arranged and produced to the Court    after 12 months.

92. This is a costs order nisi which will become absolute unless any party applies to vary it within 14 days from today.