1982, M.P. 1436

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HEADNOTE

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Wardship - leave to remove wards permanently from jurisdiction - mother having care and control, remarried and again pregnant wishing to emigrate to U.S.A. with husband - opposed by natural father who has generous access. Welfare of wards first consideration - possible resentment against wards if refusal of leave results in family forced to remain in Hong Kong. Poel v. Poel, Nash v. Nash, Chamberlain v.De La Mare are followed. Bevan v. Bevan distinguished. Order made de-warding as practical difficulties for parents if legal custody remained with Court in Hong Kong. Bates v. Morley not followed even though children will come to Hong Kong regularly to see their father.

Since this decision a further authority seems to support the view taken. See Lonslow v. Hennig, October 1986.Family Law 303.

1982, M.P. 1436

IN THE HIGH COURT OF JUSTICE

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J U D G M E N T

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Background

1. The plaintiff and the defendant in this matter were married in August 1975. The plaintiff was a television actress already well-known and the defendant was employed in the electronics industry which was then going through a period of very rapid growth. Both their careers prospered and two children were born, Gary Wong Kwong-wang (Gary) and Ronnie Wong Kwong-yee (Ronnie). Gary was born in Hong Kong in February 1977 and Ronnie in the U.S.A. in October 1980.

2. It is clear that there were difficulties with the marriage from an early date due to several factors. The defendant had his own  electronics business in which he was heavily engaged and the plaintiff  continued with her T.V. career so far as the limitation imposed by her family permitted. There were allegationsand counter-allegations of indifference and neglect on both sides at the hearings which have so far taken place but it was not in dispute that the plaintiff formed two adulterous relationships, first of all with a T.V./movie producer and later, with a Mr. Melvin Wong (“Melvin Wong”) to whom she is now married and whose child she is expecting in January 1987.

3. The plaintiff petitioned for divorce in August 1982, which petition was defended. Following a hearing, O’Dea, D.J. granted the petition and in doing so found that the cause of the breakdown of the marriage had not been the plaintiff’s adultery but was primarily due to the lack of affection shown to her by the defendant who was pre-occupied with his business affairs.

4. Application was then made to me by the plaintiff that the children be made wards of court and that care and control of them be granted to her with the defendant having the right of access. This application was also strenuously opposed in a hearing lasting some ten days. Again allegations of indifferenceto the welfare of the children were made on both sides.

5. At the end of that hearing, I order that -

a) The children should remain wards of court until further order.

b) The plaintiff should have care and control of the wards.

c) The defendant was to have liberal access to the wards including overnight access on alternate weekends.

d) The defendant, by agreement, was to pay $1000 per month towards the maintenance of each ward.

e) The defendant should pay the plaintiff’s costs.

6. In the course of that judgment, I set out the background material in some detail and there is no need to do so here again.

7. The plaintiff and her husband now wish to immigrate to the United States of America and to take up residence in Sacramento, California. To that end, the plaintiff seeks orders that :

a) The wards cease to be wards of court.

b) A custody of the wards be granted to the plaintiff.

c) The plaintiff be granted leave to remove the wards permanently out of the Jurisdiction of this Court.

The evidence

8. Lengthy affidavits have been sworn by the plaintiff by Nelvin Wong and by the defendant. Each of them has also given oral evidence and has been extensively cross-examined. I also called for an up-to-date report from the director of Social Welfare and this has been provided. The evidence relates to eventswhich have taken place since my orders in 1984 and, more importantly, the prospects for the wards in the event of the orders sought being made and the consequences if they are refused.

9. The plaintiff in her affidavits has sworn that since the end of 1984, there have been difficulties over the orderswhich have been made, i.e. access by the defendant to the wards and the payment of the maintenance and costs which were ordered. These difficulties were put forward as indicating the defendant’s attitude and his lack of responsibility. The plaintiff said that since the making of the orders the life style of the wards has not changed. They go to La Salle College (“La Salle”) and are both making reasonable progress. The defendant has access to the wards on alternate weekends but she claims that he is often late in collecting them and also in bringing them home. There has been a considerable exchange of letters, both between the parties and between their solicitors and it is apparent from the tone of these letters that there is none of the residual feeling of affection which is sometimes still present between divorced parents and which can make such a difference in relationships with the children. Responsibility for that probably rested on both sides, but I am satisfied that the defendant still bitterly resents Mr. Melvin Wong’s presence and his inevitable taking over of a father role in respect of the wards. That resentment is not unnaturally returned.

10. The plaintiff said that she did not accept that the defendant loves the wards very much and she believes that he is using them to exact revenge against both her and Melvin Wong. She refers to what she claimed is his neglect of their school homework when they are with him and says that he spoils them by giving them presents which they have not earned. She denies that he was involved in obtaining a place at La Salle for Gary and in particular that he used his influence with the former headmaster, Brother Henry. That allegation is confirmed by a letter from Br. Henry who denies that the defendant was a good friend of his and used his influence to obtain a school place. The plaintiff says that in fact the defendant was indifferent to the wards’ schooling and that a place was found at La Salle through the intervention of a Mr. Philip Chan, a friend of hers. That is also supported by a letter from Mr. Chan to Brother Henry.

11. The plaintiff goes on to say that she and Melvin Wong supervise the children’s homework themselves and have dispensed with the services of a tutor even though this puts an added burden on them. This was because she and Melvin Wong felt that the tutor was in effect doing the wards’ homework for them and that they were not being made to do it themselves. She says this attitude was supported by the teachers at La Salle. There were various other matters about which she complained such as that the defendant took the wards to what she called a public massage establishment which it transpired was the  sauna in the Holiday Inn Hotel.

12. The plaintiff was cross-examined about these and other incidence which had occurred and it was suggested that her attitude to the defendant was wholly mistaken and he was indeed a very loving and caring parent. That far from him being negligent in supervising the ward’s homework on at least two occasions in April, the teacher at La Salle had found that Gary’s homework had not been done and that he had forged his mother’s signature on his assignment book. This again was supported by copies of the relevant book.

13. The plaintiff also saidinher affidavits that there had been greatdifficulty in recovering the costs ordered to be paid by the defendant and that various offers had been made and refused. She said this was because she believed that the defendant had speculated in properly, namely two flats in Shatin, and that he had bought a new Mercedes Benz car. She also complained about late payment of the monthly maintenance payment and there was considerable correspondence produced relating to these matters. It was put to  her in cross-examination, and agreed, that the flats were heavily mortgaged, that the new car was bought by trading in the old one and that at one stage the defendant’s bank accounts were “frozen” by the Inland Revenue Department because of the unsatisfied demand for property tax. This demand was later cancelled and the accounts “unfrozened”.

14. So far as theplaintiff’s future plans were concerned, she and her husband had decided that theirfuture should be in the U.S.A. and that  they considered that now was the proper time to go so far as the wards were concerned. She had accordingly applied for an immigration visa and, as her husband was an American citizen andRonnie was born in America, the application would be granted. She said that she had not worked as an actress for over a year and would not do so in future. She would become a fulltime housewife to look after the two wards and the child who is to be born in 1987. The Proposal was that they would live in a house in Sacramento which is owned by Melvin Wong’s mother, a lady of independent means. The house had a garden and had ample accommodation for them. The wards would attend the Hollywood ParkElementary School where places were available. While clearly the family environment would be very different in Sacramento, it was her husband’s birth place and there was a large Chinese/American community there and the wards would not feel at all out of place. They had already been to Sacramento for a holiday and apparently had enjoyed it very much. Melvin Wong had a large number of relatives in the area, many of whom were in the professions and had young families. In addition to attending the Hollywood Park Elementary School, the wards would also attend Chinese language lessons at the Confucius Church in the China Town area of Sacramento. She said that she and her husband expected to take assets of some $HK 1,500,000 with them and that he would be in full time employment with an expected income of some US$40,000 per year.

15. The plaintiff said that of her four brothers and sisters,three live in New York and only her sister Susanna lives in Hong Kong. Susanna has also got plans to move to the U.S.A. and has applied for a visa. Her mother lives in New York but intended to come and stay with them in Sacramento twice a year if they move to that city.

16. Melvin Wong said that his family is also all in the U.S.A. and he was taken there when he was 5 years old. He is a film director and actor and Sacramento was conveniently located in relation to the film industry where he will be working. He had been offered employment by D & B Films Co. Ltd. as an associate producer in charge of developing film projects in the U.S.A. Two films were planned but even in the event of his plans in the film industry not working out, he was a qualified pharmacist and would he able to earn a living in that profession. He said the wards had stayed with his mother in the house in Sacramento and they get on very well together. In addition he had numerous relations and friends living close by who were in the same age group as the plaintiff and himself and they had children with whom the wards had enjoyed playing while visiting. He considered that the move at this stage in their lives would give them time to settle in and adjust to live in a non-asian country and to the change in language.

17. The defendant opposed the application primarily on the grounds that if it was granted and the wards went to live in the United States of America, inevitably they would lose contact with him and he considered that this would be not to their advantage. He said the wards were emotionally attracted to him and like to talk to him about personal and academic matters. He considered that his support, encouragement and affection would be important to them when they are entering their formative years. He said that they were also emotionally attached to Mrs. Susanna Chan, the plaintiff’s younger sister, who lives very closeto his home. The wards like to talk to Susanna whom they trusted and loved. He said that they had experienced a great deal of change in the last two or three years and that he considered that any further disruption was to be avoided. He suggested that there had been problems with access in Hong Kong and that with the wards living in the U.S.A. this would naturally be even more difficult. He said there had beenno indication from the plaintiff as to who should bear the costs of the wards visiting Hong Kong to see him. He denied that he had been indifferent to the welfare of the wards before the breakdown of the marriage and said that it was through his efforts that he had obtained a place in La Salle through a good friend, Brother Henry. While herealised that the workload in La Salle was very heavy, as was inevitable in Hong Kong, the wards were coping with this and that La Salle being an extremely good school, there was no reason why they should be taken away from it.

18. In the previous hearing, the defendant had said that he intended to marry Miss Anita Yung who has been living with him for some Lime. This in fact had not happened and the defendant said that this was due to the fact that he did not wish to cause the wards any further confusion and disturbance by marrying Miss Yung. He denied that during periods of access he had failed to properly supervise the wards’ homework and said that indeed the facts were to the contrary. He had made sure that they did their homework and indeed had complained to the plaintiff because of her neglect.

19. The defendant said that Melvin Wong had tried to exclude him from the wards and said that when he telephoned and asked to speak to one of them, if Melvin Wong answered the phone, he put it down and simply cut him off. This allegation was supported by a tape recording of a conversation which occurred on Sunday, the 2nd of November.

20. The defendant said he was very doubtful indeed of the educational system in the United States of America and referred to problems of violence, high drop-out rate and poor academic performance. He said that while the plaintiff had at one stage during their marriage tried to persuade him to immigrate to the U.S.A., he had rejected that suggestion because his career was based in Hong Kong and he said he would like his children to be brought up in a predominently Chinese culture and social environment.

21. As regards the payment of maintenance and costs, he said that there had been difficulties which he admitted were sometimes caused by his forgetting to make payments. However, he said that he had done his best to pay the very heavy costs which had been incurred and that this now had been achieved. He said that he had tried to pay maintenance by means of a banker’s order direct into the plaintiff’s  bank account, but that she had refused to give him the number of her hank account so that this could be done. He said that the freezing of his bank accounts had been done by the Inland Revenue Department entirely on a false basis and that in fact he had never received the  demand for payment on which that action had been based.

22. All parties were cross-examined on the evidence at considerable length. The plaintiff said that she considered that the wards were under very considerable pressure at La Salle and that it would be in their interest to go to the school in America were there would not be the same degree of pressure. She said that the teachers and superintendent at La Salle agreed that the pressure was excessive but that, in the fiercely competitive atmosphere of Hong Kong, it was inevitable. She said that while she had no detail knowledge of the curriculum at the Hollywood Park Elementary School, it had a good reputation. She pointed out that only some 60% of the children from the La Salle Elementary School were offered places in the secondary department. Gary would have to take an examination and there was by no means any guarantee that he would pass. She emphasised that while she and her husband had planned to immigrate for some time and were very anxious to do so, she would not leave Hong Kong without the wards and that if the application was not successful, she and her husband would remain with them in Hong Kong. She said that her attitude towards the payment of costs and maintenance by the defendant was because she believed he still was a man of property and had apparently been able to purchase a new luxury motorcar.

23. It was pointed out to the plaintiff that the Social Welfare Officer had apparently told the wards that there was a possibility that the plaintiff and her husband might go to the U.S.A. leaving the wards behind. She said that she had not told them that and it was untrue. She agreed that it would be in the interest of the wards that they should maintain contact with their father and that she would have no objection to the defendant coming to the U.S.A. and the children coming to Hong Kong for reasonable periods. She thought this should be during the summer as the other school holidays were likely to be too short, especially for them to travel to Hong Kong.

24. Melvin Wong was cross-examined concerning allegation that when the defendant rang on the 2nd November and asked to speak to Ronnie, he had deliberately put the phone down and that when he had subsequently spoken to Ronnie, had complained to him that Melvin Wong had deliberately hang up on him. However, when a tape recording of that telephone conversation was played, he withdraw that allegation but then did make the suggestion that perhaps the tape had been “dubbed”. He though the defendant was the sort of person who would do that.

25. Mr. Melvin Wong emphasised that the job he had been offered in the  U.S.A. was a genuine job, that he had the relevant experience to be a producer of films in the U.S.A. and that the firm had signed Mr. Brandon Lee, the son of the famous Kung-fu actor Bruce Lee, to play the lead in a film. He said that they were looking to the Japanese market in particular and the budget for the film would be over 10 million dollars. He said that in his estimate of US$40,000 per year annual income, he included some extra he would get as an actor but that he did not normally like to both act and produce.

26. It was put to him that he had been very vindictive towards the defendant in particular by writing to the defendant’s employees in July 1985 regarding the non-payment of maintenance. It was put to him that he must have realised that this would put the defendant’s job in jeopardy and that indeed as a consequence he had eventually resigned. He denied that that was his intention. He said he had written the letter because he considered the defendant was being less than responsible over the payment of the money.

27. The defendant said that he had recorded the phone call on the 2nd November because it was his usual practice to ring the wards shortly after he had returned them from an access weekend. He said he had not recorded previous phone calls but had done so on this occasion as he had referred to the problems in his evidence. He said that the wards had told him that Melvin Wong did not help them with their homework and that only their mother did so. He disagreed with the suggestion that he did not make sure they did their homework on access weekends and said he helped both wards with their assignments.

28. He said that he could afford the airfares for the children to visit him in Hong Kong if they should go to America and said that it was preferable that they came to Hong Kong rather than he go to the U.S.A. He would be able to see them here in a home environment. He said he thought that if they came to Hong Kong for two months in the summer plus a shorter break at Christmas or Easter, that would be reasonable. That he agreed would mean two-thirdths of the summer vacation plus a large part of either Christmas or Easter.

29. He said that at the moment he was a consultant to the Fanfair Group and also another company called Tamesis. He had no firm contract with either of them but could do his consultancy work at home and had no set time-table.

30. He said that when he received the letter from the plaintiff’s solicitors on the 23rd July regarding their plan to immigrate to the  U.S.A., he was shocked. However, he did not reply until 20th September which was because he thought he should consider the matter very thoroughly. He wished to see “how the children would react” and said that they had told him they did not want to have another change. He said he did not accept the invitation in the plaintiff’s solicitor’s letter to seek further information from the plaintiff regarding the proposed move to America.

31. He said that as a result of the letter written by Melvin Wong to his employers, he had been transferred from the job that he was in, which was concerned with highly confidential business dealings, and was given a position in the warehousing department in which he had no experience and which he did not like. He regarded his promotion prospects from them on as dim and eventually he resigned from the company.

32. He said that he did not know if it was in the best interest of the children for them to remain permanently in Hong Kong but he said they had received two blows and should remain here untilolder. He thought that meant until Ronnie was at least in Form III and Cary was in Form VI, i.e. eight to nine years time. He said that he intended to remain in Hong Kong for the time being but had no long-term plans.

33. Finally the defendant said that he had been annoyed by newspaper articles appearing which features the wards and one was taken in the context of a fan-club meeting. However, he agreed that in fact this was already before the court at the previous hearing. There were a considerable number of letters produced relating to various newspaper articles which apparently referred to the wards.I was informed that translations were available but I consider that this was a matter of little consequence in the decision which I would have to make.

34. The new report supplied by the Director of Social WeIfare was prepared by Miss Frances Law who was not the same welfare officer who had originally reported in 1984. This was, as usual, a full report which said that the social welfare officer had interviewed both parents and the wards. She said the wards were aware of her visit as the defendant had informed them about it. That was unfortunate. Furthermore, apparently she told Gary that if he stayed on in Hong Kong he would not be with his mother and he then said “he did not know what to do”. This was of course incorrect in that the plaintiff has made it clear that under no circumstances would she leave Hone Kong unless she could take both children with her. The social welfare officer said that both children wished that the present condition would not be changed.

35. Miss Law said that the children quite clearly were attached to both parents and vice versa. She found it very difficult to make her recommendation and said both children voiced their preference to stay in Hong Kong but they did not want to live apart from their mother. However, she came to the view that it was in their interest to migrate to the U.S.A. with the plaintiff although it appeared to be against the wishes of the children. She also, however, recommended that if the wards did go to the U.S.A., the travelling expenses for them to return to Hong Kong to visit their father should be shared by both sides. Neither party wished to cross-examine Miss Law.

36. There were other matters which I consider to be very peripheral to the issue such as a dog and a cat which Mr. Melvin Wong had at the old home. He said that he had found the dog to be too lively for a small flat and had finally given him away. Not unnaturally, this had upset the children and they had complained to their father. I accept Mr. Melvin Wong’s evidence on that incident.

37. At my request both wards were brought to my Chambers so that I could speak to them in the absence of either parent. Ronnie was not prepared to be so interviewed and Gary was very reluctant but I did see him for a few minutes. Clearly he wished that his parents could be re-­united but the main purpose was to see if he was opposed to going to the U.S.A. He was vague about his holiday there but clearly quite enjoyed it and certainly did not seem to have any strong feels against going to live in the U.S.A.

Finding of Facts

38. I am satisfied from the evidence which had been called that both the plaintiff and the defendant are genuinely very fond of the wards. I am however, also satisfied that the conclusions I came to in 1984 regarding their general attitude remain correct today. The plaintiff is still a strong personality and is undoubtedly possessive so far as the children are concerned. I think, she is however, perfectly genuinely in her belief that the defendant is not himself interested in the future welfare of the wards but is still trying to exact revenge for what he regards as her outrageous conduct towards him. I have no doubt that view colours her attitude. I have also no doubt whatever that she does now intend to occupy herself fully in looking after the wards and the new baby and that she genuinely feels that this best can be done in the U.S.A.

39. I am also satisfied that Melvin Wong’s prospects in the U.S.A. are good and probably considerably better than they are in Hong Kong. I am satisfied that the arrangements that he has made for where the plaintiff, himself and the wards would live are satisfactory, both as regards living environment and education. I am satisfied that the job offer he has received is a genuine one and there is no reason to doubt that he will be receiving a substantial income and that, together with the assets they will take to the U.S.A., there will be ample funds to ensure that the wards material welfare is well looked after. Melvin Wong is also a strong personality and I have little doubt, exercises considerably stronger discipline over the wards than does their father. However, I an satisfied that he is a fit and proper person to have the day-to-day control of the household in which the wards will grow up, which is inevitable whether they be Hong Kong or in the U.S.A. There were aspects of his evidence which were not satisfactory, particularly over the phone call from the defendant on the 2nd November, but I think this must be looked at in the light of the evidence which I accept that relations between him and the defendant are to say the less, hostile. I think the fundamental cause of that is undoubtedly the defendant’s resentment at the presence of Mr. Melvin Wong in the lives of his former wife and his children. I am also satisfied that the defendant while showing genuine affection for the children does tend to spoil them and that he does not exercise nearly the same degree of firm control over them that the plaintiff and Melvin Wong do. I have no doubt that the wards would be very reluctant to not have their father readily available and to see him on frequently occasions.

40. I also accept that while the children are now in very good school, they are under very considerable pressure and one can only be amazed at the amount of homework that the school system in Hong Kong apparently requires from very young children indeed. It may be that this is inevitable but it can only have the effect of very much limiting their other recreational and cultural activities.

41. I am also satisfied that in the event of this application being refused and the plaintiff and Melvin Wong remaining in Hong Kong, there would be very great resentment felt towards the defendant. Relations between him, the plaintiff and Melvin Wong are already obviously very bad and I think that they would become even worse. I an satisfied that this inevitably would have a bad effect on the wards.

42. I am also satisfied that while Melvin Wong’s prospects are good in the U.S.A. and he is undoubtedly keen to go there now, there is no absolute necessity for him to do so. At the same time, I do also find that it is inevitable that he and his wife will eventually emigrate to the. U.S.A. Indeed, the defendant himself seems to be of the view that that must happen. The question is whether it should be done now or whether, as the defendant suggests, it should wait for some eight to nine years when the wards’ schooling is much more advanced.

43. While I accept that the defendant is very fond of the wards and does what he considers best for them there were some parts of his evidence which I found difficult to accept. He says he never received the tax demands which caused his bank accounts to be frozen. That seems most odd. I also find his explanation for not marrying Miss Anita Yeung - that it would upset the children - difficult to accept when they went to the U.S.A. to attend the marriage of their mother and Melvin Wong.

The Law

44. I have been referred to several authorities and while in matters such as this the facts of each case are inevitably unique, I have found considerable assistance from these authorities.

45. In Poel v. Poel ⁽¹⁾ the mother of a two year old child was granted custody and subsequently remarried. She was expecting a child by her second husband and that they proposed to immigrate to New Zealand where the husband had good prospects. The father saw the boy regularly each week and contributed to his maintenance. The boy was happy with both the mother and the second husband and custody arrangements were satisfactory. At first instance, an application to take the boy out of the jurisdiction was refused on the grounds that it would cut him off contact with his father, but this was overruled on appeal and it was held that, the primary consideration being the welfare of the child,         the court was satisfied that regard had to be taken of the welfare of the parent who had the custody because if he or she became unhappy, it might adversely affect the child and there should be no interference with any reasonable mode of life selected by that parent unless it was absolutely essential. At p. 1471, Winn, L.J. said in reference to the stepfather:

“It may be he wishes to go again to a climate which he has enjoyed in the past and to surroundings in an agricultural type of country which he finds pleasant and enjoyable. He has no bad motive in wishing to go and in going he must wish to take with him such things being natural, his wife and the child who was already here and the child who was coming.His right to do what he chooses with his life and to live where he choosesis in conflict, as the matter stands at this very moment, with the view of the court expressed by the judge, since that order will prevent freedom for Mr. Elson in this particular respect. If it is justified, and even moreclearly, if it is necessary for the proper protectionof the child to forbid Mr. Elson and Mrs. Elson to dowhat they want to do then of course the court must imposethat prohibition. For my part, I cannot see that there is any reason why they should be prohibited from immigrating and taking this boy with them. It is a grave thing that the boy will be deprived of the advantage which he would have had if he had been brought up in contact with his natural father of having the advice of his father from time to time in the case of need or falling back uponhim for protection and care. But save in emergency, there is no reason to fear that the arrangements which are being made for his protection support an up-bringing are in any respect, to be regarded as inadequate properlyto serve the protection of his welfare, physical or mental. The natural father can offer a perfectly good home and sofaras his relations with the boy are concerned, he isnot in the very slightest to be blamed. His conduct as a father has been implacable, there is no reason tosuppose that he is not very affectionate and responsible and fit to bring up the boy.

It is not because of any defect of his but merely forthe sake of the boy’s own welfare and future that I myself have come to the definite conclusion, notwithstandingthe very serious nature of the problem and the finally balanced considerations to which regards must be had that in particular case, the judge came to a conclusion which I am prepared to describe myself as the wrong conclusion, although he did so in judicial exercise of the discretion entrusted to him. I think his decision should be set aside and that permission should be given to take this boy to New Zealand as his mother and stepfather intend to do.”

At 1473, Sachs, L.J. said:

“In this case, it seems to me that the stepfather is making an eminently reasonable choice and is someone who has a great regard for the child, the subject of this appeal. The stepfather and the mother were prepared to make a sacrifice which seemed to me highly creditable, in other words, they were prepared not to adopt the way of life which they specially desired, if that entails the wife no longer having that custody of the child which had worked so well. To me it seems that this is the sort of sacrifice, although not to be accepted by this court, for the very reason that it may well in the long run be to the detriment of the child for the reasons which have already been stated. In those circumstances, this does seem to me one of those cases in which the court should not interfere with the way of life selected by the parent who has custody and it seems to me to that extent, the judge did not take into account that factor.”

Sir Gordon Willmer was more doubtful and was reluctant to interfere with the judicial discretion which had been exercised but he did not dissent from the judgment.

46. The dicta of Sachs L.J. in Poel v. Poel ⁽¹⁾ was cited with approval in Nash v. Nash ⁽²⁾ where a mother who had custody of a child wished to go to South Africa to take up a teaching appointment. This was opposed by the father on the grounds that the child would be exposed to racial doctrines. In upholding an order permitting the child to be taken with the mother to South Africa, the court said that that it would be very reluctant to make an order which would prevent a parent granted custody of the child following her chosen career and in the circumstances, it would be wrong for the court to debar the mother taking up an appointment. In Chamberlin v. De La Mare ⁽³⁾, the facts again were not dissimilar to the ones before me now. There were two children custody of whom was given to their mother on dissolution of the marriage. The mother remarried and shortly afterwards had another child. The stepfather was a partner in a professional firm and eventually circumstances arose which made it important for him to live in New York. The application for leave to take the children of the former marriage to the United States was opposedand initially theapplication was refused on the grounds that the children should remainthe United Kingdom and maintain contact with the father. Allowing the appeal, the court of appeal again emphasised that the primary consideration was the welfare of the child and that interference by the court with the way of life reasonably chosen by the custodial parent was likely to end in frustration and bitterness which would adversely affect the children and their family background. At first instance,Balcombe, J., having referred to Poel v. Poel ⁽¹⁾ and Nash v. Nash ⁽²⁾ also had regard to the decision in Bevan v. Bevan ⁽⁴⁾, and held that while he could see the advantages for the boys of going to America, he considered that it would reduce to a minimum their contact with their natural father and that was not in their best interest. He referred to a report prepared by a psychologist saying that he considered that it would be very regrettable if their opportunity to see their father was reduced to once a year. On that basis, he refused to make an order. That decision was reversed and the Court again cited with approval the dicta of Sachs L.J in Poel v. Poel ⁽¹⁾.

47. Counsel for the defendant here seeks to distinguish that case on the grounds that in Chamberlin v. De La Mare ⁽³⁾ ,it was clear that there was a very strong reason indeed for the stepfather to return to the U.S.A. He worked in an international firm and quite clearly had little option but to do so if he was to remain with them. At 443 Ormrod L.J. said :

“We have admitted an affidavit by Mr. Harris, a senior partner to which I do not find it necessary to refer in detail. It emphasises the urgency of the stepfather’s appointment to the NewYork Office. It is obviously a matter of great importance. I do not think that it is for the court to try and assess just how important it is. Interference with reasonable decisions particularly of step-parents is something the court should undertake with considerable hesitation if the children are to continue to live with their step-parent. That seems simple common sense.”

Here, the situation is that while it is not essential tat Melvin Wong go to the United Sates of America now, I am satisfied that it is very much in his interests and that it is also inevitable that he will do so at some time in the future. In Chamberlin v. De La Mare ⁽³⁾, at 445, Griffins L.J. said :

“The welfare of young children is best served by bringing them up in a happy and secure family atmosphere. When after divorce, the parent who has custody of the children remarries, those children then join and become members of a new family. It is the happiness and security of that family on which their welfare would depend.However, painfully it may be for the other parent, that parent has got to grasp and appreciate that fact. If a stepfather, for the purposes of hiscareer, is required to live elsewhere, the natural thing would be that he would wish to take his family which now includes his step-children withhim, and if the court refuses to allow him to take the step-children with him, he is faced with thealternative ofgoing and leaving the family behindwhich is a very disruptive state of affairs and likely to be very damaging to those step-childrenor alternatively he may have to throw up his career prospects and remain in this country. If he has to do that, he will be less than human if he did not feel a sense of frustration and do what he may that may well spill over into a sense of resentment against the step-children who have so interfered with his future career prospects. If that happens, it must reflect upon the happiness and possibility even the stability of this second marriage.”

48. The defendant however, relies on the case cited by Balcombe J. in Chamberlin v. De La Mare ⁽³⁾ , that of Bevan v. Bevan ⁽⁴⁾. There the facts were similar in that again after a divorce, the natural father was granted custody of the children and the mother care and control. She married an American citizen of substantial means employed by an American Company in England. Eventually again, the stepfather had to return to the United States of America and the mother applied for leave to remove the children from the jurisdiction. One child was studying ‘0’ levels and the other had recently become a boarder at a preparatory school. At first instance, an order was made that these being English children brought up in England, it was in their interest that their education should be completed and that their welfare would best be served if they remained in England in the custody, care and control of their father who, though not as financial sound as their mother’s present husband, was a man of some means and resource. In dismissing the appeal, Scarman L.J. said at 127 :

“The welfare of the children was the first and paramount consideration and all the circumstances were to be looked at and each factor weighed against another. One factor was not to take priority against another. The home was one factor. Education in this day and age was probably one of the vital factors.”

He went on :

“If the court were confronted with a situation where a move involve the isolation of the mother from the children, different considerations would arise, but that was not the situation here where there will be liberal access. Where the children were happy in both homes, one must balance the home factor with the other factors. The children’s school friends were English, their environment was English and the mother, when she married the father, had taken British Nationality.

…………………………………………………………

The father’s home which the children knew has not changed, educationally, the children were pursuing the same course subject to some minor alterations, the girl had changed to High Schools and the boy had started at a preparatory school. A move would tear them up from their friendships and environment they had known and although it would be stimulating for them to go to America, the move would involve adjustments.”

Decision

49. Bearing always in mind that the Court must consider first and foremost the interests of the children. I am satisfied that the principles set out in Poel v. Poel ⁽¹⁾ , Nash v. Nash ⁽²⁾ and Chamberlin v. De La Mare ⁽³⁾ are applicable here and they should be allowed to go to the U.S.A. I am satisfied that while it is not essential that Melvin Wong and his wife now immigrate to the United States, it is inevitable that they will at some stage in the future do so. I am satisfied that Mr. Wong’s prospect in the U.S.A. are better than they are in Hong Kong and I am satisfied that if he does not now go there, this inevitably must cause resentment. I am also satisfied and indeed, I think the defendant does not dispute,that such a move is inevitable and it seems to me that the move and its consequence adjustments are better made now when the children are young than later when they will find those adjustments considerably moredifficult to make. Indeed it seems to me that the decision in Bevan v. Bevan ⁽⁴⁾ on which the defendant relies would lend support to the view that a move should not be made when a child’s education was well advanced. If such a move will be made, and one must have some regard to the political future of Hong Kong in that respect, it seems to meit should be made as early as possible. I am satisfied that in theUnited States of America, they will be living in a pleasant environment, their education will be well taken care of and that there is no riskof their Chinese tradition and culture being lost. They would be with a Chinese/American community predominently and I see no reason why they should not be successful in that environment as so many of their other relations quite clearly had been. This, indeed, is not easy for the natural father and one inevitably has a great deal of sympathy for him. However, again, he is not without means and there will be no question of contact with them being broken off, although naturally access will not be anything like as frequent as it is at present.

50. Regarding the question of access of the defendant sought that if the wards did go to live in America, they should come to Hong Kong twice a year in the summer and either at Christmas or Easter and that two-thirds of their holidays should be spent in Hong Kong. I think this is unreasonable. I would much prefer that the question of access be decided by agreement between the parties and I will not make any order in the mean time in the   hope that such agreement can be reached. It is however, in my view, that the summer holidays being about three months, it would be unreasonable if half of that time was to be spent in Hong Kong but so far as the other holidays are concerned, it seems to me that the length of the journey in comparison with the length of those holidays would preclude them coming to Hong Kong. I feel that on these occasions, if the father does wish to have access to the children, it should he in the United States of America and I have no doubt that arrangements could be made for him to have some time with the children there.

12th November

51. I have now heard counsel on the orders which should be made and in particular whether even if allowed to go to the United States of America, the wards should remain such; as to what access should be allowed to the defendant and whether the defendant should continue to pay maintenance. There is also the question of costs.

Wardship

52. When an order is made that children become wards of court, their custody in its widest sense is then vested in the court while care and control remains with some other person, usually one of the parents. As Cross, J. said in Re S (an infant) <1967> 1 A.E.R. 202 -

“No important step in the child’s care can be taken without the court’s consent.”

That being so, it seems to me that there may well be difficulties if a ward is removed from the jurisdiction permanently but remains a ward. There must be many important steps arising sometimes requiring a decision at very short notice which would preclude obtaining the court’s consent in time though there is authority for saying that urgent medical treatment is an important step which did not require consent of the court. However, I can envisage other steps being required and decisions having to be made when an application to this court by a person whose permanent residence is in the United States of America would be both difficult and unnecessarily costly. However, there is undoubtedly authority to the contrary. In Re O (Infants)  <1962> 2 A.E.R. 13 where a son was to be taken back to the Sudan by his father to be brought up there, wardship was continued and in Bates v. Morley⁽⁵⁾, Booth, J. said :

“..... but in his order the judge included the provision that as from the date of the boy’s departure from the jurisdiction of this court, he should cease to be a ward of court. For my part, I think that provision is inappropriate. Clearly from the evidence, it is intended that the boy shall from time to time return to this country to see his father, for those reasons he would continue to have a substantial connection with this country and it seems to me appropriate in those circumstance that the wardship be continued.”

Ormrod, L.J. agreed with that dicta. Booth, J. did not say why it was “appropriate” and there was no consideration of the practical difficulties which may well follow if a child living out of the jurisdiction remains a ward of court and the parent exercising care and control does not have legal custody. On the facts of this case, I am therefore, of the view that on their departure from Hong Kong the wards should cease to be wards of court and I so order. Custody, care and control of the wards will be vested in the plaintiff from that date.

Access

53. It was agreed that the children should come to Hong Kong every summer and the defendant would pay their fares. They should leave the United States of America one week after the school summer vacation starts and would remain in Hong Kong for half of that vacation; that would be approximately 6 weeks. So far as access during the other school holidays, namely, Christmas and Easter was concerned, there was no dispute again that access at Easter was impracticable because it is a short holiday in the United States of America. What is in dispute is access at Christmas. It was agreed that the defendant should have access on every alternate Christmas but whereas he wished this to be in Hong Kong, the plaintiff said they should be in the United States of America. Taking again all the factors into consideration, I am of the view that at the moment one trip per year to Hong Kong for the children should be sufficient and it seems to me that it would be relatively easy for the father to go to the United States of America and see the children there. I will therefore make an order that the father have access to the children on alternate Christmas holidays for a period of not less than 10 days. Such 10 days need not necessarily be continuous.

54. The only other point in regard to access was the question of access by the defendant to the wards before their departure for the United States of America. That date is by no means certain. I understand that next weekend, i.e. the 15th and 16th is not an access weekend on the present schedule but in view of their imminent departure from Hong Kong, I order that the defendant have access to the children from 1 p.m. on Saturday, the 15th November to 6 p.m. on Sunday, the 16th and that the same times on Saturday, the 22nd of November and Sunday, the 23rd of November, if they are still in Hong Kong. If by any chance, they remain after that, then the normal alternate Sundays access would continue. I specifically order that the defendant does not go to the airport on the day of the wards’ departure.

Maintenance

55. The defendant is at present paying $1,000 per month for the maintenance of each of the two children. This was based on the plaintiff's estimate of the actual costs of their maintenance and is about half of what she estimated in 1984. The defendant has assured the court that he is able to pay the airfares necessary for the children to come to Hong Kong but, in my view, on the departure of the wards to live permanently in the United States of America and bearing in mind the expenses that the defendant will have in bringing them to Hong Kong or himself going to see them in the United States of America, the provision of maintenance should cease as from the end of November.

Costs

56. The defendant took no steps in this matter when he received a letter from the plaintiff’s solicitors advising him of the plaintiff’s intention in this matter. As a consequence, it was not until the matter came on for hearing on the 1st of October that an order was made that a up-to-date social welfare report be prepared. The matter was then adjourned so that it could be done. I am satisfied that if the defendant had taken appropriate steps at an earlier stage, and I do not accept his reasons for not doing so, the costs of that hearing on the 1st October could have been avoided. I therefore make an orderfor payment of the plaintiff’s costs of the hearing on the 1st October. So far as the rest of the costs are concerned, I am satisfied that although I have not agreed with his views, the defendant was genuinein his opinion that the interest of the wards lay in them remaining in Hong Kong at any rate in the mean time. I take into account the respective financial ability of the parties and bearing in mind that the court has a wide discretion in awarding costs in cases such as this, I am of the view that there should be no award of costs.

57. There will be general liberty to apply on 24 hours notice.

58. I would finally add that as I have already said, there is little feeling of affection between the parties and that situations will probably not improve. However I do trust that they do see that this feeling is very likely to be very bad for the children who will suffer. I can only ask that first of all the defendant now accepts the inevitable which is that the children will grow up in the U.S .A. largely in his absence and he will not say or do anything before their departure which will make that transition more difficult for them. I also very much hope that the plaintiff accepts, as she said in her evidence that it is in the interest of her children to maintain contact with their father and that she places no artifical difficulties to their coming to Hong Kong and the defendant seeing them in the U.S.A. as ordered. It may be, for instance, that he can come to the U.S.A. at some time other than Christmas and if such was the case should be allowed reasonable access. These are matters on which clearly no firm order can be made but must be left to the good will of the parties in doing what is in the interest of their children.  However the plaintiff did say in evidence that she considered that the defendant should come to the U.S.A. to collect the children. I do not see any need for that.

(1) <1970> 1 W.L.R. 1469

(2) <1973 > 2 A.E.R. 704

(3) <1983> 4 Fam. Law Rep. 434

(4) <1974> 4 Fam. Law Rep. 126

(5) <1982> 3 F.L.R. 244