C v. S

HCMP 929/2017

[2020] HKCFI 937

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 929 OF 2017

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D E C I S I O N
(Leave to Adduce Expert Report and Retrospective Leave for Disclosure of Documents)

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Introduction

1.  The detailed background of these wardship proceedings has been set out in the numerous published judgments/decisions of the Family Court, this Court and the Court of Appeal.  I shall not repeat the same.  In this decision, I shall adopt the same abbreviations in previous judgments and decisions of this Court, unless otherwise indicated.

2.  The trial of Father’s application for sole custody, care and control of N and Mother’s application for de-warding N has been scheduled on 19 March 2019 for 14 days commencing from 20 October 2020 to 9 November 2020 (“Trial”) and the final and 6^th Pre-Trial Review has been fixed on 15 June 2020 (“PTR”).  An updated social welfare report is to be submitted on or before 5 June 2020 and the updated OS Report to be submitted on or before 20 August 2020[1].

3.  As seen later in this decision, Father’s application for custody, care and control of N in the originating summons issued herein is in effect an application to vary the order made on 5 October 2012 by the then DDJ Own (“Judge”) of the Family Court granting Mother sole custody, care and control of N.

4.  Presently before this Court are two summonses taken out by the Father, namely:

(i)     Summons issued on 15 March 2019 for, amongst other things, leave to adduce a report from Dr Wong Chung Kwong (“Dr Wong”) dated 11 March 2019 attached (“Expert Summons”);

(ii)     Summons issued on 17 December 2019 for retrospective leave for Father to disclose documents in these proceedings and the FCMC 67/2010 (“Family Proceedings”) and to take N to see Dr Wong (“Retrospective Leave Summons”).

5.  As seen later in this decision, the report which the Father now seeks to adduce is in fact the 2^nd report of Dr Wong (“2^nd Report”).

6.  The Expert Summons was issued over a year ago but the substantive argument was only fixed for a hearing before this Court on 3 December 2019 (“1^st Hearing”).  Counsel Mr Richard Todd and Ms Athena Wong appeared for the Father at the 1^st Hearing and Mr Kevin Li appeared for the Mother.  The Mother opposed the application and in particular, she had raised a complaint that as these are wardship proceedings, the Father should not have disclosed any documents in these proceedings to Dr Wong in the first place and/or to take N to see Dr Wong, without her consent and without leave of this Court.

7.  In light of Mother’s complaint, this Court referred Mr Todd and Ms Wong to paragraph 5(1) of the Judicial Proceedings (Regulation of Reports) Ordinance, Cap 287 which states as follows:

“5(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say –

(a) where the proceedings relate to the wardship or adoption of an infant or wholly or mainly to the guardianship, custody, maintenance or upbringing of an infant, or rights of access to an infant;

(ab)     …”

8.  As the Father was clearly already in contempt of court under the above provision, and possibly even his solicitors Messrs Chan & Chan (since instructions appeared to be given to Dr Wong through his solicitors[2]), this Court declined to hear further from the Father until he has sought retrospective leave from this Court.  The Expert Summons was then adjourned upon the Father’s undertaking to file within 14 days a summons seeking retrospective leave and further directions were given by this Court in relation to the filing evidence.  The Court further directed OS to attend the next hearing.

9.  Pursuant to his undertaking, the Father issued the Retrospective Leave Summons on 17 December 2019.

10.  At the hearing on 6 May 2020 (“2^nd Hearing”), Father was represented by Senior Counsel Mr Paul Shieh and Counsel Ms Athena Wong, and Mother was represented by Solicitor Mr Karl Wong.  Mr Jason Chan appeared for the Official Solicitor.

The Retrospective Leave Summons

11.  Mother had drawn this Court’s attention to the fact that this was not the first time that Father had attempted to adduce expert reports which were prepared without first seeking leave from the Court. 

12.  As pointed out on behalf of the Mother, paragraph 21 under Part K on Expert Evidence in PD 15.12 provides as follows :

“21. In Matrimonial Proceedings / Family Proceedings relating to children, which are held in chambers and not open to public,

(1) the Court’s permission is required to instruct an expert. Such proceedings are confidential and, in the absence of the Court’s permission, disclosure of information and documents relating to such proceedings risks contravening the law of contempt of Court or statutory provisions protecting this confidentiality.

(2) Before permission is obtained from the Court to instruct an expert, it will be necessary for the party wishing to instruct an expert to make enquiries designed so as to provide the Court with information about that expert which will enable the Court to decide whether or not to give permission.

(3) Such preliminary enquiries, and the disclosure of anonymised information about the case which is a necessary part of such enquiries, will not require the Court’s permission and will not amount to any contempt of Court.

22.     In Matrimonial Proceedings (except as provided in rule 121 of the MCR) and in Family Proceedings, no document filed or lodged in the registry, other than a decree or order made in open Court, shall be open to inspection by any person without leave of the Court, and no copy of any such document, or of an extract from any such document, shall be taken by, or issued to, any person without such leave.  Thus, permission should first be sought from the Court before any copies of documents are provided to any expert to be instructed.”

13.  Although PD 15.12 does not apply to wardship proceedings (see paragraph 5 thereof), it clearly applies to the proceedings under the Guardianship of Minor Ordinance, Cap 13 issued by the Father in the Family Proceedings.

14.  The trial of the custody, care and control in the Family Proceedings took place in the Family Court over 16 days between February – July 2012 before the Judge.  At the time of the trial, N was about 3 years and 10 months old, and Father’s case at the time was that Mother was unfit as a primary care giver of N[3]. He sought custody, care and control of N, which was opposed by Mother.  As seen in the Judge’s judgment handed down on 5 October 2012 (“Custody Judgment”)[4], the Judge ultimately ordered that Mother should have sole custody, care and control of N, with general access to Father to be determined, and pending such determination, the then interim access arrangements were to continue.

15.  As set out in the Custody Judgment, the trial commenced as scheduled and on the 10^th day of the trial (29 March 2012), when Mother had been under cross examination for 5 days already, the Court was informed by Father’s then counsel that the parties had reached settlement over the matter, and the trial was then adjourned to 20 April 2012 to enable the parties to lodge a formal consent summons.  On 19 April 2012, the day before the hearing, Father changed solicitors and counsel and alleged that he agreed to the settlement under duress and undue influence by his former counsel.  Without going into further details, the trial was eventually ordered to continue on 24 July 2012.  Then, the day before, on 23 July 2012, Father attempted to file his 9^th affirmation attaching a 51 page psychiatric report from Dr Wong attaching another 40 pages of extracts from research publications, totalling 91 pages (“1^st Report”).

16.  The Judge decided not to admit Father’s new evidence including the 1^st Report and had commented that Father, with the full benefit of legal advice at all times, should not and indeed could not take the litigation procedure in his own hands and simply threw in whatever materials he thought useful to him and at any time he wanted[5].

17.  Further, in paragraph 102 of the Custody Judgment, the Judge had mentioned that the Father, who had all along being legally represented, had produced two other reports form doctors as expert evidence without complying with the procedural rules and the Judge had also set out in full Part K of PD 15.12.  The Judge in the end did not admit those reports.

18.  After the Custody Judgment was handed down in October 2012, Father had attempted to appeal, seeking leave first before the Judge which was dismissed and his application to renew his leave application before Court of Appeal was dismissed on 25 June 2013 under HCMP 178 of 2013.  Whilst the issue of general access under the terms of the Custody Judgment had yet to be determined and finalized, Father issued a summons for a variation of the custody, care and control order on 5 November 2013, 5 months after the Court of Appeal refused his application for leave to appeal (“1^st Variation Application”)[6]. 

19.  For the purpose of his 1^st Variation Application, Father had issued a summons on 4 July 2014 seeking leave of Court to file medical reports on N.

20.  Prior to the issue of the above summons, Father had earlier issued two other summonses:

(i)     a summons issued on 17 October 2013 in which he had sought leave to file medical reports in relation to N’s leg deformities problems, namely from Dr Stanley Lam dated 2 July 2013 and Dr Andrew Ip dated 8 July 2013; and

(ii)     a summons issued on 5 November 2013 in which he had again sought leave to file medical reports in relation to N’s leg deformities problems, namely the two above reports plus another report from Dr Cheung Ho Man dated 11 June 2013.

21.  In the summons issued on 4 July 2014, Father had then again sought leave to file all 3 of the above mentioned reports, ie of Dr Cheung Ho Man, Dr Stanley Lam and Dr Andrew Ip.

22.  As seen in the Judge’s decision dated 12 December 2014, in relation to the summons of 4 July 2014 (“Medical Reports Decision”)[7] all 3 reports were obtained by Father without leave in advance from the court and that he saw fit to obtain those medical reports during his access times with N without prior consent of Mother.  The Judge dismissed Father’s summons, refusing leave to Father to produce the medical reports of Dr Cheung and Dr Lam, and that as Dr Ip’s report had already been produced and considered at the joint meeting of the parties’ respective experts, the Judge said there was no question of seeking leave for that report.  In particular, the Judge stated as follows:

“[Father] should not be allowed to obtain expert evidence and then chose to produce them any time he wished or for any purpose he wanted without compliance with the requite rules and procedures The [Father’s] way of handling experts’ evidence appears to be that if the expert evidence tends in his favour then he may choose to adduce them in the proceedings by seeking retrospective leave to do so. How about if the expert evidence obtained unilaterally and without leave does not support his case? [Father] would then have the liberty to decide whether to produce such expert evidence or, if he has the means and resources to do so, obtain further expert evidence since the Court had not been involved in the obtaining of that piece of expert evidence which turns out to be not support his case, or the Court would not even know about tis existence, unless he chooses to disclose it voluntarily. Such practice is improper and unfair. It is trite that a party in litigation who obtains expert evidence without leave do so at his or her own risks. There are plainly no justifiable reasons why [Father] could have the privilege of not having to comply with the Practice Direction in terms of the obtaining of expert evidence, and , on the other hand, also enjoying the benefit of choice of disclosure only if he so wishes[8].”

23.  I cannot agree more with what was said by the Judge above.  In any event, by reason of what was said in the above Medical Reports Decision, Father should be clearly aware of the procedural rules on expert evidence and the provisions of PD 15.12.

24.  N became a ward of this Court on 20 April 2017. It is not quite clear as to when Father instructed Dr Wong to prepare his 2^nd Report.   In fact, even after the 2^nd Report, Father had continued to send documents filed in the present proceedings to Dr Wong, as seen in a letter dated 1 June 2019 from Dr Wong in which it would appear, that he was asked to respond to Mother’s 9^th affidavit dated 30 April 2019[9].

25.  In his 21^st affidavit filed in support of his Retrospective Leave Summons, Father tendered apologies to the Court and the Mother for not having first sought leave.  It was said that that the mistake was committed due to his oversight and out of his overwhelming concern about N’s wellbeing.  However, all Father said in explanation of his behaviour was that he was not “sufficiently aware of the necessity of the permission of the Court” and further “it was purely oversight on his part as to the correct procedures to follow”[10]. I find what he said rather amazing as he seemed to have completely forgotten about his own previous applications in the Family Proceedings and, in particular, what had been said by the Judge in the Medical Reports Decision, and further in particular, since commencement of these wardship proceedings, he has often been represented by two counsel, in particular for the present applications.

26.  Having said all this, although I do not accept Father’s explanations, I decide to grant retrospective leave as sought by Father and this is only because I ought to consider whether it is in the best interests of N to allow Father to adduce the 2^nd Report.  Further, Mother (who is under legal aid) in the end adopted a neutral stance and did not really oppose Father’s Retrospective Leave Summons, and OS also adopted a neutral stance.  

The 2^nd Report

Preliminary Comments

27.  According to Dr Wong, in his 2^nd Report, he followed the same objective, method and rationale as stated in Section (I) of his 1^st Report[11].  The “objective” in Section (I) of his 1^st Report was stated “to provide psychiatric opinions on the issues of care and control of [N]” and that he was to do so with the best interests of N in mind[12].  Having said he followed the same objective in his 1^st Report, Dr Wong then said in the 2^nd Report his independent professional opinions were provided focusing on two core issues (1) the well-being of N; and (2) the mental health and parental competence of Father and Mother (“Core Issues”).  

28.  Although there were medical reports and evidence that Father was/is suffering from some mental health issues, there did not seem to have been any medical report and/or evidence in relation to Mother suffering from any mental health issues in the past.  Further, all along Dr Wong was described as a specialist in “child psychiatry”, it seemed only to be in Father’s 21 affirmation filed in support of the Retrospective Leave Summons that Dr Wong’s expertise in “adult psychiatry” was mentioned.

29.  In any event, Dr Wong’s 2^nd Report seemed to cover a very wide scope including making recommendations on custody, care, control and access of N.

30.  During the 2^nd Hearing, this Court had asked what instructions were sent to Dr Wong for the preparation of the 2^nd Report, but was informed that there were no written instructions and oral instructions were sent to Dr Wong direct by Father.  However, this appears to be contrary to what Dr Wong himself had said, since his 2^nd Report was addressed to Messes Chan & Chan, Father’s solicitors, thanking them for asking him to provide his professional opinions on the case of N.  It would thus appear that Father’s instructions to Dr Wong were given through his solicitors, in which case they should be in writing.  It is not clear why such instructions were not produced.  

31.  According to Father’s 17^th affidavit, he said he sought leave to adduce the 2^nd Report on the issues of custody, care, control and access of N[13], and the purpose would seem to be a very general one.  It was only in Father’s counsel’s submissions at the 1^st Hearing that it was really made clear that Father sought to use the 2^nd Report in addressing the issue of  “parental alienation” and “to speak to [N’s] emotional and mental condition over the past years and roles of the parents”[14].

32.  In preparing both his 1^st Report and his 2^nd Report, Dr Wong did not have the opportunity to meet with Mother.  As for N, Dr Wong only interviewed her on one occasion on 15 June 2012, ie when she was about 3 years and 7 months old, prior to his 1^st Report and Dr Wong has not seen her since.  On the only occasion that Dr Wong met N on 15 June 2012, the duration was 1.5 hours during which Dr Wong first met with Father, then N by herself, and finally again with Father.  Dr Wong’s interview with N could not have been long.

33.  Dr Wong accepted that he had not interviewed Mother and had not had the opportunity of examining N again prior to preparing the 2^nd Report, but he said, having studied the documents he was provided with,  he was confident about the professional opinions that he would formulate in his report[15]. He had explained in paragraph 22 of the 2^nd Report that:

“22.    In the diagnostic exercise in medical practice (including psychiatric practice), it is common clinical experience that provided the doctor has obtained an accurate “history of the illness”, he/she can usually arrive at a diagnosis or at least a provisional diagnosis. … In forensic psychiatric practice in particular, a common case is to decide the testamentary capacity of a person who has already passed away. … Even though there is no patient to examine, provided that there is sufficient and valid clinical information, it is often not difficult to decide retrospectively with certainty or at least a high degree of probability the mental health condition of the deceased when he/she made his/her will.”

34.  Thus, according to Dr Wong, what he did was to perform a diagnostic exercise, having studied the documents.  He also said he followed 3 principles: (i) relying on direct rather than indirect information; (ii) mainly using information provided by professionals; (iii) selecting information that is pertinent to the [Core Issues][16].

Core Issue (1): Well-being of N

35.  Under the 1^st of the Core Issues, ie the “Well-being of N”, Dr Wong first of all set out at length some 20 paragraphs from his 1^st Report, namely paragraphs 121-141.  As set out earlier and as seen in the Custody Judgment, the Judge did not admit the 1^st Report.  Dr Wong had referred to the Procedural Guide for Handling Child Abuse Cases Revised 2015 published by the Social Welfare Department and he then said his opinion was that N’s well-being had been substantially affected because important aspects of her needs had not been met[17]. 

36.  He then elaborated on his views under 5 aspects, namely (1) physical aspects; (2) emotional aspects; (3) educational aspects; (4) psychiatric aspects; (5) life-long aspects.

37.  On (1) N’s physical aspects, Dr Wong referred to (i) N’s not receiving proper treatment for her orthopaedic conditions, (ii) not receiving proper attention to her “poor hygiene”[18], and (iii) frequent physical sickness and (iv) being given improper medications[19].  

38.  In fact, (i), (ii), (iv) were “old complaints” in that Father had made those complaints during the trial before the Judge and such  complaints were considered in detail by the Judge in paragraphs 81-113 of his Custody Judgment[20]. Dr Wong has however claimed that N is at present still suffering from active orthopaedic conditions and that she has not received proper attention to her “poor hygiene”. 

39.  It is not clear what evidence Dr Wong based his comments on in relation to N’s present conditions.  In so far as I can see, Dr Wong referred to matters about N’s orthopaedic condition being addressed in the Social Investigation Report dated 18 June 2014[21], over 4½ years ago.  For N’s oral hygiene or dental problems, the last dental report referred to by Dr Wong appeared to be 4 July 2013[22], over 6 years ago.

40.  Dr Wong had said N’s physiotherapy sessions in Kowloon Hospital had never been discharged but those sessions were stopped after Mother’s 2^nd and 3^rd child abuse allegations, respectively on 31 May 2015 and 24 October 2015. 

41.  Further, Dr Wong had referred to Dr Stanley Lam’s report of 2 July 2013[23] and also Dr Andrew Ip’s report of 8 July 2013[24] in his 2^nd Report.  As said earlier and set out in the Medical Reports Decision, Dr Stanley Lam’s report of 2 July 2013 had not been admitted by the Judge. Dr Andrew Ip was Father’s then expert in relation to N’s genu recurvatum and flat foot problems and there was a Joint Statement prepared between Dr Ip and Mother’s then expert and yet neither Mother’s expert report nor the Joint Statement was referred to by Dr Wong[25].  

42.  As for (iv), ie improper medication, it seems Dr Wong’s statement that Mother has continued to give inappropriate medication to N is based on a witness’s affirmation filed on 9 March 2013[26].

43.  In any event, those complaints of Father in relation to N’s orthopaedic conditions, poor oral hygiene and improper medications were investigated during the 16 day trial in 2012 and/or raised again at the time of Father’s 1^st Variation Application, but not pursued which in the end was withdrawn by Father on 8 March 2016[27].

44.  As for (iii) in relation to N’s frequent physical sickness, Dr Wong referred to N’s school report for the academic year 2017-2018 which showed she was absent for 10 days during 1^st term and 14.5 days during her 2^nd term[28].  Father said Mother told him N was sick and therefore was not able to attend access on a total of 14 days, referring to a record of his access times[29].  Dr Wong said it would seem if the two records were taken together, N had continued to be frequently “sick”.  It is however not clear how Dr Wong was taking the two records together, in particular whether Dr Wong thinks that 24.5 days of absence amount to “frequently sick” or not, and if so on what basis.

45.  The actual dates of N’s absences from school were not known, and thus it was not known whether the dates of N’s absences from school coincided with or related to those dates when she was absent during access.  In any event, without all the medical reports of N, the reasons of why she took 24.5 days of absences from school are not known.  Father did not make any application seeking N’s medical reports for her absences.  As for N’s admission to St Teresa’s Hospital from 9-10 March 2018, according to the medical report, this seemed to be related to “psychosomatic disorder”[30].

46.  As to (2) in relation to N’s emotional aspects, in paragraphs 118 and 119 of the 2^nd Report[31], Dr Wong opined that N’s crucial emotional need to have a secure father-daughter relationship has been severely interfered with and interrupted by Mother.  Dr Wong opined that N has two unsafe homes, in that N’s home with Father was rendered unsafe by Mother’s inducing rejection and fear against Father and by her showing N displeasure that N enjoys being with Father and N’s home with Mother is also unsafe because of her inducing rejection and fear and that N has been under emotional distress is also manifested in her obsessive symptom of having repetitive thoughts of killing Mother[32].

47.  However, Dr Wong did not set out clearly in his above paragraphs as to what evidence his opinions were based on.

48.  Dr Wong had referred to there being an “important” social investigation report dated 18 June 2014 by Ms Kiu Ching-ha (“Ms Kiu”) which was prepared 15 months after Mother’s 1^st Child Abuse Allegation[33]. As set out by Ms Kiu, her report was called for by the Judge was in relation to, amongst other things, Father’s 1^st Variation Application.  Dr Wong had opined that Ms Kiu was fully justified in her opinions and recommendations at that time, namely Father and Mother be granted joint custody of N and sharing the care and control and access of N.

49.  Thus, as at 18 June 2014, it seemed that were no allegations of parental alienation at that time by Father, and that he was applying for joint custody and for N to stay with him for as many days a week as possible[34]. As said earlier, he then withdrew his 1^st Variation Application.  

50.  N was first referred to the YMT Child Service by a doctor at the Student Health Service of Department of Health on 2 January 2015 due to anxiety disorder/chronic stress caused by family member[35].  Dr Wong opined that this was clearly a red flag that N was probably already suffering from an “early stage of psychiatric morbidity”.

51.  The 2^nd Child Abuse Allegation was over an incident on 30 May 2015.  Dr Wong then referred to the report of Ms Irene Cheung of YMT Child Service (“Ms Cheung”) in her clinical psychology report dated 15 June 2015[36], who concluded that at that time N was not assessed as having any psychiatric disorder and her symptoms did not reach a clinically significant level.  Although Dr Wong then referred to his opinions based on Ms Cheung, what Dr Wong did not mention was Ms Cheung’s observation of N having difficulty in finding a secure position during parental conflict and she had to take side with one of the parents when she was under his/her custody, and that the anxiety and distress originated from such difficulty and had placed her psychosocial and emotional development at risk[37].

52.  Dr Wong also referred to the observations of a social worker Ms Yim Heung Mui (“Ms Yim”) in her social investigation report dated 6 August 2015, in relation to 5 access sessions from 20 July 2015 to 28 August 2015, which showed N’s increasing rejection of Father[38].  Dr Wong had set out his opinions on Ms Yim’s report, including posing two questions, namely “why [N] should be so rejecting and fearful of Father?” and “Why should Mother induce in [N] the rejection and fear of Father?”.  To the first question, he opined the reason was because Mother had been inducing the rejection and fear, and to the second question, he himself had said, as he had not had the chance to examine Mother, he was not able to give a definitive answer, and then he went on to say that a likely explanation was Mother’s fear of losing N[39]. 

53.  However, it was clear from Ms Yim’s “Remarks” that it seemed to be a parenting issue, and that N was pulled in between the parents’ conflicts, which had caused N much stress as reflected in by the assessment of N’s clinical psychologist[40]. Thus, from Ms Yim’s remarks, although there was a big team of professionals to support the parents and N, “the most powerful one was still the parents themselves to reassure and nurture [N] that she could get the love from both parents without any worry to upset either one.”

54.  The 3^rd Child Abuse Allegation was made on 24 October 2015.  There was a social investigation report dated 24 February 2016 by Mr Cheng Cho Hong[41] (“Mr Cheng”).  Dr Wong had opined that namely (i) Mother made her 3^rd Child Abuse Allegation after the 2^nd one and very soon after Father had resumed normal access with N, which was again proven untrue, and the close proximity in time from the 2^nd Child Abuse Allegation showed that Mother’s mental condition had not improved; (ii) N’s rejection and fear of Father had obviously intensified; (iii) there was only one reason for (ii), Mother had continued to induce in N rejection and fear of Father; (iv) Father’s depression had improved; (v) N had continuously been assessed and treated by clinical psychologists at YMT Child Service, and they recommended resumption of normal access (vi) the professionals involved in the Multi Disciplinary Case Conference (“MDCC”) concluded once again that Father was a loving father and was never abusive to N.

55.  Mr Cheng had set out the recommendations of the MDCC, including the MDCC’s recommendation that (i) N’s situation had to be followed up by the clinical psychological services at the East Tseung Kwan O Social Welfare Department Family Services Centre, (ii) Father to continue to receive clinical psychological services at Kowloon Hospital and also counselling services by the hospital social worker, and (iii) Father and Mother to receive the co-parenting services provided by the Hong Kong Family Association[42].

56.  There was no recommendation by MDCC on Mother’s mental condition or that Mother was to receive any clinical psychological services.  

57.  Mother made the 4^th Child Abuse Allegation on 21 January 2017, and in an email she sent to Father on that day, she had described what N had told her[43], Dr Wong referred to what was said by Mrs Lam Yeung Kit Ching (“Mrs Lam”) in her Social Welfare Report dated 8 September 2018 (sic).  The report of Mrs Lam referred to by Dr Wong  should be the one dated 6 March 2018[44].  Dr Wong criticised Mrs Lam and amongst other things, that she had not fully fathomed the profound psychopathology in this case and that her opinions and recommendations were based on the self-serving account by Mother. 

58.  However, Mrs Lam had set out Father’s views in paragraphs 10 and 11[45]. Although Father was reported to have considered that Mother had influenced N not to see him leading to N’s manifestation of psychiatric symptoms, he did not allege any parental alienation even though he had made such allegations in his 1^st and 2^nd affirmations herein.  In fact, Father had agreed that there was some improvement in access as N had improved her attitude towards him during the recent access, and was polite to him. 

59.  Mrs Lam’s social investigation report was called for by this Court after the Father had commenced the present wardship proceedings and it was submitted on behalf of Father at that time that by reason of Father’s express concerns on N being seen by too many professionals, the Court should direct that the social worker not to interview N when preparing the report.  It was under those circumstances that the Court made that direction.

60.  Dr Wong also referred to the OS Report dated 19 March 2018 prepared by Ms Juliana MK Chan[46] (“Ms Chan”).  Dr Wong had said from what N had told Ms Chan, Mother had continued to induce in N rejection and fear of Father.  

61.  On the other hand, Ms Chan had set out her views, that N herself had provided explanations as to how she felt about Father, about the few incidents that made her dislike the Father and the reasons why her chest feel painful, and N showed resentment towards her father and was resolute that she would not give Father any chance and that she did not want to see Father[47].

62.  On (3) education aspects, Dr Wong opined that N had been absent from school much more frequently than the usual child.  There had been no statistics produced in relation to absence of an “usual child” of N’s age from school.  As seen in Mrs Lam’s report, there was no sufficient evidence that N’s absences had aroused the concerns of the school[48].  Further, for the 1^st term for the academic year 2018-2019, she was absent on only 1 day[49].

63.  Dr Wong said N wasted one year of life because she needed to repeat the P1 year and that was due to Mother’s false child abuse allegation against Father, as N missed her final examination of P1 year because she was admitted to Tseung Kwan O Hospital for nearly two weeks, consequential upon the child abuse allegation[50]. What Dr Wong was referring to appears to be Mother’s 2^nd Child Abuse Allegation on 30 May 2015, which Mother reported to the police on 31 May 2015, and as a result of which N was admitted to Tseung Kwan O Hospital[51].  Subsequently a MDCC was held on 16 June 2015 at the Tseung Kwan O Hospital. 

64.  It was not disputed that N repeated P1 in September 2015.

65.  The above was reported by the social worker Ms Yim in her social investigation report dated 6 August 2015, which was called for by the Judge in relation to resumption of Father’s access (suspended after the above 2^nd Child Abuse Allegation), and which was during the adjournment of Father’s 1^st Variation Application[52].  It was reported in that report that the members of the MDCC held on 16 June 2015 suggested that N was to be referred for child psychological assessment in view of her substantial lagging behind academically[53]. Further, Ms Yim had reported on N’s results in her then latest school report, and it showed that N did not get good grades, and that she was required to repeat P1.

66.  In fact, prior to the 2^nd Child Abuse Allegation, as seen in a report dated 28 May 2014 of Dr Gabriel Hung, a psychiatrist who was instructed and arranged by Father to see N, it would appear that N was caught in between her parents who had differing approaches to learning and upbringing which would make it more difficult to maintain steady and effective academic progress, and Dr Hung had recommended that the parents should work together and cooperate and communicate as much as possible, ensuring that homework and preparation for school was being effectively managed according to N’s abilities, potentials, amount of work needed, necessary playtime and the amount of rest required[54].

67.  In light of all the above, there was no sufficient evidence that the reason that N having to repeat P1 was caused solely by Mother’s 2^nd Child Abuse Allegation.  N repeating P1 was during the academic year 2015/2016.  For P3 during 2017-2018, save with “General English”, she had achieved above C in all her other subjects, and Mrs Lam in her report in March 2018 reported that N had maintained average school performance at school.  It would thus appear that after repeating P1, N’s school performance has been stable.

68.  On (4) on N’s psychiatric aspects, as said earlier, according to the report of Ms Cheung, as at 15 June 2015, N was not assessed as having any psychiatric disorder at that time, although N showed, amongst other things, anxiety due to dilemma of parental conflicts[55].  On 16 December 2017, N was diagnosed as suffering from “Obsessive Compulsive Disorder”, and N has since February 2018 been prescribed with psychiatric medication and required to take the medication once daily[56].

69.  Dr Wong opined that N suffers from psychiatric symptoms partly consequential upon the deprivation of her emotional needs to have a secure father-daughter relationship and partly because of the rejection and fear of Father induced in her by Mother[57].

70.  Dr Wong opined that the treatment of this disorder requires not only psychiatric medication but also psychological intervention in terms of resolving anxiety, fear and anger and enhancing equanimity and happiness and that N needs an emotionally safe home to bring about the best treatment effects for her Obsessive Compulsive Disorder.  He then concluded that if Mother’s induction of rejection and fear were to persist and aggravate, it is likely that N may develop other psychiatric disorders on top of Obsessive Compulsive Disorder.

71.  However, it is not exactly clear as to what evidence that Dr Wong’s opinion was based on in paragraphs 121 and 11 of the 2^nd Report.

72.  As for N’s “life-long aspects”, Dr Wong concluded that the “deprivation and abnormalities” N has been subject to in the 4 aspects above have significant life-long impacts on her. 

Core Issue (2): Mental health and parental competence of Father and Mother

73.  As for the mental health and parental competence of Father and Mother, Dr Wong is of the view that although Father has suffered from depression, he only had mild symptoms of depression, based on various psychiatric and/or psychological reports and Dr Wong’s mental state examination on Father on 29 January 2019[58].

74.  As for Mother’s mental health, Dr Wong first set out in his 2^nd Report paragraphs 98-120 of his 1^st Report[59] and he then said having studied all the documents that he was provided with, particularly the observations and opinions of third-party professionals, he maintained his opinion that Mother is likely to have been suffering from Obsessive Compulsive Disorder.

75.  As for Mother’s competence as a parent, Dr Wong again referred to the 4 aspects of N, namely physical, emotional, educational and psychiatric.  In relation to N’s physical aspect, Dr Wong again referred to N’s orthopaedic conditions and oral hygiene and Mother’s lack of attention of those matters.  As for emotional aspect, Dr Wong said Mother has alienated N from Father and has caused her to be deprived of a loving and secure father-daughter relationship.  In relation to the education aspect, Dr Wong again referred to N’s sick leaves, and added Mother had continued to exclude Father from school correspondence which was to exclude him from taking active part in N’s education.  As for psychiatric aspect, Dr Wong referred to Mother’s persistent alienation of N from Father.

76.  Dr Wong then came to the view that Mother has not properly satisfied N’s needs and rather she has deprived N of her needs and further referred to 4 likely reasons to explain Mother’s behaviour of physical abuse and psychological abuse of N.

Discussion

77.  To summarise, as said earlier, Dr Wong’s opinions in his 2^nd Report on N’s physical aspect of orthopaedic conditions, poor oral hygiene and being given improper medications were “old complaints” which had been investigated by the Judge during the 2012 trial and his findings have been set out in the Custody Judgment.  Further, N taking 24.5 days of sick leave has been overtaken by events, in that there was only 1 day of sick leave in the 1^st term of 2018-2019 and there has been no further evidence as to the frequency of N’s absences from school.  As for N’s emotional aspect, Dr Wong appeared to have drawn different conclusions from the various reports of the professionals and/or social workers set out earlier, and also from the report of Ms Chan who on behalf of OS represented N at the time.  As for N’s education aspects, as mentioned earlier, Dr Wong’s opinion was based mainly on N’s absences from school and her repeating P1, which again has been overtaken by events.  So far as N’s psychiatric aspects are concerned, as said earlier, Dr Wong was be of the view that N’s psychiatric symptoms were partly consequential upon the deprivation of her emotional needs to have a secure father-daughter relationship and partly because of the rejection and fear of Father induced in her by Mother.

78.  However, most of those professionals/social workers, save with the exception of Mrs Lam, had all seen and interviewed N.  Most of them had interviewed both Father and Mother, save those instructed by Father unilaterally.

79.  As set out earlier and by Dr Wong, all he did was to carry out a diagnostic exercise, and while this would have to be done in the event of the testamentary capacity of a person who had already passed away, or where there was no patient to examine, this is not the case here. Dr Wong accepted that he had not had the opportunity to examine Mother, and that if the Court sees fit, and if Mother is agreeable, Dr Wong has indicated that he will be happy to conduct psychiatric assessment on her[60].

80.  As seen during the hearings, Mother has made it quite clear and that she will not give her consent to be psychiatrically assessed by Dr Wong.

81.  If Dr Wong’s 2^nd Report were to be admitted, then Mother has indicated that she may seek leave for her to produce her own expert report, and if necessary for her expert to see N.  For each parent to have his/her own expert, and if N has to be interviewed by them, this will mean N may have to see the two further psychiatric experts, and the effect of this has to be assessed in light of N’s present psychiatric condition. 

82.  Further, if Dr Wong’s 2^nd Report were to be admitted, the Mother would no doubt challenge the basis of Dr Wong’s opinions and his conclusions.  This will in effect mean a re-visit of some of those allegations made by Father previously which had been adjudicated upon and resulted in the Custody Judgment.  This cannot be right since Father’s leave to appeal had been dismissed firstly by the Judge and later by the Court of Appeal.

83.  Also, as mentioned earlier, Dr Wong’s 1^st Report had never been admitted, nor was Dr Stanley Lam’s report, and Dr Ip was only Father’s expert and there was a Joint Statement which was not referred to.  As pointed out on behalf of Mother, by admitting Dr Wong’s 2^nd Report, it would mean all the unadmitted reports will be admitted “through the back door”.

84.  In any event, as Dr Wong’s opinions and/or conclusions drawn from some of the reports differed from those professionals and/or social workers who prepared them, and this may mean that the makers of the reports would have to be called to give evidence at the Trial, as well as Mother’s own expert, and this could seriously lengthen the Trial and/or even “derail” the Trial, which is only about 5 months away. 

85.  Even though 14 days have been set aside for the Trial, and at the time of fixing the dates on 19 March 2019, it was anticipated that there could be expert evidence as Father had filed the Expert Summons a few days before the dates for the Trial were fixed, the Father had not brought on his application expeditiously.  In Father’s 1^st and 2^nd affirmations filed in support of these wardship proceedings in April 2017, Father had already alleged alienation on the part of the Mother, going back to 2013.  There was no reason as to why he had to wait some two years before issuing the Expert Summons.  After issue, he should have applied for an urgent substantive hearing date as soon as practicable, and yet he did not do so at the hearing on 19 March 2019.  For some reasons, the substantive hearing of the Expert Summons was fixed some 8 to 9 months away.  Then, it was discovered that he had omitted to seek leave to send all the court documents to Dr Wong, and the 1^st Hearing had to be adjourned for him to file the Retrospective Leave Summons.

86.  Anyway, any possibility that the Trial could be “lengthened”, and/or “derailed” is in my view not conducive to N’s best interests.

87.  It is not disputed that N is now suffering from Obsessive Compulsive Disorder.  She has been receiving treatment from a private psychiatrist Dr Joanna Lam, as well as from the YMT Child Service.  Her treating psychiatrist at the YMT Child Service is Dr Lily Ho and her treating psychologist is Dr Winnifred Mark, and pursuant to directions given by this Court on 21 June 2019, the doctors at the YMT Child Service have been given autonomy and flexibility to formulate their own treatment plan. Mr Jason Chan, on behalf of OS informed the Court that N attended a session with Dr Ho on 19 December 2019 (there were also 10 previous sessions conducted), but sessions were disrupted by the Covid-19 pandemic, and N resumed her session with Dr Ho on 7 April 2020, and Dr Ho reported N’s current condition to be “stable”.  As for Dr Mark, she first had a session with N on 2 December 2019, and thereafter there was the disruption caused by the Covid-19 pandemic.  Dr Mark subsequently met with Father face to face and had a telephone conversation with Mother and the next appointment for N was scheduled on 13 May 2020.  Dr Mark reported that judging from her first session with N on 2 December 2019, N appeared to be “willing to talk” and “positive”.  A joint conference at YMT Child Service has also been scheduled on 2 July 2020 between Dr Ho, Dr Mark, Ms Wong, various professionals/social workers, the parents, and the OS.

88.  Although this Court has raised the possibility of appointing a single joint expert, this was met with opposition from Father’s side.  It was submitted on behalf of Father that if Mother were to appoint her own expert, he would consider agreeing Mother’s expert to assess him but I understand that this would be on the basis that Mother would agree to Dr Wong assessing her.  However, Father seemed to have great reservation about any single joint expert assessing N.

89.  Mr Chan, acting for N, has in his submissions sounded out “a cautious observation in relation to the possible ripple effect or sidetracking effect the present exercise may have on the present course of treatment of N… and that parties should be guarded against any risk of disruption of the ongoing development in the treatment course”[61].

90.  During the 1^st Hearing, I have raised a query with Mr Todd that whether any expert assistance will be helpful to the Court on the issue of parental alienation where the expert has not seen the child.  At the 2^nd Hearing, Mr Shieh SC had referred this Court to the Court of Appeal decision in LYAG v YSG, HCMP 802/2016, 14 November 2016, which was on Mr Todd’s list of authorities for the 1^st Hearing.  In that case, the Family Court Judge made directions for psychiatric evidence in relation to both parents without the psychiatrists being required to see the child.  The issue in that case was however whether the Father was fit to have unsupervised access, and as accepted by Mr Shieh, it was not a case on parental alienation. It is not clear how that case will assist Father. 

91.  Mr Shieh also referred to another case GCML v EJR FCMC 11629 of 2017, unrep, 7 March 2019, in which it was agreed that the single joint expert was to prepare a clinical psychological report on the parents, but subsequently, the mother wanted to expunge the report as she complained that the expert had made some findings of fact in his report and as a result became an “advocate” for the father.  Again, I do not see how that case is to assist Father.

92.  I do not query that there are circumstances where parents’ own mental, or indeed physical, fitness is raised as an issue, or where there are concerns about the psychological wellbeing of each of the parents, the Court may direct the parents to produce necessary evidence, where there is no objection thereto by the parents.  As I have mentioned during the 2^nd Hearing, in the present case, the Father’s allegation is that there has been parental alienation and it was in this context that during the 1^st Hearing, I said I had not come across a case when the expert did not even see the child concerned and I asked Father’s Counsel to provide relevant authorities on this issue[62]. No further authorities had been produced at the 2^nd Hearing on parental alienation.

93.  I understand that there have been many such authorities in England which should assist the Court in the right approach in cases where parental alienation has been raised.  Lord Justice Peter Jackson of the UK Court of Appeal in a recent judgment in Re S (Parental Alienation: Cult) [2020] EWCA Civ 568 has said:

“… For working purposes, the CAFCASS definition of alienation is sufficient:

‘When a child’s resistance/hostility towards one parent is not justified and is the result of psychological manipulation by the other parent’

To that may be added that the manipulation of the child by the other parent need not be malicious or even deliberate.  It is the process that matters, not the motive’[63].”

94.  Lord Justice Jackson went on to say that :

“Where a process of alienation if found to exist, there is a spectrum of severity and the remedy will depend upon an assessment of all aspects of the child’s welfare, and not merely those that concern the relationship that may be under threat …[64]”

95.  As seen in the above case, the court below refused the father’s application for a psychological assessment of the child, but granted his application for a report to be provided by the independent social worker, who saw the child and each parent[65].

96.  As said earlier, some of the evidence relied on by Dr Wong in arriving at his opinions in relation to N’s well-being were based on evidence some 4 or 5 years ago, if not more, and in particular it was after Father made his 1^st Variation Application, which he then withdrew on 8 March 2016.  The 1^st, 2^nd and 3^rd Child Abuse Allegations were respectively on 9 March 2013, 31 May 2015 and 24 October 2015, which meant they were all prior to Father withdrawing his 1^st Variation Application.  Then about a year after Fathers withdrawal of his 1^st Variation Application, on 20 April 2017, he issued the present wardship proceedings and made another application for custody, care, control and access of N.  As I have indicated, the Father’s application for custody, care, control and access of N is in effect a 2^nd variation, and the main issue should really be whether there had been any change in circumstances after his withdrawal of the 1^st Variation Application.

97.  In any event, whether there has been any parental alienation, to the extent that there should be a transfer of custody, care and control to Father, is essentially a question which this Court has to decide at the Trial, during which the Court will conduct a fact finding exercise.  The well being of N is again a matter which this Court will decide at the Trial, bearing in mind N’s best interests.

98.  Having considered all the above and the circumstances of this case, and for all the reasons set out earlier, I do not find Dr Wong’s 2^nd Report relevant, in that I do not find it helpful to this Court, and in fact, it will cause unnecessary delay and/or may derail the Trial, and in my view, this cannot be in the best interests of N.

Order

99.  In light of all said above, I dismiss the Expert Summons. 

100.  I order costs of and incidental to the two summonses be paid by Father, to be summarily assessed and to be paid by Father within 14 days of summary assessment.  Mother and Official Solicitor are to submit a statement of costs within 14 days, and Father his list of objections within 14 days thereafter.  This is an order nisi which shall be made final after 21 days.