SKP v. Y, ITT

FCMC 17772 / 2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 17772 OF 2011

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BETWEEN

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J U D G M E N T
( Legal terminology to be used in
 relation to Child/ren’s arrangements)

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Introduction

1.  This is an interesting case that centres on the appropriate legal terminology to be used when describing a child’s arrangements in a court order. It is important because increasingly, as we look to the practical arrangements for children first as set out in the new Children’s Dispute Resolution Pilot scheme, it will become imperative that we are then able to adequately define those arrangements in a court order.

2.  In this case the parties are largely agreed about the practical arrangements for their daughter. They are at odds about the legal terminology to be used to accurately reflect those arrangements.

3.  The Petitioner father seeks an order for joint custody and shared care whereas the mother seeks a more traditional order for joint custody with care and control to herself and reasonable/generous access to the father.

Background

4.  The parties married in 2003 in Hong Kong. The mother is Chinese and she works in the private banking field, whereas the father is German and he runs his own private fitness centre. It seems that unhappy differences arose between the couple and on the father’s account the parties were more or less separated by 2008. The only child of the family E was born in March 2009. She is now just over 3 ½ years old. The parties separated in 2011 and since that time the father has been living with a new partner and the mother with her parents, E’s maternal grandparents. Both parents have a domestic helper and both continue to work in a full time capacity.

5.  By all accounts it seems that both parents are dedicated and responsible parents who are able to put E’s needs first. E has spent a significant time with both parents since birth. I consider her to be very lucky in that respect. There are also other important people in her life with whom she spends significant amounts of time.

6.  The mother’s case is that she is the primary care giver and that as such it is more appropriate for care and control to be given to her with reasonable/generous access to the father. She argues that E’s settled home base is with her. She also complains about difficulties in communication and alludes to being bullied.

7.  The father for his part maintains that the reality in this case is that E has two homes and that she moves comfortably between both. He says that both parents are primary care givers. It seems that he fears being undermined or marginalized in some way. He also wishes that his role as an equal parent to be fully recognised by the terminology used in the court order.

The present arrangements                                                            

8.  At present E spends 3 nights out of every 7 with her father and 4 nights with her mother. Both parents have tried to ensure that notwithstanding their work commitments that they are both able to spend some time with E most days. This works given that E is still quite small. However both should also be aware that this is likely to change over time as E’s needs change. 

9.  By virtue of the court order dated the 24 May 2012 the following interim arrangements were agreed to:

1.  Without prejudice to the parties’ respective applications for the care and control of the child of the family, namely E, a girl born in March 2009, (“E”), the Petitioner (Father) do have interim access to E until further Order of the Court, as follows:-

(a)  Weekday access every Monday, from 5 pm to 6 pm, and every Tuesday, from 5 pm to 7 pm, commencing on Monday, 28 May 2012;

(b)  Weekend overnight staying access from every Thursday at 6 pm to Sunday at 10:30 am, commencing on Thursday, 31 May 2012 subject to the Respondent having lunch access to E from 11:30 am to 1 pm on Saturdays during the Petitioner’s weekend access;

2.  At the beginning of access, unless otherwise specified, E shall be handed over to the Petitioner (Father) by the Respondent (Mother) or her domestic helper at the Petitioner’s office, situated at XXX Hong Kong.  For other times the Petitioner shall pick up E from her school directly if access takes place from after E’s school;

3.  Unless otherwise specified E shall be handed over to the Respondent (Mother) or her domestic helper at the lobby of the building of the Respondent’s residence situated at XXX Hong Kong at the end of the Petitioner’s weekdays access and at the Petitioner’s said office at the end of his weekend access, unless otherwise agreed between the parties;

4.  On any occasion when the Respondent who is at the time caring for E is unable to take care of E overnight because of work commitments for two nights or more then the Petitioner shall be offered the first option of care of E and shall be entitled to overnight staying access to E in place of the Respondent.  If this situation occurs then the Respondent will have access to E starting from Saturday mornings, which means that the Petitioner’s weekend access to E shall be from Thursday at 6 pm through to Saturday at 10:30 am that week;

10.  The mother sets out E’s current schedule in her affidavit dated the 28 August 2012 as follows:

5.  E attends Tutor Time every morning from 9am to 12pm on Mondays to Fridays.  I wake up early so that I can have breakfast with her before she leaves for school and I go to work.  E-m, my domestic helper / nanny, accompanies E onto the school bus each day.  After school, she returns home and she has lunch from 12:30pm to 1pm, a nap from 1pm to 2:30pm and then sometimes a small snack at 3pm.  E has different afternoon activities scheduled each day and they are as follows:

Monday	4pm – 5pm	Painting Class
	5pm – 6pm	Access with the Petitioner
	7pm – 8pm	Dinner at home with me and my parents
Tuesday	4pm – 6pm	Play dates with friends
	6pm – 8pm	Access with the Petitioner, including dinner
Wednesday	3pm – 4pm	Phonics class with her friend
	5pm – 6:30pm	Going to the park or other activities with my parents
	7pm – 8:30pm	Dinner at home with me and my parents or sometimes I take E out for dinner
Thursday	3pm – 4pm	Play time at home with my parents
	5pm – 6pm	Dance class with her friends at Hong Kong Park stadium

6. On some of the afternoons, E-m will bring E to my office to have afternoon tea with me.  I am a working mother and I have limited time but I try my best to spend as much time with E as possible.  After E’s afternoon activities and dinner on Mondays, Tuesdays and Wednesdays, she has her bath and then story time with me at 8:45pm.  I look after her and always put her to bed on those nights.  She is usually asleep around 9:15pm.

7. After E’s dance class on Thursday afternoons, E-m drops her off at the Petitioner’s gym for access. She stays with him overnight until Sunday morning save for lunch time on Saturdays when I see her from 11:30am to 1:30 pm.  Her Sunday schedule with me is as follows:

10:30 am	I pick up E from the gym
11:45am – 1pm	We go to church
1pm – 2pm	Lunch with me and my parents or friends
2:30pm – 4pm Nap time
4:30 – 7pm	Various activities that I plan, for example, going to the Peak, Stanley, boating with friends, Ocean Park, playing in the playground and parks or play dates at friends’ homes
7:30pm	Dinner
8:30pm	Bath time
8:45pm	Story time
9pm – 9:15pm	Bed time

11.  So the reality here is that at present the father sees E for a short period on Mondays and for dinner on Tuesdays and she sleeps over at his house on Thursdays, Fridays and Saturdays. In addition the parents have split the weekends so that E spends all day Saturday with her father, save for lunch when she is with her mother and all day Sunday with her mother and maternal grandparents. The father does not see her at all on Wednesdays. Further the mother sees E for a short periods in the mornings before she goes to school on Monday, Tuesday, Wednesday and Thursday and for supper on Mondays and Wednesdays. Thus the mother sees E every day save for Fridays. In addition the mother relies on her helper to take E to the school bus and to assist in the afternoon’s when she is not with either parent. E also spends time with her maternal grandparents and with the father’s new partner, C when she is with the father.

12.  The father has suggested that the mother has to work long hours and that she is not always available for E in the evenings. I am not sure if that is true or not but suffice it to say that I am sure that there are some occasions when this will be somewhat inevitable.  

13.  In any event there is no evidence before me to suggest that E is not thriving. She seems on the face of the documents to be a very happy and well adjusted little girl who is closely bonded to both of her parents. This is to be encouraged and needs to be supported longer term.

Terminology

14.  I should also add that I am aware of the dangers caused by analysing in too much detail the appropriate wording to be used in a court order, especially when there is some conflict between the parents (which is often inevitably the case). This was recently identified in a slightly different context in a submission made by the Law Society in England and Wales on the draft legislation in the Family Justice Review. The submission is dated October 2012. Referring to the concept of a Child Arrangement Order it commented that

We support the proposal to replace Section 8 Children Act 1989 orders for residence and contact with Child Arrangements Orders (CAO), which is intended to move away from terminology that implies that there is a winner and loser in disputes concerning children.

Section 2(3) refers to CAO’s setting out with whom and when a child is to ‘live, spend time or otherwise have contact’.  It seems to us that there is a risk that this wording will itself create a new hierarchy of expectation among parents based on ‘live, spend time or otherwise have contact’.

There are clearly limits to how far changes in terminology can minimise conflict, but we suggest that consideration be given to a simpler formulation for CAO’s, for example (‘spend time or communicate with’.  The Law Commission has warned against

‘invidious allocations of power and responsibilities between parents.’

recommending that

‘It need not be suggested that one parent is better or more fit than the other, simply the child is able to spend more time with one or the other. ‘[emphasis added]

15.  It seems to me that there is a danger of the same happening here. The parents have become very concerned about the terminology in the belief that there is a risk that if they do not get this right that this will somehow undermine their role as parents. There seems to be a concern that one parent may get the upper hand by virtue of the terminology used and be deemed the “winner”.  I have to say that I am not convinced that that is correct. What matters, it seems to me, is the quality of the relationship between the child and the parent, which should then be reflected in the appropriate terminology used in a court order. The terminology used is not something of itself. 

Discussion

What orders should the court make to describe the current care arrangement for E?

The law

Custody, Care and control, access and shared care

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

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

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

(Amended 69 of 1997 s. 28)

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

17.  The general principles governing such applications are set out in s.3 of the Guardianship of Minors Ordinance, Cap. 13, which says that:

GENERAL PRINCIPLES

(1)  In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property-

(a)  in any proceedings before any court (whether or not a court as defined in section 2) the court -

(i)  shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to -

(A)  the views of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and

(B)  any material information including any report of the Director of Social Welfare available to the court at the hearing;

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

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

18.  Case law has developed over time and the most recent and authorative explanation of the terminology used in our courts, as referred to by both lawyers, can be found in the Court of Appeal decision in PD v KWW, Civil Appeal No 188 of 2008, 9 June 2010. In it the Hon Mr Justice Hartmann, JA, said inter alia as follows:

The concepts of ‘custody’ and ‘care and control’

28.   As our law has developed and now presently stands, when a marriage breaks down and the court must ensure the best interests of any child of the union, it will invariably do so by bringing into play the dual concepts of ‘custody’ – whether it be sole or joint custody – and ‘care and control’.  Neither concept, however, is defined in our statute books.

29.   Regrettably, empirical evidence suggests that there is a large measure of misunderstanding as to the nature and extent of the two concepts, certainly among lay persons.

30.   At a practical level, a convenient way of understanding the two concepts is to compare the nature of the decision-making that is required to put them into practice.

31.   The decisions to be made by a custodial parent are those of real consequence in safeguarding and promoting the child’s health, development and general welfare.  They include decisions as to whether or not the child should undergo a medical operation, what religion the child should adhere to, what school the child should attend, what extracurricular activities the child should pursue, be it learning a musical instrument or being coached in a sport.  A parent vested with custody has the responsibility of acting as the child’s legal representative.

32.   By contrast, the decisions to be made by a parent who (at any time) has care and control of the child are of a more mundane, day-to-day nature, decisions of only passing consequence in themselves but cumulatively of importance in moulding the character of the child.  They include a host of decisions that arise out of the fact that the parent has physical control of the child and the responsibility of attending to the child’s immediate care.  They include decisions as to what the child will wear that day, what the child may watch on television, when the child will settle down to homework and when the child will go to bed.  They also include the authority to impose appropriate discipline.

33.   We have spoken of the misunderstanding that exists as to the nature and extent of the two concepts.  This is most often manifested in the misperception that, if sole custody is given to one parent, that parent thereby ‘wins’ the right to determine all matters big and small in the upbringing of that child while the parent who is not given custody ‘loses’ the right to have any say in the child’s upbringing.  The present case is a prime example. …

       ……

36.   It is to be emphasized in the strongest terms that if one parent only is given custody, that parent is not thereby given an absolute and independent authority to act without further reference to the non-custodial parent.  Any such potential misunderstanding was quashed in Dipper v Dipper [1980] 3 WLR 626 in which Ormrod LJ said:

“It used to be considered that the parent having custody had the right to control their children’s education, and in the past their religion. This is a misunderstanding. Neither parent has any pre-emptive right over the other. If there is no agreement as to the education of the children, or their religious upbringing or any other matter in their lives, that disagreement has to be decided by the court.”

37.   In the same case, Cumming-Bruce LJ, another experienced family judge, said:

“… it (is) a fallacy which continues to raise its ugly head that, on making a custody order, the custodial parent has a right to take all the decisions about the education of the children in spite of the disagreements of the other parent. That is quite wrong. The parent is always entitled, whatever his custodial status, to know and be consulted about the future education of the children and any other major matters. If he disagrees with the course proposed by the custodial parent he has the right to come to the court in order that the difference may be determined by the court.”

38.   A non-custodial parent therefore has the right to be consulted in respect of all matters of consequence that relate to the child’s upbringing.  While the right to be consulted does not include a power of veto, it is nevertheless a substantial right.  It is not merely a right to be informed, it is a right to be able to confer on the matter in issue, to give advice and to have that advice considered. 

39.   While therefore a parent who is given sole custody is given the authority, in the event of disagreement with the non-custodial parent, to make the final decision, it should only be made after due consultation and, if the final decision that is made is considered by the non-custodial parent to be inimical to the child’s best interests, the court may be called upon to determine the matter. 

40.   Invariably, therefore, the giving of sole custody to one parent does no more than recognise that, in the circumstances of the breakdown o f the marriage, the best interests of the child are secured by giving to that parent the authority, if necessary, to make a final decision concerning matters of consequence in the upbringing of the child but only after the other parent’s views have been given full and rational consideration.  In summary, an order of sole custody does no more than add a qualification to the otherwise joint endeavour of both parents in raising their child, that qualification being that the final decision will rest with one parent.

41.   For this reason it is often said that there is a thin line between sole custody and joint custody.

He concluded

43.   Before leaving a consideration of the dual concepts of custody and care and control, it needs to be emphasised that, when a court awards care and control to one parent but rights of access to the other, as in the present case, the court is effectively awarding a form of shared care and control.  This is because, when a parent exercises rights of access, especially staying access, that parent assumes care and control of the child for the time that the child is in that parent’s physical custody.  Rights of access, it is to be remembered, are given – in the interests of the child – to ensure continued bonding between parent and child.

A shift in societal values

44.   …

45.   There was a time also, not so long gone, when the roles of the mother and the father in the raising of their child were viewed with almost equal rigidity.  The mother was best left to care for the child, certainly when the child was young.  The father was best left to provide financial support and to exercise rights of guardianship.  As for his contact with the child, visitation was deemed sufficient.  Today, such sexist views are obsolete.

46.   Social imperatives change.  When they are important and lasting, the common law can, and should, keep pace with that change.

47.   It is widely recognized today that the long-term best interests of a child are invariably best protected if, despite the breakdown of the marital union, both parents are able to continue to play an equal role in making the important decisions that will determine the child’s upbringing….

Joint Custody: the proper approach

52.   Today, although there has been no change in our law similar to many other common law jurisdictions, orders of joint custody are in no way exceptional.  This is because it is accepted that, in principle, such orders are in the interests of children.

53.   In all but the most exceptional circumstances, the effect of divorce on the children of the marriage, especially children of tender years, is deeply felt. In all but the most exceptional circumstances, such children desire that they should continue to be protected and guided by both parents.  The case before us is an example.

54.   In the result, in the best interests of the child, the fact that, as a result of the breakdown of the marriage, relations between the parents are strained is not of itself a reason to refuse to make a joint order or custody.  Nor is the fact that the parent to be given care and control does not agree.  Such orders look to the future.  They will govern a limited area of exchange between the parents, albeit one of the greatest importance.

55.   Accordingly, the issue for the judge is whether, with the court proceedings concluded, it is reasonably anticipated that the parents will be able to agree on the questions of importance that will determine the upbringing of their child, both recognizing that, as difficult as it may be for them, this process of co-operation is in the best interests of the child.

56.   In determining this issue, the judge is entitled to proceed on the presumption that competent, loving parents possessed of sufficient objectivity to be able to make rational decisions in the interests of the child will be able to co-operate with each concerning matters of importance in the upbringing of the child.

57.   At all times, of course, the welfare of the child remains the first and paramount consideration.  As this Court has recognised (see, for example, Y v P [2009] HKFLR 308), there may be occasions when the ability of the parents to reach any rational accord in respect of important matters concerning the upbringing of their child is so deeply undermined that to compel attempts at co-operation will not protect the interests of the child but only leave the child more vulnerable.

19.  At present then the courts make orders for either (sole) custody or joint custody plus care and control/ joint care and control, shared care and/or access. The access order can either be for reasonable or defined access. Sometimes reference is also made to generous access. Thus it is possible to have a whole array of different orders e.g. 1) custody and care and control to one parent and reasonable access to the other, 2) joint custody with care and control to one parent and reasonable access to the other, 3) joint custody and joint care and control to both parents, 4) sole custody to one parent and shared care and 5) joint custody and shared care. It is also possible to make an order for joint custody and to be silent on care and control/access/shared care. In addition, as intimated above, it is also possible to make a whole array of orders with respect to access.

So what do these terms actually mean?    

20.  Given that the parties are agreed that they shall have joint custody I intend in this judgment to concentrate on the terms care and control, access and shared care. I touched upon this in SEB v ZX (Custody) [2007] HKFLR 165 when I said as follows: 

16.   The term care and control is not referred to anywhere in our legislation.  It is generally said to mean the day-to-day looking after of the child i.e. getting the child up for school, making sure that he is fed and watered, that he does his homework and that he has an appropriate structure to his day.

17.   Access is the right of the child to see the non-custodial parent, or in the case of joint custody, the right of the child to see the parent without care and control.  The normal order is for reasonable access – and the details are left for the parents to work out between them.  Alternatively access can be defined.

“2.21 Access is the right to have contact with the child, such as through letters, e-mails, telephone calls, visiting the child, taking him out or having him to stay from time to time”.

Access is also said to be the right of the child as opposed to the right of the parent.

Joint care and control

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

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

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

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

Detailed arrangements were then set out accordingly.

23.  In TAC v VDC nee VDM FCMC 16497 2010 I made an order for joint custody and shared care. Again there was a very high level of conflict between the parents necessitating a very detailed order, which was again more reminiscent of a parallel parenting regime. I did not think it appropriate in that case for the important decision making power to vest in one parent only.

What order should be made in this case?

24.  As I have said the parties have agreed joint custody. They have also agreed to the practical arrangements for E. These will need to change over time. Although there appears to be some conflict between the parents I would not describe this, on the face of the documents as a high conflict case, although I have been told that the parties have only been able to agree matters at the door of the court. It is however to each parent’s credit that they have refrained from attempting to cast this case in that light. Ultimately this will be of enormous benefit to E.

25.  Given that it seems to me that the most appropriate order to be made here is for both parents to have joint custody and joint care and control of E. I would very much hope that the spirit of co operation and compromise continues longer term and that the parents are able to build on this going forward. Neither parent should view this as the other parent “winning”. It is simply reflective of the reality of their particular parenting regime.

26.  Consequently the interim orders referred to above at paragraph 9 shall become final orders. However I would again reiterate the need for both parents to be aware that this arrangement is likely to alter over time.    

Costs

27.  Given that this is a child related matter there will be no order as to costs.