TAC v. VDC nee VDM

FCMC 16497 / 2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 16497 OF 2010

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J U D G M E N T
( Relocation, Child’s arrangements )

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Introduction

1.  This is an application by a respondent mother for leave to permanently remove the only child of the family out of the jurisdiction of Hong Kong in order to relocate with her to B, USA. The father opposes the mother’s application. The father seeks an order for sole custody. He also asks that the child be in his care for four days out of every seven. He says that this order more closely reflects the recommendations made by the jointly appointed experts in this case. The mother seeks an order for relocation plus an order for joint custody with care and control to her and reasonable access to the father.     

2.  This case is primarily about the assessment of risk. The question I have to answer is this. Should I, in an otherwise classic relocation application, deny the mother’s request to permanently remove the child of the family out of Hong Kong in order to return to her home town in B in the United States, because of concerns about the mother’s mental health?

3.  The trial, which was originally listed for 8 days, lasted 17 days and was conducted over a six month period in two tranches. I have heard from the court’s jointly appointed experts - psychologists, Dr M and Dr L twice. I have also heard from the mother’s own therapist Dr B, who gave evidence on the mother’s behalf. I also gave leave for each party to call three further witnesses. The mother called her own mother, i.e. the maternal grandmother, her sister and a personal friend from Hong Kong. The father called his sister, the family driver and a friend who works for the Church as a missionary. In addition I have also had the benefit of the Social Welfare Officer’s testimony. The primary focus of the trial has been on the mental health of the mother and the impact that this might have, if proven, on the care arrangements for the child of the family, a little girl C who is now aged 6.

4.  At the end of the father’s evidence it also became clear that there was a “timing” issue, in that it is accepted by the father that at some point in time he will also relocate back to B. It is not so much a question of “if” as of “when”.

5.  The father claims that the mother’s behaviour is such that she should no longer be the primary care giver of C. He also disputes that she has been the primary carer notwithstanding the fact that until recently the mother has been a full time non working parent. The father holds a senior position with an international corporate. As one might expect, he has historically been required to travel, sometimes frequently, as part of his job requirement.

6.  An unusual feature of this case has been the agreement between the parties to install CCTV cameras in the former matrimonial home. This was initially suggested by the mother. She said that she had made the request because she believed that the father was setting in place the ground work for an application for an ouster injunction. She said that the CCTV footage provided indisputable evidence that there was no basis for such an application. She was correct in that. The father concurred with the mother’s request, save that he did not agree to install a camera in C’s room. Somewhat reluctantly I did eventually agree to observe some clips from the CCTV footage and this will be discussed in more detail below.

The main issues to be discussed then are as follows:

1) What is the current status of the mother’s mental health?

2) Should permission be given for C to leave Hong Kong in order to relocate to B, USA with her mother?

3) What orders should the court make for custody, care and control, access/shared care?

4) Are these orders ultimately in the best interest of C?

Background to the marriage

7.  The parties married in November 2004 and on the 14 December 2010 the father issued proceedings for divorce in Hong Kong. Prior to the marriage the parties had cohabited for a year or so. This was then a relationship of approximately seven year’s duration. The parties are both American and both had been married before. The father is now aged 47 and the mother 43. C is 6 years old having been born in May 2006. She is the only child of the marriage. Neither party have children by previous marriages.

8.  On the face of it this should have been a successful union. Both parties are committed Christians. Both are well educated. The parties met in January 2002 at the instigation, in part, of the maternal grandmother. The father was separated at the time and going through his first divorce. The mother had been divorced previously. She was at Law School when they met. Upon graduation she embarked on a career as an attorney. Prior to Law School she had worked in a variety of other different capacities. As I have said the father holds a senior position in an international corporate. He has worked for the same company for 17 years and was based with them in B when he met the mother. He continues to work for the same company now.

9.  Unfortunately it seems that almost from the start the parties’ relationship was beset by difficulties. As far as C is concerned, she was cared for by the mother on a more or less full time basis until she was 14 months old. The parties also had the advantage of a housekeeper and a baby sitter who assisted the parties with C’s care. In July 2007 the parties employed a live in au pair and the mother returned to work for a non profit on a part time basis. She continued to care for C when she was not working. The father also assisted in her care when he was at home.

10.  In January 2008 the father was offered a position in Hong Kong as the CEO for the Asia Pacific region. The position was initially for a three year period with the option to extend to five years, commencing in March 2008. It seems that the mother had some misgivings about the move but agreed nevertheless to relocate to Hong Kong. Consequently the father came out first in February 2008 and in March 2008 the mother followed with C. Other family members accompanied the couple to assist with the logistics of an international move.

11.  The parties’ new life did not get off to a good start when C contracted flu and was hospitalized. The parties’ relationship generally did not improve and infact seems to have deteriorated further from this time on. The central theme from the mother’s perspective seems to have been concerns about the lack of intimacy in the marriage followed by issues related to the father’s sexual orientation. The mother also maintains that the father has “control” issues.  From the father’s perspective he complains about the mother’s “behaviours” and expresses concern about her emotional stability.

12.  The mother reverted back to being C’s full time care giver in Hong Kong. She has not worked outside of the home since the parties relocated. The father made a point of being home for dinner and Saturday was “family day”. The parties attended church on Sundays. They were also members of a Club.      

The litigation in the United States

13.  In December 2009 the parties returned to B for Christmas, with the mother going on ahead of the father with C and staying on after his return to Hong Kong. While she was there she sought legal advice with respect to the marriage and C. It seems that she was told inter alia of the possible ramifications arising under the Hague Convention if the father did not consent to C’s permanent relocation back to B. On the mother’s account the parties then entered into negotiations both in B and Hong Kong which eventually led to the parties’ Interim Custody Agreement.

14.  This stated as follows:

RECITALS

 WHEREAS, the parties are the parents of one minor child, C C, born in May, 2006 (“C”);

 WHEREAS, differences have arisen between the parties regarding their marriage, the length of their stay in Hong Kong SAR, and whether the courts of Hong Kong SAR or the courts of M should have jurisdiction to determine the custody of C in the event the parties are unable to reconcile their differences and they decide to separate;

 WHEREAS, the parties wish to resolve their differences, including their desires as to which court will have jurisdiction to determine the custody of C in the event the parties are unable to reconcile or salvage their marriage and they decide to separate;

 NOW, THEREFORE, in consideration of the mutual promises herein made and of the acts to be performed by the respective parties hereto, it is agreed as follows:

1. The above Recitals are incorporated by reference as if fully set forth herein.

2. Wife and C will return temporarily to Hong Kong, SAR, on January 22, 2010.

3. The parties agree and acquiesce that their own and C’s stay in Hong Kong SAR is a temporary absence from C’s home state of M, as the terms “home state” and “temporary absence” are used in the M Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) and defined in the M UCCJEA, Section 9.5 101 (h)(1) in the Family Law article of the Annotated Code of M, for so long as Husband is posted in Hong Kong SAR.

4. The parties expressly understand and agree and acquiesce that M is C’s home state and shall remain C’s home state for so long as Husband is posted in Hong Kong SAR.

5. The parties agree that, after Wife and C return to Hong Kong SAR on January 22, 2010.  Wife and C shall remain in Hong Kong SAR for at least fourteen (14) months, or until March 2011, with the exception of temporary, three-week visits to M in August and December 2010.  Neither party shall remove C from Hong Kong SAR at any other time without the express consent of the other party.

6. Subject to the provisions of Paragraph 5, the parties agree not to take C out of Hong Kong or any other country or retain C in any country without the consent of the other.

7. The parties agree that if in March 2011, the parties are reconciled and wish to remain married and living together, the parties shall discuss and make every effort to reach a mutual agreement as to any new location as to which Husband’s employment would require him to relocate to.  If, however, the parties decide to separate at that time and Wife returns to M with C while Husband remains overseas, the parties agree that Husband and Wife shall have joint legal custody of C.  The parties further agree that Husband shall have, at a minimum, liberal visitation with C, including visitation in his country of residence.  Both parties agree and acknowledge that it is in C’s best interests to have a strong relationship with both parents and to spend substantial time with both of them.

8. The parties further agree that, upon Wife’s return to Hong Kong SAR.  Wife and Husband will each engage in individual counselling as well as attend marriage counselling together.

9. The parties agree that neither party shall commence custody and/or divorce proceedings in Hong Kong SAR or in M during the time the parties remain temporarily located in Hong Kong SAR.

10. Husband agrees that Wife may use marital funds to pay the fair, reasonable, and necessary fees and costs of her attorneys, M & S P.C., in connection with reaching this agreement.

11. Husband agrees that Wife will use credit cards and have full access to marital funds sufficient to enable her to pay for the household expenses and her reasonable personal and family expenses.  Neither party shall make capital withdrawals or liquidate marital assets without the other’s express consent.  The parties further agree that neither party shall withdraw funds from any marital accounts in such a way that would disrupt payment of the parties’ bills or adversely affect either party’s credit.

12. The parties agree that if after March 2011, the parties separate with the intent of ending their marriage, Husband will make a full financial disclosure to the Wife at that time.

13. Both parties have been represented by counsel in the negotiation, drafting, and execution of this Agreement.

15.  The mother, in reliance on this agreement, then returned to Hong Kong with C. It has since been suggested during the trial that the mother wrongfully retained C in B and that the father had no choice but to enter into this agreement in order to ensure C’s return. With respect I do not agree. The mother returned to B for Christmas by agreement. She did not retain C in B for any length of time. She sought advice and quite properly acted upon it. The father said in the witness box that he has not abided by this agreement since because he had only entered into it under duress. He said that he did not accept that it was a valid agreement. When pressed he further elaborated and claimed that the mother had made a “run” on their accounts in B and had tried to “cash in” C’s college fund plus another mutual fund. He felt that the mother was holding C as a bargaining chip. Consequently he felt that he had no option but to acquiesce to her demands and to sign the agreement. I do not accept this at all. There is no doubt in my mind that had the mother retained C in B improperly and without the father’s agreement that he would have had no hesitation in instituting Hague Convention proceedings in order to ensure her prompt return to Hong Kong. He was clearly aware that this was an option and according to the mother made mention of this to her. I am sure that the father was fully aware of all of his available legal remedies. The mother for her part denies making a “run” on the accounts and says that she simply wanted to access funds that were jointly held in order to pay for her lawyer’s retainer. She specifically denies trying to cash in C’s college fund.

16.  Although the mother’s actions may have been unexpected nevertheless the father quickly obtained advice from lawyers in both jurisdictions. There is evidence that the parties entered into quite extensive negotiations. The husband said that he “rejected the premise that these were valid negotiations”. I do not agree. I believe that the husband knew what he was signing and the ramifications arising out of the agreement. The wife says that it was never suggested to her that the husband did not consider himself bound by the agreement. I accept that to be the case. All in all I also accept that this was a valid agreement and that the mother returned to Hong Kong in reliance upon it.

17.  In the agreement the parties agreed “joint legal custody of C”. It is assumed that unless the parties reconciled that the mother would return to B with C and that in that event the father would have liberal visitation to include visits to his country of residence. In our legal parlance I take that to mean that the parties would have joint custody, with care and control to the mother and reasonable access to the father to include staying access overseas.

18.  Five months later, in May 2010 the father sold the parties matrimonial home in B. It was held in his sole name. The mother says that this was done without her agreement, something that the father denies. The mother also says that it had always been the parties’ intention to return to this house in due course and that it had also been agreed that they would not rent it out, but use it when they returned to B on vacations. After the sale, all of the parties’ belongings and furniture were placed in storage. During the trial e-mail correspondence was produced which showed that the mother had been copied in on e-mail correspondence with respect to a potential sale of the property. When challenged, the mother accepted that that was the case. She says that she had been very busy at the time and that in any event she had not wanted to “rock the boat”. I accept however the mother’s claim that in retrospect this was the first real indication that all was not well within the marriage. The father says that he was offered a very good price for the property and that he decided to sell and that this was with the mother’s agreement. Although I accept that the mother did know about the sale, I also accept that she did not positively agree to it. In any event the net result was that the mother no longer had a home to return to with C.    

The litigation in Hong Kong

19.  A further seven months elapsed and on the 14 December 2010 the father issued divorce proceedings based on the mother’s unreasonable behaviour. There was no pre action letter and no attempt to issue proceedings on a more amicable basis. This was also in direct contravention to the Interim Custody Agreement (see paragraph 9 of the agreement set out at paragraph 14 above). The parties had been in counselling at the time, as had also been agreed (see paragraph 8). The father makes some very serious allegations against the mother in the petition. He also seeks an order for sole custody and care and control of C, with reasonable access to the mother. On the same date the father also filed an ex parte summons on notice asking that C remain in his custody, care and control and that C not be removed from Hong Kong without leave of the court. It was supported by a 25 page affidavit in which the father says that he does not consider that the mother is “fit to continue taking care of C”. He adds that he wishes to “protect C” and to look after her. He attaches statements from the parties’ domestic helper and others. He also lists examples of the mother’s “unreasonable behaviour”, including the “unpredictable loss of control and unnecessary screaming”, her “unreasonable accusations and demands” and a number of “incidences”. The father says that he hopes to obtain interim care and control. In a second affidavit dated the 15 December 2010 the father further expresses concern about the mother’s emotional state. He says that he does not believe that the mother can look after C on her own. He says that he believes that she intends to relocate to B and not return to Hong Kong. He also says that he may have no alternative but to move out of the parties’ home and to take C with him. I accept that the mother will have regarded both the petition and the ex parte summons on notice as being a very aggressive pre emptive strike in the litigation. I think she was right in this. I also accept that the documents would have taken some considerable time to prepare.

20.  Given the fact that a) the mother had until this time been C’s primary carer, b) that there was an agreement in place regarding both her care and how the parties were going to proceed in the event that the marriage could not be saved and c) the father’s stated concerns about the mother’s emotional state, it is hard to imagine a more unfortunate start to litigation regarding the arrangements for a small child’s welfare. The tone of the affidavits is unnecessarily aggressive and litigious. Such an approach is to be discouraged whatever the prevailing circumstances.

21.  The mother responded by saying inter alia as follows:

I believe that if a divorce is inevitable, then matters concerning the divorce, including matters concerning care and control and finances can be dealt with in a more civilised manner, potentially with the assistance of a mediator.  There really is no need for my husband to have embarked upon litigation in this remarkably hostile and antagonistic manner.

I agree.

22.  On the 16 December 2010, erring on the side of caution, I made an order preventing C’s removal from the jurisdiction pending determination of the custody issues arising out of the proceedings. I did not allow the mother to go to B for Christmas. Neither however did I make any interim orders for custody and care and control as sought by the father.

23.  The matter then progressed. The divorce suit was initially defended. The parties eventually agreed to proceed on the basis of watered down mild unreasonable behaviour particulars. The decree nisi was pronounced on the 13 May 2011.

24.  On the 14 January 2011 the mother sought leave to permanently remove C out of the jurisdiction of Hong Kong. On the 17 January 2011 the father issued a summons seeking custody and care and control of C. He makes no proposals for access. The parties continued to live under the same roof. In her affidavit of the 16 January 2011 the mother says:

I am a prisoner in my own home.  The Petitioner who, up until now, has played a marginal role in the life of our daughter, as one would expect from a full time working father, has now assumed the role of determining every aspect of C’s life down to what she is doing at lunch time to who is to attend to her teeth.  The Petitioner has formed an alliance with C-a, the domestic helper, so that I am watched and monitored all day and anything I do and say is reported by the domestic helper to the Petitioner, in a particularly slanted and biased way. The Petitioner and C-a have contrived allegations of unreasonable behaviour against me, and C-a has even made a complaint against me to the police, and I have no doubt whatsoever that complaint was the idea of the Petitioner and has been engineered and assisted by him.  C-a is openly defiant towards me and I am fearful and unhappy in an environment where the Petitioner and C-a can contrive a complaint against me to the extent I could even be arrested and held in police custody – it’s like living in a horror movie film set.  In order to protect myself, I would now like camera’s installed in the living room, to include the hall, the kitchen, the stairs leading to the bedrooms upstairs and the open lounge upstairs.  I think there should also be a camera in C’s bedroom.  This would provide incontrovertible independent evidence of how arguments and incidents are created by the Petitioner and C-a which are then distorted to portray me as the villain of the piece.  Since the Petitioner and C-a would know they are monitored, it might be that things revert to the way they were before the Petitioner created a fictionalised version of our home life and my behaviour.

25.  The parties agreed to do so without recourse to the court. Cameras were not installed in C’s room at the father’s insistence. On the 11 March 2011 the husband issued a summons in which he asked inter alia that the wife be restrained from interfering with his witnesses. He lists 28 people. On the 14 March 2011 the parties agreed to take Dr D’s 12 hour on line parenting course. This is specifically designed for situations like this – i.e. where the parties are in a high conflict environment. Dr M was also appointed as a joint expert to file and serve a psychological report on both parties. Dr L had been appointed previously by agreement to report to the court on C’s psychological well being.

26.  Another issue arose when the mother entered the father’s study and tried to access his blackberry. Issues arising out of this were ultimately dealt with by way of undertakings.

27.  It was also clear that it was not going to be possible to hear from all of the potential witnesses from each side. Therefore on the 22 July 2011 I gave directions that each party be given the opportunity to file affidavit evidence from three witnesses each. The father chose to call his sister Ms C C, his driver Mr M R and I gave leave for him to file “an affidavit from one further witness who can give further factual evidence in relation to the petitioner’s parenting”. The father subsequently filed an affidavit from Ms B, who is a missionary with his church. Part of her affidavit evidence was later redacted as it went outside the perimeters that had been clearly ordered. The mother chose to call her mother, Mrs V M, her sister, Ms K T and her close friend Ms N C. Both parties also filed affidavit evidence from their lawyers in the United States.

28.  Following the first tranche of the hearing in August 2011 the parties entered into a consent summons whereby it was agreed inter alia as follows:

A. AND UPON the respondent [mother] acknowledging and undertaking to the Court and to the Petitioner that she will receive therapy once a week or as advised to deal with her mental health issues, and that whichever therapist the Respondent is going to appoint, he or she will be provided with the reports of Dr. M and Dr L prepared for in these proceedings;

…

C. AND UPON the Petitioner and the Respondent acknowledging and agreeing to seek advice from Dr.  P on how best to prepare C for her parents’ physical separation and to arrange C to see Dr P as soon as practicable before such separation takes place.

D. AND UPON both parties’ agreement to continue to retain Mr E as the mediator to assist the parties to resolve matters in relation to parent co-ordinating

   …

1. The Petitioner and the Respondent do have the following access to C, a girl in May 2006 (“C”)

2. Every Tuesday and Thursday the Petitioner will collect C at 5:30 p.m. and will have overnight access, taking C to school the following morning on Wednesday and Friday.  On the basis that the Respondent will move to and be living at P, the Petitioner will pick C up outside the club house of the P Serviced Apartments at 5:30 p.m. on every Tuesday and Thursday.

3. Every Friday, the Petitioner will see C for dinner.  He will pick her up outside the club house of the P Serviced Apartments at 5:30 p.m. and drop her off at the same location at 7:45 p.m. later the same evening.

4. Alternate weekend staying access as follows:-

Week 1:

(i) The Petitioner will pick C up outside the club house of the P Serviced Apartments at 8:30 a.m. on Saturday and return her to the same location at 9:00 a.m. the next day.

    Week 2:

(iii) The Petitioner will pick C up outside the club house of the P Serviced Apartments at 8:30 a.m. on Sunday and take her to school on Monday morning.

5. The arrangement for the Petitioner to conduct picking-up and dropping-off of C back to and from the Respondent’s residence will be revisited if and when the Respondent has a vehicle.

Public Holidays and Long Holidays from now till early March 2012

6. The parties shall have alternate access to C on public holidays between now and early March 2012.

7. Access arrangements shall be as usual (i.e. following the same structure of school days arrangements as mentioned in paragraphs 1 to 5 above in so far as is applicable) during school mid-term break from 31st October 2011 to 4th November 2011.

8. The parties shall share the holidays during Christmas 2011/New Year 2012/Chinese New Year 2012 (with handover falling on Christmas morning as it is the mid-point) as well as the Chinese New Year on an equal basis, and they will seek assistance from the mediator, Mr. E, to work out the exact details and arrangements if and when necessary.

9. On any day, the parent who is not with C while the other parent is having access will have daily contact with her by telephone and/or Skype or other similar programme, at reasonable hours of the day and by prior arrangement with the other party, and the other parent shall facilitate such communication.

29.  In other words C is presently picked up by her mother from school every school day. She sleeps over at her mother’s home on Mondays, Wednesdays and Fridays and the mother takes her to school on Tuesdays and Thursdays. She presently has activities on Monday’s after school (Daisy Scouts and a Disco Dancing class). In addition she has an appointment with Dr P on Fridays and her father presently takes her to a horse riding lesson on alternate Sundays.  She sleeps over at her father’s home on Tuesday and Thursday’s and the father takes her to school on Wednesdays and Fridays. Weekends are presently split with C either spending Saturday or Sunday night with each parent. Whichever parent has her on Sunday night takes her to school on Monday morning. Thus she spends four nights per week with her mother and three nights per week with her father. Weekends are split between the parties on an alternate basis. As will be seen this arrangement does not appear to be working too well from C’s perspective. 

The mother’s case

30.  The mother wishes to return “home”. As I have said her application is a classic one both in its definition and approach. She and the father are expatriates. She came to Hong Kong with the father and C because the father was posted here. The appointment was originally for three years with the option to extend for another two. Hong Kong was never meant to be a long term posting. The marriage has broken down in quite spectacular fashion. The mother now wishes to return home with C where she has family support and where she can return to work as an  attorney. She cannot practice her chosen profession in Hong Kong and says that she feels trapped. She has suffered from a major depressive episode. She is clearly very unhappy here. She simply wishes to return “home”. It is accepted by all of the professionals involved that from the mother’s perspective only, that she is likely to do much better in B than in Hong Kong. She says that notwithstanding the nature of these proceedings that she will continue to support C’s relationship with the father. She says that she has done so to date. She is also willing to undertake to have therapy in B. She asks for joint custody with care and control of C to herself and reasonable access to the father. She is happy to discuss major decisions, such as C’s future education with him. She says that it is not C’s fault that her parents have split up and that the parties need to find a way to co parent her in the future. She denies many of the allegations made against her and says that they are either exaggerated or simply not true. She says that she had hoped for a more dignified and less aggressive approach to the demise of her marriage. In so far as the practical arrangements are concerned she is happy to split the school holidays and for the father to see C on giving reasonable notice to her, if he remains in Hong Kong and is unable to relocate back to B in the short term. She believes that the best solution is for the father to relocate back to B also.

The father’s case

31.  The father’s case has changed as these proceedings have progressed. Initially the father seemed, certainly on the papers, to want sole custody and care and control of C with very limited access to the mother. (See the first social welfare report dated the 7 March 2010). This approach seems to have been premised on his apparent concerns about the mother’s mental health. At the end of the first tranche of the trial he said that he would be guided by the experts in the case. It is on that basis that he now asks that C spend four days out of every seven with him. When asked how this would work in practice, given his work commitments, he said during the trial that either C could continue to spend the afternoons with her mother as she does now, or that his sister, Aunt C would take care of her when he was unable to do so. Since then he has changed his position and in his closing submission he suggests that Aunt C should take care of C when he was working. He continues to seek sole custody and he opposes the relocation. He says that he will most likely return to B in due course and that it is very unlikely that he will be posted elsewhere. However he also says that he may be required to stay beyond the original five years envisaged because the firm’s succession plan is not yet in place. Someone has apparently been identified to replace him – but he is not considered to be quite ready to take on the father’s role. He expresses concerns about being marginalized if the relocation is allowed, or even of being alienated. In the event that the relocation is permitted he would like slightly more of the holidays in order to offset any potential detriment to C brought about by him not being fully available to her on a daily basis as now. He remains concerned about the mother’s mental health.

Discussion

32.  I must now turn to consider the issues, the law and the parties evidence as set out in their affidavits and as given orally by them during the hearing.  I have also heard evidence from the jointly appointed court experts – i.e. psychologists – Dr L and Dr M. Dr L filed reports on the 7 March 2011, 27 June 2011 and the 6 December 2011. Dr M has filed two reports dated the 27 June 2011 and the 11 February 2012. In addition Dr B filed a report on behalf of the mother dated the 14 February 2012. She appeared as the mother’s witness. She is also the mother’s therapist. In addition I heard from a number of witnesses from both sides as referred to above. In addition the social welfare officer also gave evidence. She filed reports on the 7 March 2010 and the 19 August 2011.     

What is the current status of the mother’s mental health?

The evidence from the experts

33.  I should say at the outset that I have a great deal of respect for all of the experts that have appeared in this case. They all regularly appear in the Family Court and we – the Judges and the practitioners involved in family law, are greatly assisted by their expertise and input. It is always therefore of some concern when such respected psychologists are not of one accord with each other or when the court does not accept some of their conclusions.

34.  Dr L was initially the parties’ marriage counsellor. The parties were in counselling when the husband issued proceedings. By virtue of a consent summons filed on the 27 January 2011 the parties agreed that Dr L would file an evaluation of C’s psychological well being. It seems to me, on reflection, that Dr L should not have been appointed in that capacity given that she was already engaged as the parties’ marriage counsellor and by virtue of that fact alone would have been privy to much that was confidential between the parties. It later came to light that the father took the liberty of sending Dr L copies of statements from potential witnesses relating to the mother’s behaviour without first informing the mother’s lawyers of the same. This is again a matter of some concern. I do not accept the father’s explanation that he did this because the mother’s affidavit was late – which meant that Dr L would not otherwise have had sight of these documents prior to the filing of her initial report. The mother did not know that these documents were going to be attached to the father’s affidavit. She had a right to know ahead of time and before Dr L filed her report. This would have enabled her to at least have had an opportunity to counter some of the allegations made or to ask the court for the appropriate directions. On the basis of some of these reports and her own observations Dr L reported as follows:

4.   Mr. C has alleged that Mrs. C can have aggressive outbursts and has a history of difficulty managing her anger, and he has provided a number of affidavits and statements supporting this allegation.  These allegations are serious, and should they prove to be founded, significant concerns would be raised with regard to C’s well being.  Although this may not necessarily preclude Mrs. C from future care and control, it is recommended that further investigation be undertaken to determine the veracity of these allegations and the extent to which Mrs. C has difficulty with anger management.

35.  Dr L filed two further reports – both in relation to C’s psychological well being.

36.  Dr M was appointed as a joint expert to file and serve a psychologist report on both parties. This was partly because of the concerns raised by Dr L above. Infact she filed two reports, the first dated the 27 June 2011 and the second dated the 11 February 2012, prior to the second tranche of the hearing. The parties initially agreed to the filing of the first report and this is recorded in the court order dated the 14 March 2011. By that stage a great deal of adverse evidence had been filed against the mother. In addition, as stated above, Dr L had filed her first report. I was of the view, at that time, that the court would be greatly assisted by an independent psychological assessment of the parties. I stated on several occasions that I would be guided primarily by that report as opposed to the other evidence that had been filed. Both Dr M and Dr L had sight of the court documents, correspondence and the CCTV footage. 

37.  Dr P is currently C’s play therapist. She did not appear in court. She has seen C for play therapy and she has provided feedback to Dr L on her observations of C.  

38.  Dr B is not a jointly appointed court expert. She is the mother’s therapist. She did not therefore see, nor perhaps would she have been expected to see either the husband or C. She has provided a report based on her own observations of the mother. She has also read all of the evidence and watched the CCTV video clips. She has conducted her own psychological tests.

39.  It is true that when I asked Dr M to file a second report that I also directed that she should contact the mother’s treating therapist (i.e. Dr B) who should

“either provide a report or alternatively liaise with you with respect to the Mother’s present mental condition. I would expect that to largely deal with your first concern i.e. that a thorough report be provided from Mrs. C’s treating clinician addressing her progress with respect to the issues that you identified in your report to the Court of the 27^th June 2011.”

40.  Dr B quite rightly wrote to the court asking for further clarification as she was worried about client confidentiality given that she was the mother’s treating therapist. As things turned out Dr B did not provide Dr M with a report or liaise with her fully. Much has been said for the reasons for this – none of which I intend to go into in any detail here.

41.  Generally speaking a great deal has been said in this trial and in the evidence that is before the court, together with the closing submissions and replies, about the mother’s mental health and what that might mean in terms of final orders. Given that I think it might be helpful if I were to summarize the situation as it now appears to me.

42.  Notwithstanding Dr M’s diagnosis (as will be seen below) that the mother has features of a borderline personality disorder, neither she, nor Dr L have recommended at any stage that C should be taken away from her mother. This is despite some very damning evidence. Neither is there any suggestion that access should in any way be supervised or curtailed. Despite the fact that the father now says that he will be guided by the experts in this case, there is no doubt that his original stance was that he should have sole custody and care and control of C and that C should be effectively removed from the M’s care and that access should be premised on the mother having treatment for her “mental illness” (see paragraph 13 of the SIR dated the 7 March 2010). This has not at any stage been supported by the experts. When asked how the child’s time should be split, Dr L at the end of the trial only went as far as to say that the father should have C for four days per week and the mother three because the father was the “more emotionally available parent”. There was never any suggestion that the mother was such a danger to herself and C that a shared care arrangement such as this was not feasible. Dr M agreed, when asked by me at the end of the trial, that C needs (and presumably will continue to need) her mother. Neither Dr M nor Dr L support the mother’s plan to relocate it is true. Partly though this has to do with concerns that are normal in a case such as this (e.g. the mother may alienate the father from the child, she may not include him in decision making etc). Partly it is to do with concerns about the mother’s mental stability and the fact that the father’s presence in C’s life, balances the mother’s. In addition it is important to reiterate that the mother has not been diagnosed with a mental illness as such.

43.  Turning next to C herself – there is nothing here that causes me any great concern. C is doing well – better than one might have expected given the nature of these proceedings. She is happy to spend time with both parents and she relates well to each of them. She is doing well at school. She is well adjusted.

44.  In so far as the mother is concerned all of the experts agree that she would do better if she returned to B.

45.  It is therefore against this broad assessment of the situation that I must consider the detail of the reports filed.

The reports

Dr M’s reports

46.  Dr M filed her first report on the 27 June 2011. In the preamble to the report she confirms that she had read the pleadings up to date, which included the statements and affidavits filed by third parties in support of either the father or the mother. She said that

This report is done, not with the aim of providing an exhaustive psychological profile of each party but of providing a thorough enough picture of each party that will have relevance to their parenting capacity now and going forward.  I have done my best to sift through the correspondence, video tapes, session notes and affidavits, to discern key themes and make some sense of the voluminous information put forth in this case.  My comments represent my best attempt at a fair distillation of all of these data points.

47.  On reviewing the file, prior to appointing Dr M, I had become concerned at the ever growing number of potential witnesses and the fact that there was a great deal of “he said, she said evidence”. For every statement or affidavit filed by the father, who cited incidences of the mother’s so called inappropriate behaviour, there were other statements filed by the mother which countered this. For example, attached to the father’s 4^th affidavit of the 29 March 2011 were statements from people that the mother had worked with prior to giving birth to C namely Ms N S, her daughter Ms U S and a former work colleague and acquaintance Ms L L. These statements are quite damning. In order to counter these the mother had filed statements from a number of other people that she has worked with over the years (see the letters from Mr K J P who is a partner in a law firm, the Director of a Clinic and a Director from one arm of Catholic Charities). In my view it was going to prove impossible to hear from all of these potential witnesses. Consequently in the interests of case management I directed that each party be given the opportunity to call 3 witnesses in support of their case and no more. None of the other potential witnesses were called. Therefore their evidence and that of the other potential witnesses has not been challenged. The difficulty however is that Dr M has relied on these statements in part when forming her own assessment of the situation. Ms Rattigan also argues that because Dr L received copies of statements from the father prior to the filing of her first report that she and Dr M have approached this on the basis that the mother has a “problem”. This is not accepted by Dr M who says that she has been completely open in coming to this case and indeed has nothing to benefit from favouring one party over the other. I accept what Dr M has said in this respect.

48.  In her report she said as follows:

From what I can gather in all the information I have reviewed, MS. C has had a history notable for being in significant conflict with others and feeling victimized by others’ incompetence.  Of note, is that MR. C’s affidavits come from a disparate group of individuals who have known MS. C across situations and time, who don’t have any contact with one another, and yet who all indicate a level of vitriol to her anger that has left a major impression on them of their experience of her. They all describe a tendency for MS. C to express derision and contempt for select others.  From what I can gather, it seems she is particularly at risk for this when she is dealing with someone who she has to work closely with (e.g. a domestic helper/nanny/driver/co-worker/ boss) or a friend or family who she has felt unsupported by.  This being said, however, she is certainly capable of forming positive relationships with others that are spared this interaction, as evidenced by her friends here in Hong Kong, some previous colleagues, and her family members, and of course much of the time, her husband.  In these relationships people experience MS. C as engaging, friendly, loving, smart, witty, and wholly appropriate.

As a parent, by most accounts, and by what I can tell from my discussions with MS. C, she is a highly engaged, dedicated, concerned, loving, and involved parent.  She has been the primary caregiver of C, and has worked hard providing C with guidance, healthy food, social time, fun, education, and affection.  It is clear to me that she has invested an enormous amount of effort into her role as a parent. She describes many appropriate ways of managing C.

It appears that when MS. C is feeling robust and there are no immediate stressors, she is able to be caring, engaging, compelling and reasonable with others.  It seems though that when she experiences stressors, and has some level of emotional fragility through depression, that she is most at risk of feeling persecuted by others (or from her perspective, beleaguered by their incompetence) and being more volatile in her anger.  From what I can tell from sifting through all of the reports, it seems that MS. C can inaccurately perceive others as being against her (the building guards, the help staff, co-workers, etc.).

Unfortunately, when one perceives others as being against them and then acts as if this were true, the thought often becomes a self fulfilling prophecy and results in the alienation of others and acrimony.  Quite often, the tendency to have more paranoid/persecutory thoughts about others when under stress is compounded by a lack of insight or inaccurate viewing of one’s impact on others.  This is what I believe is happening for MS. C during these times of acute stress.

49.  She concluded that as at the 27 June 2011

MS. V C (nee VDM) current status

Currently it appears to me that MS. C is exhausted, irritable, overwhelmed, emotionally fragile, and suffering from a clinical depression, with some features of a more long standing borderline personality disorder.  She describes that she has had persistent and profound sleep disturbance for the past five years (in large part started with the post natal nightly feeds of C), exacerbated now by staying up until 3am each day to work on the Court proceedings.  It sounds like she has never received treatment for the sleep disturbance, for ‘lack of time’.  When I asked why she did not seek immediate medical care for her sleep deprivation, given its devastating consequences to functioning and emotional state, she said she would not as she believed that MR. C would ‘use this against her’.  It should be noted that since I discussed this with her and urged her to get help, she has gone to get care from her GP, and has been prescribed an antidepressant.

50.  In her Conclusions and Recommendations she states as follows:

1. MR. C does not appear at this time to be suffering from a psychiatric illness.

2. MS. C appears to be suffering from a Major Depressive episode, and demonstrates features of Borderline Personality Disorder.

3. MS. C’s illness does not present an imminent threat to C’s safety, but it does impact her ability to expose C to a consistently emotionality stable environment and may interfere in her ability to co parent without acrimony.

4. While I do have some long term concerns about overall stability and parenting, this doesn’t preclude MS. C from being an effective parent capable of meeting C’s needs in the long run as long as her mood lability is effectively managed.

5. MS. C would benefit from immediate appropriate psychiatric treatment, with both medication and therapy, to address her mood lability, negative perceptions of others, and to deepen insight about her impact on others.

6. There be a review of MS. C’s status after 6 months to assess whether the treatment has resolved her mood disturbance, and ameliorated the breakthrough signs of any personally disturbance.  This review should also be done in tandem with a review by Dr. L to assess how C is doing in whatever new parenting arrangement is determined.

51.  The mother said that she was shocked by this report, but that she took what Dr M said seriously. It was directed, after the first tranche of the trial, that the mother would have therapy with a psychologist from the States with appropriate back up from Dr B.  She initially sought advice from a specialist in the United States, Dr G and flew out to see him. Dr G said at first that he would be able to assist but then said that he was unable to do so because of “personal reasons”. The mother then approached Dr K, who also said that she would be willing to help, if the mother was in B. Ethically she did not feel that it was appropriate to be the mother’s psychologist if the treatment was to be effected “long distance”. The mother also saw her GP and started taking anti depressants for what Dr M had described as a “major depressive episode”. The mother also saw Dr B for therapy. Dr B was shown a copy of Dr M’s report and began her treatment of the mother with that in mind. However, as will be seen below, she says that it quickly became clear to her that the mother did not have a borderline personality disorder – or features of the same.

52.  There was much discussion during the trial of what was meant by the term “features of a borderline personality disorder.” Both sides have referred me to DSM-IV – the Diagnostic and Statistical Manual of Mental Disorders. This states as follows:

Diagnostic criteria for

301.83 Borderline Personality Disorder

A pervasive pattern of instability of interpersonal relationships, self-image, and affects, and marked impulsivity beginning by early adulthood and present in a variety of contexts, as indicated by five (or more) of the following:

(1)    frantic efforts to avoid real or imagined abandonment.  Note: Do not include suicidal or self-mutilating behaviour covered in Criterion 5.

(2)    a pattern of unstable and intense interpersonal relationships characterized by alternating between extremes of idealization and devaluation

(3)    identity disturbance: markedly and persistently unstable self-image or sense of self

(4)    impulsivity in at least two areas that are potentially self-damaging (e.g. spending, sex, substance abuse, reckless driving, binge eating).  Note: Do not include suicidal or self-mutilating behaviour covered in Criterion 5.

(5)    recurrent suicidal behaviour, gestures, or threats, or self-mutilating behaviour

(6)    affective instability due to a marked reactivity of mood (e.g., intense episodic dysphoria, irritability, or anxiety usually lasting a few hours and only rarely more than a few days)

(7)    chronic feelings of emptiness.

(8)    inappropriate, intense anger or difficulty controlling anger (e.g., frequent displays of temper, constant anger, recurrent physical fights)

(9)    transient, stress-related paranoid ideation or severe dissociative symptoms

53.  Thus in laymen’s terms, although Dr M accepted that the mother did not have five or more of the stated categories set out above, in order to be diagnosed as having a border line personality disorder, she was nevertheless of the view that the mother exhibited certain behaviours which were of concern, and were in line with some of the nine categories identified.  

54.  In her updated report dated the 11 February 2012 Dr M concluded that

Concerns about MRS. C’s level of insight

I continue to have concerns about what I view as MRS. C’s lack of insight into her role in conflict and her impact on others.  While MRS. C’s overall mood has improved by all accounts, MRS. C’s personality disorder thinking patterns (or which she shows the features of BPD more than any others) have not changed.  It is these thinking patterns that will ultimately hurt C if left unchallenged and untreated.  For the sake of clarity, I will summarize the thinking patterns I find most concerning and that could negatively impact C.

The first is the pattern of projection, which leads to affect dysregulation and conflict seeking behaviour.  Projection can be defined as attributing one’s own unacceptable thoughts and feelings or motives to another.  It is a form of paranoid thought and drives extreme judgment of others and perceptions of injustice (so viewing oneself as victim and not perceiving oneself as accountable for situations).  So for example, MRS. C accuses MR. C of being provocative, and to be the main player in pursuing conflict.  For example, MRS. C reported to me that C is independent with her and not with MR. C that he is fostering dependence, and yet my understanding from the child psychologists is that in fact the opposite is the case.

The second, is the pattern of devaluing others.  For MRS. C this seems to happen when she feels threatened or rejected, which leads to contempt for others and verbally deriding others.  People become ‘all bad’ rather than a mix of good and bad.  This is accompanied by a profound lack of empathy.  In so many of the affidavits, and in MRS. C’s own report to me across evaluation sessions, I have heard her deride others and be contemptuous, towards people she has had conflict with in the past, MR. C, his family, domestic staff, and those in the community who have been supportive of MR. C, MRS. C views her judgments of others as simply voicing her value system and telling things as they are.  She misses entirely, however, how her highly emotive expressed judgment impacts others, and her lack of empathy in these situations is striking.  The fact that she did not seek to modify her angry, contemptuous comments about others during the evaluation with myself is in and of itself diagnostic of skewed thinking.  This shows that she experiences no dissonance around this thinking pattern, defends her right to have these perspectives, and disregards the social appropriateness or impact of expressing these views to others.

In summary, my key concern is that MRS. C has not accepted that there are material problems in her thinking that stem from her underlying Personality Disorder condition. This, in light of the concerns the child psychologists have shared with me about MRS. C’s lack of insight, constricted empathy towards C, and signs of attachment issues, underscores the need for further treatment that will help her address these issues so that C is not negatively impacted.

Projection

55.  The difficulty I have with Dr M’s assessment in part is that I also view the father’s actions as being provocative and I also regard him as being the main player in pursuing this litigation. I am very concerned that such an aggressive and litigious approach was taken and that no attempt was made to deal with the matter in a more co-operative and sensible way, especially given the father’s stated concerns about the mother’s mental health. I have been told for example that no attempts have been made at all to settle the case – either prior to the first tranche of the trial or since. It seems to me that it was the father who went on the offensive and not the mother. It was also the father who sourced a whole range of people to speak out against the mother, leaving her with no alternative but to find others who would rally in her support. This does not seem to me to be evidence of paranoid thinking on the part of the mother. Rather it appears to me to be an accurate portrayal of the reality that the mother faced. Given that how should Dr M’s assessment be approached? I accept that on the face of it that the mother seems to have some problems with inter personal relationships and that on occasion, especially when stressed, she finds it difficult to get along with others. I accept that this may have some impact on C. However – certainly in so far as the more recent past is concerned, it seems to me that some of the mother’s reactions are entirely understandable given the prevailing circumstances.   

Devaluing others 

56.  Again my main concern here is that it seems that Dr M has given more weight to the statements provided by the father than the mother. Dr M denied this when giving evidence and said that she had read everything and taken all data points into consideration when coming to her conclusions. She reiterated this in her report. As I have said, in the interests of trying to ensure that this litigation did not get completely out of hand, it has not been possible to hear from all of these potential witnesses nor for me to form an assessment of their evidence. Consequently it is not possible for me to attach any great weight to what they have said given that for every potential witness produced by the father there is another produced by the mother to counter what has been said against her. Even had I had the opportunity to hear from everyone – given the “he said, she said” nature of the evidence it is hard to see how this would have taken matters very much further. Thus although I would accept that there is some evidence of the mother having a tendency to devalue others when under stress – I would put it no higher than that.    

57.  In summary then Dr M accepted that the mother was not suffering from a mental illness – but she was concerned that there were certain personality traits and issues that ought to be addressed. When asked by myself, Dr M accepted that the United States tended to approach the treatment of such issues differently from the United Kingdom. She acknowledged that those suffering from borderline personality disorders or traits thereof, were generally regarded as being very hard to treat in the United Kingdom. She agreed that this case was ultimately about “risk assessment”. She also accepted that it was important that the mother continue to be fully involved in C’s life, given that C was only 6 years old and that she needed her mother. She said that she could not support the mother’s application to relocate. In conclusion she said in her final report that:

Conclusions and Recommendations

1.  MR. C still does not appear at this time to be suffering from a psychiatric illness.  He appears by all accounts and in his presentation to be a reliable reporter.

2.  MRS. C appears to have improved mood and resilience following her course of antidepressant medication and supportive therapy.  As a result, her Major Depressive episode seems to be largely resolved.

3.  MRS. C continues to demonstrate characteristics of a Personality Disorder, with features of Borderline Personality Disorder particularly in her perceptions/ thinking, and to some degree in her mood lability.  MRS. C does not appear to have gained any insight into her disorder and has been further supported in this perception by her current psychologist.  She continues to be entrenched in a perceptual framework that distorts situations that feel threatening to her or that anger her, and assumes persecution, which ultimately will lead to continued conflict and marginalization of MR. C from C’s life.

4. I would recommend that MRS. C’s psychological treatment be reviewed with an eye to appointing a specialist who will provide treatment that addresses her underlying BPD symptoms.

5. I of course defer to Dr. L on any commentary about the impact or implications of MRS. C’s continued psychological issues on C.

58.  In so far as paragraph 3 is concerned, I do not accept that the mother’s “perceptual framework distorts situations” to the extent that that of itself is responsible for the continued conflict in this case. The father’s own approach to this matter has contributed very significantly to the very high levels of conflict in the way in which the litigation has been conducted. Nor do I accept that the father has necessarily been marginalized from C’s life or that there is necessarily any danger of that going forward. (See Dr L’s report).

Dr L’s reports

59.  As I have said Dr L has filed three reports. Her focus throughout has been on C’s psychological well being. Consequently she has also liaised with Dr P – who continues to see C for play therapy once a week.

60.  After the first tranche of the hearing the parties, followed Dr L’s recommendations and a) effected a physical separation and moved into separate apartments; b) entered into an agreement which allowed for C to see each of her parents for part of most days.

61.  Following this she filed an updated report dated the 6 December 2011 which in part also reported back on Dr P’s own observations. She said inter alia as follows: 

Overall, Dr. P feels that C has made improvement in terms of better managing her anxiety and reported the belief that this is related to the physical separation of Mr. and Mrs. C and the continued support the child has received from both of her parents.  C clearly loves both of her parents and has not been observed to display any fear or discomfort while in the care of either parent. Furthermore, Dr. P expressed the belief that given the circumstances, C appears to be coping fairly well with the separation and this can be attributed at least in part to the significant effort of both parents in ensuring that routine are followed and Dr. P’s recommendations implemented.  However, Dr. P noted that trust has broken down significantly between the parties and this may impact their ability to cooperate with regard to C at times, such as during access handover.  C will require continued consistency and stability moving forward in order for her to maintain her calm and stability.

62.  In other words generally speaking, notwithstanding the separation of her parents and the stresses and strains of these proceedings, which are likely to be considerable, C seems to be doing well. This seems largely to be due to the efforts being made by both of the parents.

63.  At the return hearing in March Dr L reported that the constant toing and froing between two households did not seem to be working out for C as well as had been hoped. She recommended that each parent have blocks of time with C, with the father having four days out of every seven as he was “the more emotionally stable parent”.  Dr L did not explain how that might work given the father’s work commitments. She also said that she could not support the relocation application. For both Dr M and Dr L this seems to be based in part on the need for C to have regular contact with both of her parents.

64.  This is revisited in the last report dated the 14 February 2012 when Dr L reconfirmed that C seemed to be doing well and that she was happy to spend time with each of her parents. She added that

Dr. P expressed the opinion that given the significant bond, C requires both parents on a consistent basis in her life in order to remain well adjusted moving forward. She noted that it would be best for C if both parents were within the same geographical location as physical separation from one or the other parent will be very traumatic for her.

65.  Notwithstanding the fact that C seems to be doing well, Dr P expressed various concerns including the fact that she thought the father might be marginalized if the relocation was permitted because:

She has witnessed a recent change in C’s play themes during her therapy sessions, and noted that while C was previously careful to make two sets of any craft she would present to her parents, she is now placing more detail into gifts for her mother and spending less time on the ones for her father.  Dr. P interpreted this to mean that C is anxious to provide her mother with affirmation of her love and this is generally related to emotional insecurity.

66.  Dr L was asked by the mother’s counsel if this might be simply because C was missing her mother given that she is not now living with her on a full time basis? Dr L thought not – although it seems that this might be an equally valid explanation. Dr P also thought that the father was a more stable and nurturing parent than the mother and that the mother could be very “negative”. She confirmed that the present schedule was 

... very challenging and tiring for C.  Given her young age and the amount of transitions she must adapt to each week, she recommended dividing time between parents differently, perhaps in blocks of days.

67.  In conclusion she said as follows:

By all accounts, C is coping exceptionally well with the separation of her parents.  She is flourishing in school and has been noted by various individuals to have developed a stronger sense of independence and confidence since the separation of households.  C has demonstrated herself to be a very resilient and adaptable child.  However, there are a number of significant concerns arising from the current situation that need to be addressed as a priority regardless of her resilience, as her innate resilience will not be sufficient to protect her if they are not adequately resolved.

68.  Dr L then went on to express the same concerns as Dr M with respect to the mother’s psychological well being. She said that 

Mrs. C appears to have either misrepresented or distorted a number of issues raised during this evaluation (such as circumstances surrounding when she learned of C’s fall from a horse, the Christmas Cantata, gymnastics, Mr. C’s refusal to switch access dates, etc), instead suggesting that Mr. C is solely responsible for escalating conflict.

69.  Although I accept that the mother did misrepresent or distort some of these situations e.g. C did tell her that she had fallen off the horse, there seemed to be no consideration here of the father’s role in the nature of the proceedings themselves. She added

Dr. P has further expressed concerns regarding Mrs. C’s ability to monitor her own behaviour/comments while in C’s presence, and also raised concerns given signs that she may be marginalizing Mr. C’s role in C’s life.  The undersigned shares these concerns, and various comments made by Mrs. C suggests that she feels her own happiness supercedes C’s right to have an ongoing daily relationship with her father.  In light of the strength of that bond (and Dr. P’s report that C will suffer emotional harm without continued and frequent contact with both parents).  Mrs. C’s unilateral decision-making and tendency to place her own needs above those of C suggest a continued lack of insight as well as a lack of empathy for C and the grief she will experience following removal.

70.  There was no discussion here of whether or not the father’s refusal to relocate back to B as originally planned also meant that he was putting his own needs infront of C’s nor was there any acknowledgment of the huge sacrifice staying in Hong Kong would mean for the mother. Dr L went on to say that

A consistent theme of great concern among involved professionals relates to the relationship between Mr. C and C should removal be granted.  It is felt that behaviours to date suggest that Mrs. C will likely continue to diminish the importance of Mr. C in C’s life, and that will be devastating to her well-being.  There have already been signs of this with examples including:

· Mrs. C unilaterally deciding to enrol C in summer camp

· Mrs. C unilaterally deciding on C’s school in B

· Mrs. C unilaterally deciding on care for C through the trial

· Mrs. C’s statements that C will not be distraught over leaving her father

· Mrs. C’s statement that she feels discussion with C about Mr. C remaining in Hong Kong after they leave is too much detail at this point in time, although there appears to have been detailed discussion surrounding school, friends, and possibly living arrangements in B.

71.  This list is of some concern – given that generally speaking it highlights rather minor things. For the avoidance of doubt it seems to me that the mother, as the caretaking parent has historically been the one to take the lead on things like a) which summer camp C should attend and b) her day to day care. The father acknowledges this when he gave evidence when he said that he had been told that he would need to step up a bit. I do not accept that the mother has unilaterally decided on which school C should attend in B. Proposals were made and perhaps understandably given the stage of the proceedings, the father chose not to participate fully in the discussion. Generally I do not accept that there is any significant evidence to support the notion that the mother has or that she will diminish the importance of the father in C’s life going forward.    

Dr B

72.  Dr B filed a report dated the 14 February 2012 in which she advocated strongly on behalf of the mother. When asked during the examination why she had done so – she replied that

And yes, I am being her advocate in that I do not believe her mental health is at issue or should be at issue, …

It’s not that I don’t think there is stuff that’s questionable.  It’s that I think, as I said, everybody has some stuff that’s questionable. … Overall I don’t think there is anything that is happening that is – that rises to a level of danger or neglect or abuse or a mental illness.

73.  In short Dr B did not support Dr M’s diagnosis. She said

I have seen no significant behaviours or ideations that would support this diagnosis.

74.  In order to make sure the mother also underwent the MMP1-II test (the Minnesota Multiphasic Personality Inventory II), which Dr B said supported her own conclusion – i.e. that the mother was not suffering from any psychological problems. When Dr M was asked about this test, she said that this was not a test that would be used in her circle for these types of issues.

75.  In addition Dr B watched the CCTV coverage. She said

The third part of this report is an analysis of the CCTV coverage provided as part of this litigation.  This coverage is astonishing for what it does not contain:  The allegation has been made that Ms. M is “screaming constantly” and that she is “out of control” emotionally.  Yet despite six months of CCTV coverage, there is not a single instance that shows Ms. M screaming.  In fact, there is no moment in which she has even raised her voice, and there is certainly no time when she seems to be emotionally dyscontrolled.  If anything, we see her often “dropping the subject” at times that most people would be tempted to continue an argument.  This is entirely inconsistent with BPD.

As will be seen I largely agree with Dr B’s assessment of the CCTV coverage.

76.  In so far as the basis for diagnosis is concerned, Dr B went through the nine categories for borderline personality types identified by the DSM-IV – to which Dr M had referred. She said

16. Having examined the nine possible diagnostic criteria and whether they may be applied to Ms. M [the mother], it is clear that she does not come anywhere close to meeting the diagnostic criteria of five symptoms.

17. It is important to note that all of us, every person in the world, has some of these behaviours some of the time, particularly in stressful situations or with those whom we do not like or trust.  However, it is clearly specified that a personality disorder is pervasive and enduring, and that behaviours deviate markedly from the expectations of one’s culture.  There simply is absolutely no evidence that this is the case for Ms. M, and there is strong evidence that she has functioned very well and with great patience and calm across a number of different social and professional situations.

18. It is extremely important that diagnoses such as BPD not be applied because a person is disliked or because one person is favoured over another.  BPD is a mental disorder that designates a high level of dysfunction, a level that Ms. M simply does not meet in any way.

77.  In so far as the MMP1-II test was concerned she reported that

This MMPI-2 result does not support a diagnosis of BPD, anger control difficulties, or any other significant mental health issue.

78.  In conclusion Dr B added:

39.   It is my opinion based on her therapy, psychological testing, and a thorough review of the CCTV tapes and testimonies, that Ms. M is in no way psychologically impaired.  She is not currently depressed.  It should be noted that she is taking antidepressants, and this medication may have effectively treated a previous mood disorder. However, she also concurrently moved out of the house she was sharing with her divorcing husband and has in many ways alleviated what was previously severe and consistent stress.

40.   I believe that this case should be adjudicated without regard to Ms. M’s mental health as a matter of primary concern.  Nonetheless, given the high level of stress that she has experienced this year, Ms. M has endeavoured to continue therapy when she moves to the United States and has located and spoken to a therapist there in anticipation of a possible move.

41.   ......

42.   It will be very beneficial to Ms. M’s mental health to have privacy of person including the ability to manage such things as her own health care and finances, without her ex-husband having access to that information.

43.   I strongly believe that custody disputes should not involve personality contests or even measures of which parent will be the “better” parent.  Absent abuse, neglect or mental illness, it seems to me that holding parents who happen to be divorcing to a different standard than we hold other parents is unreasonable and intrusive.  In this case, there is no real evidence of mental illness, no abuse, and no neglect.  Both parents are reasonably good, nurturing, caring and competent.  There has been CCTV evidence of both parents being excellent at times, and no evidence of abuse from either parent.

44.   That being said, all records indicate that C’s primary caregiver for all of her life thus far has been her mother, and the two are very closely bonded.

45.            It is my strong belief that Ms. Mr should return to the United States: She did not intend to move here to begin with, she is very much attached to her family and the customs of her country, her professional degree and career are only applicable to the United States…

The CCTV coverage

79.  I told the parties that I would watch the CCTV clip that they had concerns about. I have now done so. The difficulty generally with these clips is that each side has put their own slant on them. They have been further analyzed by the experts/witnesses – who have also interpreted them differently. If the mother’s primary object was to obtain evidence to counter any possible application by the husband for an ouster application – then, as I have said, she was successful in that. There is nothing in these clips that would support such an application.

80.  I am also mindful of the fact that the clips I have witnessed are snap shots of the parties’ lives together with C. They cover a period from March – September 2011. The litigation had begun a few months earlier in the manner described above. The mother was suffering from a major depressive episode and was sleep deprived. Given all of that I was struck, as others have been, by the lack of anything of any real note. Dr B has described the clips as showing “these really benign situations”. I tend to agree.

81.  What I do see is two parents trying their level best to parent their child in very difficult circumstances. To the untrained eye there is nothing to suggest that either parent is suffering from a mental illness of the magnitude that would prevent them from having a full role in their child’s life going forward. Occasionally one parent slips and says or does something that is unfortunate e.g. the mother denies C dessert because it is late. C has been playing with Dad. Perhaps this has annoyed the mother? In any event the mother suggests that C should have had dessert previously i.e. during the 25 minutes that she has been playing with Dad. The night before we see her giving C a bowl of something at around the same time in the evening – c 7:30 pm when the father is reading C a bed time story. The point of course is that this is inconsistent parenting. Likewise we see the father becoming overly emotional and involving C in a situation when he claims that the mother has locked her bedroom door with C inside. He escalates the situation and involves C in a way which is inappropriate. This is against a background where concerns had been expressed by the father about the mother locking C inside her room.

82.  C is generally seen to be dealing with a complex situation involving adults that she loves, extremely well. She is clearly bright and you see her at times trying to diffuse a situation or to deal with undercurrents that she does not fully understand (and should not be expected to understand), in a rationale way. (E.g. “so that’s the Golden Rule”).

83.  Generally though, both sides parent C, in the CCTV coverage, in a perfectly acceptable way. Neither parent is perfect – but each is a perfectly adequate parent. Perhaps most importantly C is clearly bonded to both. I was struck in particular by part of the clip of the 18 July 2011 – where the parties are having dinner together. The father is upset because C would not greet him when he came in (mainly it seems because she is engrossed in an activity with her mother. I do not accept the suggestion that there was any deliberate attempt to alienate the father from C in this clip). C serves the food to both parents. She smacks her father’s hand in a “low 5” – notwithstanding the fact that she is apparently still cross with him. Mother hands father a napkin. It is all completely normal. A family of three who were having dinner together.

84.  Both sides have interpreted events depicted in these clips in ways which have at times suited their own purpose and which were later shown to be false. The father’s description to his lawyer of the events of the 19 March was clearly incorrect and exaggerated. Likewise the mother’s claim that she had not been told of the horse riding incident on the 14 August was also incorrect. I could go on.    

Conclusion

85.  It is true that after the first tranche of the trial that I said that I accepted unequivocally the evidence of Dr L and Dr M and I gave directions accordingly. It is also of course true that this was said half way through the trial and before I had had the opportunity to hear from the parties themselves or indeed from Dr L and Dr M for a second time, nor had I had the opportunity to hear from Dr B. In addition I had not read the parties closing submissions or observed the CCTV clips for myself. My initial view – was just that – an initial view. Having now heard from all of the witnesses and having read all of the evidence I tend to agree with Dr B that it cannot be said that the mother is mentally ill – especially given the fact that she has not been diagnosed with having a mental illness as such, simply, putting it at its highest, as having features of the same. There is no sense at all that she is a physical danger to C. The suggestion is that she may however be a psychological threat to her daughter’s well being and to the father daughter relationship. Again this threat does not seem to me to be a very significant one. She may not be a perfect parent, if indeed such a thing exists, but she is certainly a good enough parent – as is the father. I accept that there have probably been occasions in the past when her behaviour has been a cause of some concern. Likewise the parties have both behaved badly at times during the course of this litigation. As I have already said the father’s litigation approach generally is not to be encouraged. It would also be helpful if the mother were to continue to have therapy with a suitable professional going forward. A Dr C has been identified as being such a person. The mother has said that she is willing to have therapy.  I will hold her to that by way of an undertaking. She should continue to see Dr B while she is in Hong Kong.

The social welfare reports

86.  Recommendations made to the court in social welfare reports, although not binding are considered persuasive. In the event that the recommendations are not followed reasons should be given for that in the judgment. In this instance it should be noted that the first report was filed early on in the litigation – i.e. on the 7 March 2010. The second report followed on the 19 August 2011, just before the first tranche of the trial began. Ms Y, the social welfare officer, gave evidence in the first tranche of the trial. She recommended as follows:

31. Both Mr C and Madam M were caring and devoted parents while C had maintained strong bond with both of them.  Similar to the recommendation as stated in our Social Investigation Report dated 7 March 2011, as Mr C and Madam M were both observed to have given C security, emotional support, love and care that would be essential to meet a child’s various developmental needs, joint effort of the parents would surely be beneficial to the child.  While Mr C had increased his capacity to take care of C and more involved in the activity of C while Madam M was willing to attend to her mental health, the care and control would be best to be shared between them so that the parents could still maintain the strong bonding with C who was very attached to them.

32. In view of the foregoing, the Social Work Officer would like to recommend that custody, care and control of the child, CGC be granted to the Petitioner, Mr C and the Respondent, Madam C jointly with detailed arrangement to be worked out between them.  The child was recommended to be relocated when Mr C would return to the USA.

As will be seen below - I largely agree with Ms Y’s recommendations.  

The character of the parties

87.  In all cases concerning children it is important for the judge hearing the case to see the parties in the witness box in order that he or she may form some view of them for him or herself. This case is no exception.

The father

88.  The father was softly spoken and has a gentle outward demeanour. At times this was displaced and I was struck by the fact that he seems quite steely. He is clearly a bright man and as one might expect from a CEO, he seems used to being in a position of authority. In so far as C is concerned I have no doubt that he has been as involved in C’s life as it has been possible to be, given that he has an exacting full time job which also requires regular overseas business travel. I am sure that he is a good “Dad” to C and that they love each other deeply. 

The mother

89.  Much has been said about the mother’s personality in these proceedings. She certainly came across as being extremely forthright. She became visibly annoyed on several occasions during her cross examination. Like the father she also came across as being an extremely intelligent person. She is very articulate and I would expect her to become a very good attorney in due course. I would also accept that she probably does have a “vicious” tongue and to use the vernacular - that she calls “a spade a shovel”. She accepts that she would never win a “Miss Congeniality Contest”, but says that she is a good mother to C. I accept that to be the case. I am sure that she and C also love each other deeply.       

Should permission be given for C to leave Hong Kong in order to relocate to B, USA with her mother?

The Law on Relocation

90.  There has been much debate on the legal principles relating to relocation applications since the English Court of Appeal decision in MK v CK [2011] EWCA Civ 793. This challenged for the first time the principles first enunciated in Poel and later developed in Payne. There has also been discussion on what that might mean from a Hong Kong perspective. I have referred to this in some detail in two recent cases namely BWBP v T-KP nee DP (Relocation), FCMP 2128 of 2009 dated 1 February 2012 unreported and YY v CHOA (Relocation), FCMP7598 of 2010 dated 9 November 2011, unreported. In the former I commented on the different analysis of the law as identified by Thorpe LJ and Black LJ and said.  

33. In either event it seems clear that both of the Court Appeal Judges acknowledge that in the event that there is not one primary carer and the day to day care of the children is genuinely shared between two committed parents, that there should be a difference of emphasis or approach when considering the case. I agree.

91.  This point was picked up by Ms Irving in her closing submission for the husband when she said that

The “Payne” principle was recently received in the English Court of Appeal in MK v CK. Whereas this was argued partly on the basis of whether the child’s care arrangement was one of “shared care” as in Re Y, it was said clearly in this case, more loudly by Black LJ and Moore-Bick LJ than by Thorpe LJ, that Payne is guidance, not a principle of law from which no departure is permitted.

92.  This is accepted. However, by the same token regard must also be had to our most recent Court of Appeal decision on this topic namely SMM v TWM (Child Relocation) [2010] HKLRD 37, which states that the principles in Payne are to be generally followed in Hong Kong. I accept that this must be the case where there is not a genuine shared care arrangement.

93.    Although this was not seriously argued by the father, for the avoidance of doubt, it seems to me that given that C has been primarily cared for by the mother since moving to Hong Kong that it follows that this case falls squarely in the more traditional approach to relocation cases. The father is now more involved in C’s day to day care by virtue of the interim order following the first tranche of the trial in August 2011 as referred to above. This was a practical response to the situation that the parties found themselves in, namely a trial that was taking longer than anticipated and which had necessitated a six month adjournment. Consequently, and for the avoidance of doubt, I do not accept that this is a genuine shared care arrangement as identified in MK v CK. It was simply a short term arrangement that was put in place with the assistance of Dr L in order to provide C with a sensible parenting structure during the six month adjournment.    

94.    In Payne, Lord Justice Thorpe said as follows:

(40). … To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother’s proposals are necessarily compatible with the child’s welfare I would suggest the following discipline as a prelude to conclusion:

 i. Pose the question: is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life.   Then ask is the mother’s application realistic, by which I mean, founded on practical proposals both well researched and investigated?  If the application fails either of these tests refusal will inevitably follow.

 ii. If however the application passes these tests then there must be a careful appraisal of the father’s opposition; is it motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive?  What would be the extent of the detriment to him and his future relationship with the child were the application granted?  To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?

 iii. What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?

 iv. The outcome of the second and third appraisals must then be brought into an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate.

In suggesting such a discipline I would not wish to be thought to have diminished the importance that this court has consistently attached to the emotional and psychological well being of the primary carer.   In any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor.”

The President, Dame Elizabeth Butler-Sloss, also added the following helpful summary:

(85) In summary I would suggest that the following considerations should be in the forefront of the mind of a judge trying one of these difficult cases.   They are not and could not be exclusive of the other important matters which arise in the individual case to be decided.   All the relevant factors need to be considered, including the points I make below, so far as they are relevant, and weighed in the balance.   The points I make are obvious but in view of the arguments presented to us in this case, it may be worthwhile to repeat them.

(a) The welfare of the child is always paramount.

(b) There is no presumption created by section 13(1)(b) in favour of the applicant parent.

(c) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.

(d) Consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.

(e) The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.

(f) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.

(g) The opportunity for continuing contact between the child and the parent left behind may be very significant.

(86) All the above observations have been made on the premise that the question of residence is not a live issue. If, however, there is a real dispute as to which parent should be granted a residence order, and the decision as to which parent is the more suitable is finely balanced, the future plans of each parent for the child are clearly relevant. If one parent intends to set up home in another country and remove the child from school, surroundings and the other parent and his family, it may in some cases be an important factor to weigh in the balance. But in a case where the decision as to residence is clear as the judge in this case clearly thought it was, the plans for removal from the jurisdiction would not be likely to be significant in the decision over residence. The mother in this case already had a residence order and the judge’s decision on residence was not an issue before this court.

95.    In reality, as case law has developed in England and Wales, the emphasis has been on the guidance provided by Lord Justice Thorpe as opposed to that provided by Dame Butler-Sloss. This tendency has been followed in Hong Kong.

96.    I should add that given that this is an expatriate case that the other point worth highlighting can be found in F v H (Children: relocation) [2008] 2FLR 1667 where it was held that

(1) The bar as to practicalities to be jumped by a relocation applicant was set at a wide variety of heights depending on the facts and circumstances of the case. In this commonplace category of cross-border family creation in which the primary carer was returning to a completely familiar environment the bar was set considerably lower than in the case of an applicant who in pursuit of some dream or ambition was proposing to take the children to an unknown and untried environment.  The bar was set particularly low if the primary carer was returning, as in this case, to a completely familiar home after a brief absence

97.    In this case it is clear that the mother wishes to return “home”. She is therefore returning to a “completely familiar environment”. I accept therefore that prima facie the bar should be set at a low level.

98.    Ms Rattigan has also referred me to a case decided by my brother Judge – HH Judge Bruno Chan in M v B (Removal of Children from the jurisdiction) [2009] HKFLR 349, where it was held that the mother should be able to relocate to Australia with the two children of the family.

99.    In that case, as here, the Judge was charged with balancing the different options, one against the other, and deciding ultimately what was in the best interests of the children of the family at that particular point in time. I will engage in the same exercise in this judgment.

Discussion

Are the proposals genuine or are they made with the intent of bringing contact between father and C to an end?

100.   The mother wishes to relocate back to B. She is an ex patriate. She came to Hong Kong at the behest of the father for a period of between 3 – 5 years. There was never any sense that this was to be a long term or permanent move. The marriage has disintegrated in quite spectacular fashion and the mother has had a major depressive episode from which she now appears to be thankfully recovering. I accept that her proposals are genuine in the sense that she wishes to return home and to settle in B. She wishes to re-establish her career as an attorney – something that is not possible in Hong Kong. She wishes C to be brought up as an American and to experience all that that might mean from a cultural perspective. She wishes to be in closer contact with her family. In an ideal world she would like the father to also relocate back to B so that they are able to “figure out” a way to continue to effectively co parent C in the future. I do not accept that in doing so that she wishes to distance C from the father with a view to excluding him from C’s life going forward – although the father clearly fears this. Rather as will be seen below, the sense one gets from the evidence is that the move back to B is simply about returning “home”.

Is the mother’s application realistic – i.e. founded on practical proposals both well researched and investigated?

101.   The mother has filed several detailed affidavits in which she sets out her practical proposals for the move back to B. She intends initially to live with her mother, who gave evidence on her behalf, and to settle C into school. The maternal grandmother lives in a property with a self contained apartment attached. The mother and C would live in that apartment. Eventually the mother would hope to purchase her own property. She has identified several schools in the area and has an offer of at least one school place. The father complains that he was not properly consulted. The mother says that he has refused to engage with her on this issue. In either event this is something that can be considered again at a later date if necessary. The mother intends to worship in a local church and to return to work once C is settled, probably for a non profit where it is possible to work regular hours. Her mother would assist with child care. The mother has made sensible proposals for access.   

What is the basis of the father’s opposition? Is it motivated by a genuine concern for the child’s welfare? Is there some ulterior motive?

102.   The basis of the father’s opposition has been his stated concerns about the mother’s mental health. I remain sceptical however about the way in which the father has chosen to conduct these proceedings. I am concerned that the father’s overly litigious approach was partly because he wished to obtain sole custody and care and control of C, almost at any cost. 

What would be the extent of the detriment to him and his future relationship with C?

103.   The father’s agreement with his company was initially for a three year period, with the possibility of a further extension of two years. Thus in the normal course of events the parties might have expected to return to B in March 2011 at the earliest and in March 2013 at the latest. The father now says that he may be required to stay in Hong Kong for longer period because of succession difficulties. Although that may be true there appears to be little doubt that the father will return to B in due course. If he were to do so sooner rather than later then there would be no or very little perceived detriment to him and his future relationship with C. In the event that he is unable to do so I accept that his absence from C’s day to day life would be a significant blow to her. 

To what extent would that be offset by the extension of the child’s relationship with the maternal family and homeland?

104.   C appears to have a close relationship with her maternal Grandmother and Aunt, both of whom gave evidence on the mother’s behalf. C told her Aunt, Ms T that she was “the saftiest” of all the adults. I take it from that that she feels safe and secure with her Aunt. This is to be encouraged. As I have said C seems a very bright and empathetic little girl.

What would be the impact on the mother if the relocation is refused?

105.   I accept that the mother would be devastated if her application was refused longer term.

What would be the impact on the father if the relocation is permitted?

106.   Although the father says that he would also be devastated it seems to me that he should be in a position to ensure that his own relocation is possible within a reasonable time frame.

Conclusion

107.   Given all of the above I agree that it would, if possible be in C’s best interests if both parents were in the same geographical location as each other. Although I accept that the mother is not suffering from a mental illness, clearly there are some psychological issues that will need to be addressed on an ongoing basis and the mother will need some form of continual psychological support. She is getting that support at present from Dr B and as stated above I will expect her to continue to receive therapeutic support in B. C is close to both parents. They are both able to effectively parent C – although I accept that it is the mother who has until very recently been the full time caretaking parent. The father has taken on a bigger role since the first tranche of the trial in August with the assistance of his sister, Ms C and his domestic helper. Going forward both parties will need to rely on third parties to assist in child care.

108.   Having weighed up all the pros and cons, I will allow the mother’s application – but this shall only take effect from the end of March 2013. As I understand it this should also coincide with the end of the spring term at school. The mother will therefore have permission to relocate back to B with C with effect from the 28 March 2013. I wish to give the father every opportunity to try to relocate back to B within the same time frame as the mother. It is at the end of the original term anticipated in the letter of offer – so it should not be outside the realms of possibility that this might infact be an option. In the event that the father is unable to return to B then the mother should be allowed to relocate with C in any event. She cannot be expected to wait for the father indefinitely.

109.   It seems to me that had I refused the mother’s application outright that she would have been left in an untenable position. She would have been expected to remain in Hong Kong with no reasonable prospects of employment. She would be completely dependent on the father financially. The parties would be sharing the care of C, but other than that she would have no other reason to remain in the territory. Although she has friends here there is no doubt that she lives in an ex patriate world. I posed the question during the trial – what would happen if the father was posted to somewhere else overseas? Would the mother be expected once again to follow the father so that he could have frequent and regular contact with his daughter? If so how would that work? All kinds of issues flow from this. I was told that this was a highly unlikely scenario given that the father would almost definitely be returning to B. If so it seems to me that every effort should be made to ensure that this happens sooner rather than later. Thus I accept fully the recommendation made by the Social Welfare Officer. It is also the solution suggested by others including the mother’s family members.         

What orders should the court make for custody, care and control, access/shared care?

The law

Custody, Care and control, access and shared care

110.   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;

111.   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).

112.   Case law has developed over time and the most recent and authorative explanation of the terminology used in our courts can be found in the Court of Appeal decision in PD v KWW, Civil Appeal No 188 of 2008, 9 June 2010. Given the international nature of this case it seems to me that it might be helpful if I quoted this explanation in full. In it the Hon Mr Justice Hartmann, JA, said 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.

34. The mother seeks sole custody because, to use her words, she wants to leave behind the conflict that has marked her relationship with the father since the breakdown of the marriage and wants to be left in peace to be able to raise the child as she thinks best, that is, to be able to determine such matters as the child’s education, religious upbringing and choice of activities free of any disturbance from the father.  She is happy to let the child spend time with the father and is happy to keep the father informed of matters relevant to the child’s well-being but she wishes to reserve absolutely to herself the manner of her child’s upbringing.

35. Equally, the father fears being deprived of joint custody because it is his view that society will perceive that he has thereby forfeited the rights and responsibilities of a father, being left only with the residual right to spend time with his daughter and the residual responsibility of making a financial contribution to the cost of her upbringing.

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. There was a time when the parents of a child, more particularly the father, had almost absolute authority over that child.  That is no longer the case.  The principle that the best interests of the child – not the authority of the parents – must be the paramount consideration is today almost universally recognized.  As Lord Fraser said in Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1986] AC 112 at 170:

“… parental rights to control a child do not exist for the benefit of the parent. They exist for the benefit of the child and they are justified only in so far as they enable the parent to perform his duties towards the child.”

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.

48. In the United States, for example, shared custody is common.  The courts routinely grant joint custody orders unless one parent is clearly found to be unfit.

49. In England and Wales, the Children Act 1989 has sought to emphasise the continuing parental responsibility of both parents even if an order has been made that the child will reside with only one of them.

50. Other common law jurisdictions – for example, Australia – have made legislative changes to similar effect, that is, where appropriate, to ensure the continued active involvement of both parents in the upbringing of the child, or children, of their marriage.

51. The Hong Kong Law Reform Commission Report on Child Custody and Access of 2005 recommended changes in line with the Children Act 1989 but regrettably, to date at least, little appears to have been done to give the Commission’s recommendations legislative form.

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.

113.   Thus it is generally accepted that joint custody means that the parents should in an ideal world be able to make the major decisions concerning their child’s life together. Sometimes orders for joint custody are aspirational, as in the first instance decision in PD v KWW.  The orders are made in the hope that the parties’ will be able to work towards co-operating with each other in the future. Joint custody orders are also sometimes made in part so that each party’s role in the child’s life going forward is clearly identified. 

114.   Shared care is also developing as a concept. In H v H CACV No 42 of 2002 the Court of Appeal first upheld an order for “shared care”, made by Hartmann J as he then was, commenting as it did that

The expression ‘care’, however it is used in these orders shall mean care and control and shall mean that the child shall stay with the parent into whose care and control she has been given”. And later

As to custody, care and control:

(1) Custody of the child shall be vested in the father. The mother shall have no rights of custody.

(2) Care of the child shall be shared between the father and the mother. This shall be done in the following manner:

115.   The Judge then set out in detail how that care was to be shared. There was no order for access per. The parties were effectively splitting the child’s time in the way set out in the order. Judges have continued on occasion to make orders for shared care as opposed to orders for care and control and access. In the case of RWS v KCC, FCMC 9661 of 2010 unreported I made an order for shared care as it seemed to me that this more accurately reflected the reality of a parallel parenting regime. In doing so I commented as follows:

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.

Custody 

116.   Ms Irving for the father says that this is not a case where a joint custody order can be entertained. She says that an aspirational order would simply not work. With respect I do not agree. The mother’s problems have never been of such a magnitude that a sole custody order in her favour or a joint custody order could not be entertained. There has never been a suggestion that she is not fully capable of making perfectly sensible decisions about C’s future. The father fears that he would not be fully involved in the process. The only major outstanding issue at present is with respect to C’s schooling in B. A number of schools have been suggested. The longer time frame will enable the parties to investigate the various options fully and for C to attend school interviews as appropriate. In the event that the parties are unable to reach agreement on this issue then they may return to court for further directions as necessary. I very much hope however that this will not be the case. Consequently I intend to make an order for joint custody. In doing so I am also conscious of the fact that this may be more in keeping with the kind of order that one might expect from a court in America in any event.

Care and control, access and shared care

117.   Given the present situation it seems to me that this case lends itself to a shared care regime whilst the parties remain living in this jurisdiction. This is reflective of a parallel parenting approach as referred to in paragraph 115 above.

118.   Each party has made various proposals in their closing submissions.

The father’s proposals

119.   The father suggested in his closing submission as follows:

261. The Father put forward a proposal to the court, in reply to the judge, saying that he would consider the following as workable and following the recommendations of the court appointed medical experts:

262. During Week 1 the Mother would have C Monday night, Tuesday and Wednesday night.  The Father would have C on the nights of Thursday, Friday, Saturday and Sunday.

263. During Week 2, The Mother would have C on Monday night, Saturday and Sunday nights. The Father would have C on the nights of Tuesday, Wednesday, Thursday and Friday.  This gives each party a complete weekend with C rather than dividing up the weekend.

264. Until the Mother seeks appropriate treatment for her condition, the Father proposes that on his access days C spend the period of time after school with Aunt C until the Father returns home at 5:30 p.m. C will end her school day around 2:45 p.m., leaving less than 3 hours before the Father returns home.  During the Mother’s access days, C should spend the after school hours with her Mother.

265. While in court the Father had wondered if it might be appropriate for C to go to her Mother on the days when C was overnight with him, on reflection, and given that the experts have said that too much to-ing and fro-ing is not good for her, he views this proposal as a better and more stable arrangement.

266. The Father proposes that the hours currently governing the consent order on access should remain in place.  That means the Father would pick C up at 8:30 a.m. on his weekend access days and the Mother would pick C up at 9:00 a.m. on her weekend access days.  He would propose that whoever has access on any given day, that person would be responsible for picking C up.  He also proposes that on any school holiday during the school year, the parent with access on that day would enjoy C for the day whereas currently the mother has access on non-public school holidays (Parent-Teacher Conferences, for example).

267. As for the summer holiday, the Father proposes that the summer holidays be enjoyed evenly between the Mother and Father, with 4 weeks given to both.  As for the split between public school holidays, the parents should alternate both the smaller holidays as well as the longer holidays (such as Christmas, the Chinese New Year and Easter/Spring Break).

268. If C was allowed to relocate to B while the Father still lives in Hong Kong, the Father would want staying access in B with 7 days notice, more than half of the school holidays to make up for his absence the rest of the school year, and with C permitted to come to Hong Kong for extended stays, as well as Skype, phone and email access at least 4 time a week.

The mother’s proposals

120.   The mother put forward the following proposals:

M has given clear and detailed evidence as to her proposals should Care and Control and Removal be granted to her.  She makes the following proposals;

(A) In the US, the major long term school holidays are: Christmas, Spring Break, the summer vacation (longer school holidays, lasting from around 10 days to two months for the summer vacation).  Thanksgiving and Easter (shorter school holidays, usually last for 3 to 4 days in the U.S.).

(B) Christmas and Spring Break to be alternated between the parties on a yearly basis.  Access to take place either in B, US, or Hong Kong, as agreed between the parties.

(C) F to have holiday access to C for her Christmas break of 2013, and all odd years going forward, with M having C for her Christmas break for 2014, and all even years going forward.

(D) F to have holiday access to C for her Spring break of 2013 and all odd years going forward, with M having C for her Spring break for 2014, and all even years going forward.

(E) The summer vacation is to be shared by the parties on a 50/50 basis alternating the first and second half of the holiday each year.  If F has the second half of the holiday C should be handed over and returned to M’s care at least 7 days before the commencement of the new school year, to allow C and M time to prepare C for the new school year and the participation, if any, in the pre-commencement school activities.

(F) F shall discuss with M 21 days in advance of each of the mentioned school holidays as to whether he wishes to spend the holiday, if the same falls under his access, in the U.S. or in Hong Kong.

(G) If F wishes to spend any of the Christmas break, Spring break or summer holidays that fall under his access with C, the parties shall use their best endeavours to discuss and agree in writing (e-mails counting as an agreement in writing) as to who is to accompany C to travel on flights (until such time as it is agreed between the parties that she can travel as an unaccompanied minor), and the details of handing over and collection.

(H) Unless otherwise agreed, the person accompanying C to travel until such time as it is agreed that she can travel as an unaccompanied minor, shall be either F, M, or a family member of M as is nominated by her.

(I) Thanksgiving and Easter to be alternated between the parties on a yearly basis.  Due to the short duration of these holidays access is to take place in B, U.S.

(J) F to have holiday access to C for her Thanksgiving break of 2012, and all even years going forward, with M having C for her Thanksgiving break for 2013, and all odd years going forward.

(K) F to have holiday access to C for her Easter break of 2014, and all even years going forward, with M having C for her Easter break for 2013, and all odd years going forward.

(L) Save for the arrangements as to returning C to M after the summer holiday as set out above, for all other access visits to Hong Kong C should be returned to B at least 48 hours before the start of school in order for her to recover from jet-lag.

(M) M would be prepared to facilitate further access during C’s school term time and other public holidays to take place in B, U.S. upon F providing M with not less than 21 days’ written notice in advance of his intended visit(s) to the U.S. provided that such visits would not impact upon C’s schooling or other pre-arranged school or extra-curricular activities.

(N) M would be happy to facilitate telephone and Skype access during reasonable hours of the day that would not disrupt or interrupt C’s daily studies and extracurricular activities.

(O) Similarly, the telephone and internet access stated at paragraph [N] above be reciprocated to M during periods when C is under F’s care during his access.

(P) M agrees to provide F with updates on C’s well-being and progress in school.  M will also keep F informed of any problems or concerns or emergency medical situations.

(Q) M agrees to provide F with C’s full contact details and communication channels, whether by way of telephone (landline or mobile), email, Skype, and other contacts, in the U.S., and to update F of any change(s) in a timely manner.

(R) Similarly, F to provide M with C’s full contact details, address of accommodation or accommodations if more than one place, and communication channels including but not limited to telephone (landline or mobile), email, Skype, and other contacts, whether the access take places in the U.S. or in Hong Kong, and to update M of any change(s) in a timely manner, during periods when C is under F’s care during his access.

(S) For the avoidance of doubt, for all of C’s school holidays going forward, the duration of the holidays shall be calculated from the day immediately after C’s school breaks up to the day immediately preceding C’s first day to resume school.  This is to resolve the parties’ differences in the computation of C’s holiday periods that were disputed for Christmas 2011, Chinese New Year 2012 and Easter 2012 in Solicitors’ Correspondence

(T) M would agree to undertake that she will not remove C from the jurisdiction of the U.S. on a permanent basis without obtaining the prior written consent of F.  On the basis that F might visit C in the U.S.  M requires an identical undertaking from F in this regard.  M also requires an undertaking from F that he will not remove C from the jurisdiction of the U.S. during his access visits to any other place or jurisdiction temporarily, whether for holidays or other purposes, without her prior written consent or an Order of the Court.

(U) M would also require an undertaking from F that when he has access in Hong Kong he is not to remove C from Hong Kong to any other place or jurisdiction without her consent and to return C to her care at the end of his access.

(V) F to hand over C’s US passport and all of her identification and travelling documents in his possession, custody or power to M within 3 days from the making of the Care and Control and Removal Order if the Removal Order is granted in M’s favour. Thereafter M shall have custody of C’s U.S. passport and all of her identification and travelling documents.  C’s U.S. passport (and any other travelling document, if necessary), is to be delivered to F if it is agreed between the parties he will be travelling with C to or from Hong Kong during holiday access subject to his undertaking that the same shall be returned to M at the same time as F hands over or returns C to M’s care at the end of the holiday access.

(W) M is willing to undertake to have the Order registered in the Court in M USA.

(X) M is willing to agree to enlist the help of a parenting co-ordinator in the USA in order to assist the parties as necessary.

(Y) M is also willing to undertake to continue to have therapy in the USA with Dr. C as stated in her evidence.  Dr. C’s details are set out in Dr. B’s report

Parenting regime in Hong Kong

121.   C is used to spending a considerable amount of time with each of her parents. I can see no reason why this should not continue – on a more or less equal basis whilst both parents continue to reside in Hong Kong – i.e. until on or after the 28 March 2013. I have given considerable thought to whether or not this is appropriate given the high level of conflict between the parties. Although this is so – it seems that this is mainly contained to the proceedings themselves. Now that the parties are living apart I can see no reason why a shared parenting regime should not work – especially if third parties are available to help with pickups and drop offs. The parties have engaged a mediator to help them with day to day problems arising out of their care of C. Again I can see no reason why this should not continue in the short term. In the longer term, once hopefully the parties are living in B, they should be able to avail themselves of the assistance of either a mediator or a parenting coordinator. I am also conscious of the fact that the experts are of the view that the input of both parents is necessary going forward.

122.   The father now proposes that C should spend time with his sister, her Aunt C after school on his “days”. This is in order to limit the prospect of any situational conflict arising and to counteract the effect of the constant to-ing and fro-ing between two households. My difficulty however is that the case law clearly states that if a parent is available then generally speaking, if there is a choice, a child should spend time with a parent over and above another family member. Although this principle does not normally extend to access – I can see no reason why the same logic should not apply. (See L v C CACV 333 of 2007, in Aslam v Ali CACV 144 of 2003 and P v P, CA 256 of 1996). Given that, it seems to me that the best solution would be for C to continue to be picked up by her mother from school on father’s days and to spend time with her in the afternoons before he is available at c 5:30 pm. I would suggest that if at all possible a third party now be engaged to help with that pick up – perhaps the father’s domestic helper or his sister. However on Fridays it seems to me that it would be best if the mother picked C up from school and took her to Dr P’s for her play therapy and for either the father or a third party to pick her up from Dr P’s office at the end of the session. 

123.   It seems clear that C would do better with blocks of time. The father’s proposal gives him four nights in every week. The mother’s proposal would mean that C is based with her for the majority of the time. The order that I intend to make will mean that C spends 7 nights with each parent in every two weekly cycle. The father has proposed that each party has a complete weekend – while the mother has proposed splitting the weekends. What follows will give the father more time over the weekends but will also ensure that both parties have alternate Sundays with C – which given their Church commitments seems sensible.

During term time

124.   Week 1 – The mother will have C for Monday, Tuesday and Wednesday and Sunday night.

125.   The father will have C for Thursday, Friday and Saturday night.

126.   Week 2 – The mother will have C for Monday, Tuesday and Wednesday night.

127.   The father will have C for Thursday, Friday, Saturday and Sunday night. The father will drop C off at school on Monday morning. Thus the parties will have C for blocks of three or four days at a time.

128.   The father has suggested in paragraph 119 (266) that the hours currently governing the existing order remain in place. I agree. Therefore in week 1 the mother will pick C up at 9:00 am on Sunday morning as this is her weekend access day.

129.   The mother shall pick C up from school each school day. On Thursday’s C shall be picked up by either the father or a third party at P. As the father will have access Thursday evening – he is responsible for picking C up. On Friday’s the mother shall take C to her appointment at Dr P’s and either the father or a third party will pick C up from Dr P’s at the end of the session. In the event that C does not have play therapy the father or a third party shall pick C up from P at 5:30 pm. 

130.   Thus there shall be an order for shared care of C. As stated above this is also more in keeping with a parallel parenting regime. For the record I would reiterate that the parties should continue to seek the assistance of a mediator or parenting co-ordinator to help them with every day issues.            

131.   The parties shall continue to have access to C on alternate public holidays. Non public school holidays which do not fall within other scheduled school holidays i.e. parent teacher conferences shall be treated as a normal school day and C shall spend it with either the mother or father according to the schedule set out above. (See paragraph 119 (266) above).

Holidays until 28 March 2013

132.            The summer school vacation 2012 is to be split between the parties on a 50:50 basis. In the absence of any agreement the father shall have the first half of the holiday and the mother shall have the second half. The calculation of time shall be as suggested by the mother i.e.

the duration of the holidays shall be calculated from the day immediately after C’s school breaks up to the day immediately preceding C’s first day to resume school.

Subject to the normal undertakings being filed by each party – both shall have leave to remove C from the jurisdiction of Hong Kong during that period.

133.   The father shall have the October half term school holiday. The mother shall have the school Christmas holiday 2012. The father shall have the Spring break/Chinese New Year school holiday 2013. Given that Easter immediately follows the date given for the proposed relocation, the mother shall have the Easter school holiday 2013.

Arrangements after 28 March 2013

134.   In the event that the father is also able to relocate as is hoped then I would expect the current term time regime to continue until further order. In so far as holiday arrangements are concerned I would expect the holidays to be split on a more or less equal basis, with the parties alternating the major holidays as generally proposed above. I accept that access shall take place in either B, USA or Hong Kong or elsewhere by agreement during the longer school holidays i.e. Christmas, Spring break and the long summer vacation. Undertakings to inter alia return C to the jurisdiction of M, USA to be given by the parties as appropriate.    

135.   The summer school vacation 2013 shall be split between the parties equally in the manner prescribed in paragraph 132 above. The father shall have the first half of the holiday and the mother the second half. Going forward the parties shall alternate the first and second half of the holidays with the mother having the first half of the holiday in 2014 and so on and so forth. In the event that both parties are resident in B whoever has C for the second half of the holiday will be responsible for her preparation for the new school year.

136.   Thus the father shall have the Christmas school holiday 2013 and thereafter he will have all of the odd years going forward, with the mother having C for her Christmas school holiday 2014 and for all even years going forward.

137.   The mother shall have the school Spring break 2014 and for all even years going forward and the father shall have the school Spring break 2015 and all odd years going forward.

138.   The shorter Easter and Thanksgiving school holidays shall also be split and alternated between the parties. I accept that these holidays shall be taken in the United States. In 2013 the Father shall have the Thanksgiving holiday and thereafter he shall have Thanksgiving in all odd years going forward. The mother shall have Thanksgiving in 2014 and in all even years going forward. In 2013 the mother will most probably have had the Easter school holiday. Going forward she shall have it in all odd years, whereas the father will have the Easter school holiday in 2014 and in all even years going forward.     

139.   In the event that the father is not able to relocate then I accept that he should be entitled to slightly more than 50% of the school holidays. He should also be entitled to access by skype, phone, text and e-mail. Consequently notwithstanding the indication that I gave during the trial, I will give the parties leave file a further written submission setting out their access proposals, in the event that they differ from the proposals already set out above, prior to any further orders being made with respect to defined access.

140.   In either event I will hold the mother to her proposed agreements to be expressed as undertakings as set out in paragraph 120 (P), (Q), (T), (W), (X) and (Y). Likewise I would expect the father to provide an agreement also to be expressed as an undertaking in the terms of paragraph 120 (R), (T), and (U).  

Conclusion

141.   Upon both parties undertakings as set out above I will give leave for the Mother to permanently remove C out of the jurisdiction of Hong Kong, not earlier than the 28 March 2013. The parties shall have joint custody and shared care as set out in paragraph 124 – 131 above during the period that they are both resident in Hong Kong. This order will remain in force in the event that both parties relocate to B within a reasonable period of time i.e. by the beginning of the academic year 2013. In the event that the father is not able to relocate then the order for shared care shall be varied, to the extent that care and control shall be vested in the mother with reasonable access to the father, such access to be further defined by agreement or court order as necessary.

Are these orders ultimately in the best interest of C?

142.   This has been an extremely emotional and difficult case. It seems to me that these orders are ultimately in the best interest of C and are the best that can be devised in the circumstances.

Costs

143.   The parties have spent an enormous amount of money on legal costs. Litigation conduct has been a matter of some considerable concern as stated above. Consequently notwithstanding the fact that this is a children’s case I have nevertheless decided to adjourn the issue of costs for argument. Both parties have leave in the first instance to file and exchange a written submission on costs within the next 28 days. Further each has leave to also file and serve a reply within 14 days thereafter. Further directions will be given after those written submissions have been received. The parties shall also restore this matter in the First Appointment list.