CSY v. LKW

FCMC 10201 /2024

[2025] HKFC 187

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 10201 OF 2024

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DECISION

(By Paper Disposal)

(Statement as to Arrangement for Children)

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1.  This Decision deals with the question of when a Statement as to Arrangement for Children is required to be filed, specifically if such a Statement is required if a child of the family is over 18 years old.

Background

2.  For the purpose of this Decision, I only need to give a brief background of this case.

3.  The petitioner is the wife and the husband is the respondent in this divorce suit. Parties married in 1993 and have a daughter, born in September 2000.

4.  On 9 May 2024, the petitioner, being represented by Chan, Lau & Wai, Solicitors whom I shall refer to “P’s Solicitors”, issued a petition for divorce on the ground of the respondent’s unreasonable behaviour. The respondent husband is unrepresented.

5.  At paragraph 4 of the Petition, it is pleaded that there is one child of the family now living (ie the daughter), “now aged 23”. Hence, it is clear that by the time when the petition was issued, the daughter, who fell within the definition of “a child of the family”, had long reached the age of majority. However, together with the Petition, a Statement as to Arrangement for Children dated 9 May 2024 (“the Statement”) in Form 2B of Matrimonial Causes Rules (Cap 179A) (“MCR”) was filed and served. The Statement stated, inter alia, that the daughter was studying year 4 at a local university.

6.  On 8 April 2025, the parties filed a consent summons to dispose of the ancillary relief matter. By this consent summons, parties agreed to a full and final settlement by having their respective claims for ancillary reliefs be dismissed upon the pronouncement of the decree nisi.

7.  The consent summons came before this court for approval. In the course of doing so, the Statement came to my notice. On 28 May 2025, this court issued the following directions:

1.  The child has long attained the age of 18. The Statement as to Arrangement for Children is not necessary and is a waste of costs.

2.  The Statement as to Arrangement for Children is struck out.

8.  I also made an order nisi that there be no order as to costs and no Legal Aid taxation on the Statement.

9.  P’s Solicitors did not agree that the Statement was unnecessary. This followed by their submissions by way of letters dated 16 June 2025 and 4 August 2025, as a result of which, on 22 August 2025, at this court’s own initiative, a hearing (with 15 minutes reserved) was fixed for 26 September 2025. This followed by 3 further submissions by way of letters dated 15 September 2025, 19 September 2025 and 23 September 2025. I do not propose to set out their submissions at this stage. Briefly stated, P’s Solicitors maintained that the Statement was mandated by Rule 9(3) of MCR. That said, by a letter dated 23 September 2025, while maintaining their stance, P’s Solicitors nevertheless agreed to the Order dated 28 May 2025 (which was never drawn up by P’s Solicitors) for the purpose of saving costs and sought vacation of the hearing of 26 September 2025. In light of this development, the hearing of 26 September 2025 was vacated.

10.  Since this is P’s solicitors’ unyielding stance that the Statement was properly filed, I consider this issue should be addressed. In doing so, I will also deal with some relating issues.

Is the Statement as to Arrangement for Children required to be filed in Matrimonial Proceedings if a child of the family has already reached the age of 18 or above when the Petition is issued?

11.  Rule 9(3), MCR, provides that,

Where a petition for divorce, nullity or judicial separation, or a joint application discloses that there is a minor child of the family who is under 16 or who is over that age and is receiving instruction at an educational establishment or undergoing training for a trade or profession, the petition or the joint application, as the case may be, shall be accompanied by a separate written statement containing the information specified in Form 2B in the case of such a petition or in Form 2D in the case of such an application, to which shall be attached a copy of any medical report mentioned therein.

(emphasis added)

12.  Further, Rule 15B provides as follows,

A respondent spouse on whom there is served a statement in accordance with rule 9(3) may, at any time before the judge makes an order under section 18 of the Matrimonial Proceeding and Property Ordinance (Cap. 192), file in the court office a written statement of his views on the present and proposed arrangements for the children, and serve a copy thereof on the petitioner.

13.  For the purpose of the present discussions, I only need to focus on Rule 9(3), MCR.

14.  It is P’s Solicitors’ submissions (in their letter dated 16 June 2025) that although the child in the present case had attained the age of 18 at the time of the petition, she was receiving full-time education in a university, as such, they were compelled by rule 9(3) to have filed the Statement.

15.  In their letter dated 19 September 2025, P’s Solicitors made the following further submissions.

We respectfully submit that the important operative words are “child of the family”, not the word “minor”. Therefore, in our respectful submission, rule 9(3) should be read as follows, namely, that a Statement of Arrangements is required for either (i) a minor child of the family who is under 16; OR (ii) a child of the family who is over that age (i.e., is over the age of 16) and is receiving instruction at an educational establishment or undergoing training for a trade or profession. Under (i), the word “minor” before the words “child of the family” is there to describe the “child of the family” as being a “minor”.

The purpose of providing the Court with a Statement of Arrangement is succinctly explained at 2.028 of “Family Law And Practice In Hong Kong” (see enclosed), namely, that the Statement of Arrangements “… is designed to tell the judge the present arrangements for the care of the children and proposals for their future, including where they are living, who looks after them, where they are being educated and how they are being maintained. This includes all children of the family …”.

It is respectfully submitted that it is important to remember, inter alia, that: -

1. “Child of the family” is defined in section 2 of MPPO, namely, “in relation to the parties to a marriage, means a child of both those parties…”;

2. Section 5 of MPPO provides for maintenance for the benefit of a child of the family; and

3. Section 10(3) of MPPO allows the Court to make an order for maintenance “in favour of a child of the family who has attained the age of 18 and may include in an order made under section 5… in relation to a child who has not attained that age a provision extending beyond the date when the child will attain that age the term for which by virtue of the order any payments are to be made… for the benefit of that child, if it appears to the court that (a) the child is … receiving instruction at an educational establishment…”

In other words, since a child of the family who is over the age of 18, but is in full-time education, may be entitled to receive maintenance, notwithstanding that child has already attained the age of 18, the Court needs to be informed of that child’s arrangements at the time that the petition is issued (by way of a Statement of Arrangements) so that issues relating to the child’s maintenance can be fully and properly considered. (emphasis made by P’s Solicitors)

16.  Therefore, P’s Solicitors’ view, in essence, is that even in the case where a child of the family has long attained the age of 18, the Statement is required as long as that child is receiving instruction at an educational establishment or undergoing training for a trade or profession.

17.  With respect, I disagree.

18.  In my view, this is entirely a matter of statutory interpretation of rule 9(3).

19.  The word “minor” is not defined in MCR. Section 3 of the Interpretation and General Clauses Ordinance (Cap 1) provides that minor means “a person who has not attained the age of 18 years”.

20.  If the P’s Solicitors were correct in their interpretation, the word “minor” would be superfluous and unnecessary. This should not have been the intention of the legislature. If the word “minor” is on the statute, this must have been inserted for a purpose and should be given effect.

21.  Hence, the only way to read the provision is that the Statement is required for a minor child of the family-

(1)  who is under 16; or

(2)  who is over that age (ie 16) and is receiving instruction, etc.

22.  Indeed, the statutory form for Statement as to Arrangement for Children (being Form 2B for petition for divorce and Form 2D for Joint Application) clearly states the Form is required to state the present and future arrangements for “the minor children of the family under 16 and those over 16 who are receiving instruction at an educational establishment …”.

23.  Further, the particulars required to be set out are the “residence”, “education”, “financial provision” and “access” of the children of the family. It can readily been seen that these information are required to be considered by the court not only on the issue of financial provision but also on the issue of custody, care and control and access. If a child of the family has already attained the age of majority, his custody, care and control and access are simply beyond the purview of the court. There is virtually no need for these particulars to be provided.

Section 18 Declaration

24.  It is P’s Solicitors’ argument that even if a child of the family is over the age of 18 years but is still receiving full-time education, etc, the Statement is required for the court’s consideration if a declaration under section 18, Matrimonial Proceedings and Property Ordinance (Cap 192) (“MPPO”) could be made. This declaration is customary called “Section 18 Declaration”. Again, with respect, I disagree.

25.  Before I come to section 18, I digress to mention that the English equivalent of our Section 18 is Section 17 of the Matrimonial Proceedings and Property Act 1970. Section 17 was repealed and replaced by Section 41 of the Matrimonial Causes Act 1973. Section 41 has since been removed by the Children and Families Act 2014 which came into force on 22 April 2014. As a result, the English court is no longer required to consider whether to exercise its discretion to make the declaration upon divorce: see Rayden and Jackson on Relationship Breakdown, Finances and Children, at [7.9].

26.  I set out the relevant parts of section 18,

Restrictions on decrees for dissolution, annulment or separation affecting children

(1) The court shall not make absolute a decree of divorce or of nullity of marriage, or make a decree of judicial separation, unless the court, by order, has declared that it is satisfied—

(a) that for the purposes of this section there are no children of the family to whom this section applies; or

(b) that the only children who are or may be children of the family to whom this section applies are the children named in the order and that—

(i) arrangements for the welfare of every child so named have been made and are satisfactory or are the best that can be devised in the circumstances; or

(ii) it is impracticable for the party or parties appearing before the court to make any such arrangements; or

(c) that there are circumstances making it desirable that the decree should be made absolute or should be made, as the case may be, without delay notwithstanding that there are or may be children of the family to whom this section applies and that the court is unable to make a declaration in accordance with paragraph (b).

(2) …

(3) …

(4) …

(5) This section applies to the following children of the family, that is to say—

(a) any minor child of the family who at the date of the order under subsection (1) is—

(i) under the age of 16, or

(ii) receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not he is also in gainful employment; and

(b) any other child of the family to whom the court by an order under that subsection directs that this section shall apply;

and the court may give such a direction if it is of opinion that there are special circumstances which make it desirable in the interests of the child that this section should apply to it.

(6) In this section welfare (福利), in relation to a child, includes the custody and education of the child and financial provision for him.

27.  Subsection (5)(a)(i) and (ii) clearly applies to a minor child of the family only.

28.  The remaining category is subsection (5)(b) - “any other child of the family to whom the court by an order under that subsection directs that this section shall apply”. I accept this may apply to a child who has already attained the age of 18 years but it should be noted that there must be an order by the court that section 18 is to apply to that adult child. In order words, an adult child who is still in full-time education, etc per se does not make him a “child” under section 18.

29.  There is also a requirement that the court may give such a direction if it is of opinion that there are special circumstances which make it desirable in the interest of the child that section 18 should apply. It is trite the fact that a child who has attained the age of 18 years but is still receiving instruction at an educational establishment, etc itself is not a special circumstances. “Special circumstances” has been relatively restrictively interpreted and will generally be where an adult child is suffering from a physical or mental disability: see: Rayden and Jackson on Relationship Breakdown, Finances and Children at [17.148] & [17.149].

30.  I acknowledge that where an adult child is still receiving education, etc and is still financially dependent on his parents and where there is such an application for ancillary relief, the court would need to know the financial aspects in relation to that child. Another possible scenario is where an adult child is suffering from a physical or mental disability and there is an application for ancillary relief for his benefit. This, however, on the above analysis, does not follow that the Statement is mandated by rule 9(3), MCR, as argued by P’s Solicitors. Where there is such an application for ancillary relief, the Form Es to be filed by the parties would have covered the relevant information that the court would need to consider. If parties are able to settle their disputes before the filing of their Form Es, the court may, in appropriate cases, direct the petitioner or both parties to file an affidavit or a joint letter addressing the particular aspect that the court would like to know.

31.  Hence, I have no difficulty in arriving at the conclusion that the Statement was not required for the adult child in the present case.

32.  In this regard, it has to be pointed out that it is the recommendation (Proposal 86) of the Final Report on the Review of Family Procedure Rules that Rules 9(3) and 15B of the MCR should be incorporated into the new Family Procedure Rules and should cover all children under the age of 18 years. This proposal has been accepted and will be implemented.

Other Observations

33.  Before I conclude, I would add the following observations.

34.  It has to be emphasized that the Statement provides material information for both the court and the other party’s consideration. As such, it has to be prepared with great care. The material information set out in the Statement must be in sufficient details and reflect the correct situation of the child at the time of filing.

35.  However, it is not unusual that these Statements were prepared in a rather casual manner. Worst still, in some cases, these Statements contain typos or clerical mistakes or do not reflect the situation of the children at the time of filing. It is rather a common practice for parties and practitioners to just simply file a Further/Second Statement in order to remedy the defects. This is unacceptable. If there is any typo or mistake, this should be rectified by way of an application for amendment.

36.  It is also a common practice for parties to have filed an updated Statement when there were changes in the circumstances but the updated Statement does not specify or indicate clearly what the changes in the circumstances were. The court thus have to take a laborious and time consuming exercise to compare the updated Statement with the earlier one. Again, this is unacceptable.

37.  Where it is necessary to keep the court updated with the development when the child’s circumstances have changed, an updated Statement may be filed and served. The updated Statement should indicate clearly and with sufficient particulars of the changes; failing to do so may result in the updated Statement being struck out with adverse costs order.

38.  The above set out the reasons for the Order dated 28 May 2025. Finally, I make an order that there be no order as to costs of this Decision.