JHCI v. MSYI

FCMC 12528 /2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 12528 OF 2011

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J U D G M E N T
(Relocation, Sole/Joint custody, shared care)

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Introduction

1. This is an application by the respondent mother for leave to permanently remove the two children of the family out of the jurisdiction of Hong Kong in order to relocate with them to California in the USA. The children, J, a boy aged 12 and S, a girl aged 10 are both adopted. The father opposes the mother’s application.  He wishes the children, to remain in Hong Kong and for their care to be shared between the parties more or less as they do at present.

2. In this context the mother seeks an order for joint custody but with care and control to her and reasonable access to the father. The father asks for an order for sole custody to himself but with joint care and control to both parties.

3. In the event that the relocation is allowed the father proposes that the mother have sole custody and care and control of both children. In either event he asks that he be released from his undertaking to take the children to mass on Sundays.

4. If the relocation is denied the mother still asks for joint custody but with care and control of both children and reasonable access to the father.

5. All relocation cases are difficult. However, this case is more difficult than most, given that it is clear that both sides have a perfectly tenable point of view and both have presented a good arguable case.

6. The mother has made this application on the premise that in the worst case scenario the father will not be able to provide adequate financial support for either herself or the children in Hong Kong. Although she has lived in Hong Kong for the last 18 years she says that she now wishes to return to the United States where she has the support of her wider family. She says that this will afford her some security as she will be able to purchase a home in the States and the children will be able to go to good public schools in the event that the parties are unable to afford private ones. She complains about a reduction in her standard of living if she is forced to remain in Hong Kong.

7. From the father’s perspective the mother’s application is more about her inability to come to terms with the reality that he has formed a new relationship and that the children will inevitably spend time with both him and his new partner. He believes that the children need to have regular contact with both parents. He does not believe that it is in the best interests of the children for them to relocate. He fears that the mother will not support his access to the children if they are permitted to do so.

What are the main issues to be considered?

a)  Should permission be given for one or both of the children to leave Hong Kong in order to relocate to the USA with their mother?

b)  How should the children’s time be allocated between their parents once the relocation issue has been determined?

c)  What orders should be made for custody, care and control, access and/or shared care?

Background

8. As at the 21 November 2011 I set out the background to this case in my judgment on maintenance pending suit and costs as follows:

  Background

4.  This is a fairly straightforward case on the facts that has been fuelled to a very large extent by high emotion and attendant conflict which appears to have escalated as the case has progressed.

5.  The parties married in April 1998. This was the husband’s second marriage and the wife’s first. The husband is British and the wife holds an American passport but is of Filipino decent. Unfortunately the parties were unable to have children naturally. They were subsequently very privileged to be able to adopt two children – J, a boy who is now aged 11 years old and S, a girl who is now aged 8 years. Both children attend a well known international school in Hong Kong. They are presently living with the mother. Access has been very problematic. The husband has issued a number of applications in relation to various issues pertaining to the children. The wife has also issued a summons for leave to permanently remove the children to reside in the United States. That application is likely to be heard sometime next year. There now also appears to be a dispute over custody.

6.  Both parties work in the banking sector. The husband is 41 years old. He holds a senior position with an investment bank. The wife is 49 years old. She returned to work in April 2008 after a career break during which she concentrated on looking after the children. This also coincided in part with the parties spending a period of time in Singapore following the husband’s secondment there. The wife also works for an investment bank. Both parties’ earn good salaries, but it would be fair to say that the husband earns significantly more than the wife.

7.  The parties separated in August 2009. On the 29 September 2010 the wife issued divorce proceedings based on the husband’s unreasonable behaviour. In that petition she also sought joint custody of the children with care and control to herself and reasonable access to the husband. She now states that she had not wanted a divorce and had only instituted proceedings because her lawyer at the time had advised her to do so. She says that her intention had always been to try to reconcile with the husband.  She also claims that she had not known of the husband’s new relationship at that time. On another occasion she said that she had felt pressured by the husband to issue proceedings. In any event, regardless of these assertions, the fact is that the wife issued proceedings against the husband based on fairly mild unreasonable behaviour particulars notwithstanding the fact that it was open to her to proceed on the basis of one year separation with the husband’s consent. This had been the husband’s preferred option. On the 14 October 2010 the husband filed an answer denying the allegations of unreasonable behaviour quite generally and reserving his right to apply for leave to amend the answer and to file a cross petition. Just as it had been open to the wife to proceed on the basis of one year separation with consent (or once she had learnt of the new relationship on his admitted adultery), it had also been open to the husband to simply proceed on the basis of the wife’s original petition. He chose not to do so. In any event the wife did not progress her petition. There was significant delay – some of which was justifiable and some of which was not.  On the 7 September 2011 the husband filed a subsequent petition based on two years separation. On the 23 September 2011 the wife’s original petition was dismissed and all pleading were transferred to the new proceedings.  

9. Since then the matter has progressed under the father’s second petition. In terms of the background to the marriage I should add that both parties have lived in Hong Kong for a considerable period of time. The father moved to Hong Kong from the United Kingdom in 1995 and has remained here since, (save for a two year period from 2002 – 04 when the parties were seconded to Singapore). The father was married at that time, but that marriage faltered when his first wife chose not to join him in Hong Kong. He met the mother in Hong Kong shortly after his arrival and they began dating whilst he was still married to his first wife. That marriage was dissolved in July 1997. Prior to the divorce he and the mother began cohabiting. They were married in April 1998 in California and subsequently returned to Hong Kong. The father was 25 years old when he came to Hong Kong. He is 42 years old now. He has recently changed jobs, but continues to hold a senior position in the finance sector. He says that he wishes to continue to live and work in Hong Kong for the remainder of his career. He is settled in Hong Kong and considers it his home.

10. The mother has also lived in Hong Kong for a considerable period of time. She was born in Manila but her family immigrated to the United States when she was 17 years old. She was studying overseas at the time. She is the eldest of 7 children. She and her family are all Roman Catholic. The mother has both an undergraduate degree and an MBA and she has lived in Hong Kong since 1992, save for the same two year stint in Singapore with the father in 2002 – 04. She also worked in the banking field but on the management side. She is a little older than the father and is now 50 years of age. She says that the parties agreed to remain in Hong Kong and to raise a family here because it was “neutral” i.e. it was not the United Kingdom or the United States. She says that the situation has now changed and that she now wishes to live in the United States with her extended family.

11. It seems that both parties wanted to have children, but that the mother had difficulties conceiving leading to five rounds of IVF treatments. In the words of the mother during the trial she didn’t “just pop them out” (children) like other women and the parties subsequently decided to adopt. It seems that the father was initially more open to this idea than the mother, who was very keen to have her own biological children. In time however the mother came round to the possibility of adoption and now says that she “chose” her children.  

12. J was born in May 2000 in Hong Kong and he was released into the parties care in August 2000. The adoption was completed in February 2001. J is of Chinese and Thai parentage. He is presently 12 years old and he attends a well known international school in Hong Kong. He suffers from Attention Deficit and Hyperactivity Disorder (ADHD) and is presently on medication which the parties originally obtained from the United States. It seems that he has recently been prescribed an alternative in Hong Kong. He is also allergic to dust and mites, although there is some dispute over the severity of this condition and the appropriate approach to it. J is presently based with his father, but he sees his mother regularly. He moved to live with his father on a “look and see basis” in January 2012, following an argument with his mother and has remained there ever since. The parties disagree about whether he still wishes to be based with his father. 

13. The parties daughter, S, was born in December 2002 in Malaysia. She was adopted by the parties when they were living in Singapore. Like J, S was released into the parties care in February 2003 whilst still a baby. According to the father S is Peranakan or Straits Chinese, which is an ethnic blend found in Malaysia, of Chinese, Malay, Arab, European and Indian heritage. S has been diagnosed with “clinical behavioural anxiety” and it has been suggested that she may also have some learning difficulties. S is currently based with her mother, but she also sees her father regularly.

14. The children are presently together with one or other of the parents for 5 days/ 4 nights out of every 7 each school week save for the first weekend of every month when they are with their father for Friday and Saturday night. The school holidays are presently split between the parties.

15. The mother took a career break while the children were small and did not work for 7 years. She resigned from her job in late 2001. J would have been approximately 18 months old at the time. S was born the following year. There is no doubt that during this period that she was the primary care taking parent. She was assisted in this role by the father and a domestic helper. In April 2008 she began working again following her introduction through a friend to a well known private bank in Hong Kong. From that point on a driver was also employed in addition to the other domestic help in the house, to assist primarily with the care of the children, which included ferrying them to and from different activities.  

The breakdown of the marriage

16. On the father’s account, he says that the marriage was in difficulty from about 2002, whereas the mother says that serious cracks first started to appear in 2008. In any event in August 2009 the father moved out of the matrimonial home, residing first in a serviced apartment and then moving into an apartment in Pokfulam. It seems that at first matters progressed on a fairly reasonable footing. The father continued to meet all outgoings on the former matrimonial home and he continued to see the children, although usually it seems that this was as prescribed by the mother.

17. This all changed in November 2010 when the mother first became aware of the possibility of the father’s involvement with a third party. Up until that point it seems that the mother had been hopeful that a reconciliation might be effected. The tone of the proceedings alters significantly thereafter.

18. There are a number of themes that run through the parties’ affidavits which serve to illustrate the intensity of their conflict namely a) their continued inability to agree on the children’s access arrangements including pickups and drop offs, as evidenced by the parties e-mail exchanges and as set out in their affidavits. On occasion this has led to serious confrontations including physical altercations that have been witnessed by the children. There has been some police involvement. b) The mother’s inability to come to terms with the reality that the father has formed a new relationship with a former work colleague, Ms V and the fact that the children will inevitably come into contact with her. The mother has for example, expressed continued concerns including room sharing arrangements during holidays and c) the level of financial support that the mother has received and might expect to receive from the father going forward. The manner in which she received that support has also been the subject of intense disagreement.

The present arrangements for the children

19. As referred to above since January 2012 J has been based with his father and S has been based with her mother. It seems that after the mother returned to Hong Kong following the Christmas break in 2011 there was an argument between J and his mother which led, on the mother’s account to her slapping him. It seems that relations between mother and son had been strained even prior to that. After that incident they became rather more difficult. Both parents acknowledge that J can be a challenging child. Eventually the parties agreed that J should live with his father on a trial basis and that arrangement has continued until now. On the 13 February 2012 the arrangement was formalized and an order was made that the father do have interim care and control of J. On the mother’s account J wanted to return to her after the summer. On the father’s account J has wanted the present arrangement to continue. I will come to this again when I discuss Ms H’s reports below.

20. On Tuesday evenings the father continues to have access to S and she stays over at his place with J. On Wednesdays the mother has access to J and he stays over at her home with S.  The children are separated on Monday, Thursday and Sunday nights. The weekends are generally split. The father has access to S from 6 pm on Friday until 7 pm on Saturday every weekend apart from the first weekend in each month. The mother has access to J from 7 pm on Saturday to 7 pm on Sunday apart from the first weekend of the month when the father has access to both children from 6 pm on Friday to 7 pm on Sunday. Thus the children are together at their father’s on Saturdays and with their mother on Sundays save for the first weekend of the month when they have the full weekend with their father. The father undertook to take the children to mass or to Sunday  school when they are with him on Sundays (see the order dated the 15 December 2011), which includes the first weekend of the month, miscellaneous Sundays and holiday times generally. This was amended on the 28 September 2012 – so that the undertaking was limited to occasions when the father was in Hong Kong. This has also been the cause of considerable conflict between the parties, with the mother becoming extremely upset if the father did not, for any reason, fully comply with his undertaking. 

The Law

21.  There is no dispute over the law. The Family Court is bound by its own Court of Appeal’s decision in SMM v TWM CACV 209/2009, which reaffirms Hong Kong’s reliance on the guidance provided by the English authorities and in particular to both Poel v Poel [1970] and Payne v Payne [2001] 1 FLR 1053. Since then the Court of Appeal in England and Wales has handed down its most recent decision on relocation namely MK v CK [2011] EWCA Civ 793, which in broad terms reiterates that in all cases concerning children

  the principle – the only authentic principle – that runs through the entire line of relocation authorities is that the welfare of the child is the court’s paramount consideration.  Everything that is considered by the court in reaching its determination is put into the balance with a view to measuring its impact on the child. (Lady Justice Black, paragraph 141)

22.  Although there has been no further consideration of the approach to relocation cases in Hong Kong since MK v CK, generally speaking there appears to be consensus on the fundamental approach to be applied, as referred to above. In other words in relocation cases as in all cases concerning children, the welfare of the child is paramount and that principle comes before all others. 

23.  Notwithstanding that it seems that I am still bound by the approach taken in Payne, in determining what is in these children’s best interests. Thus in order

 (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

The court is asked to adopt the following approach as set out by the Right Hon Lord Justice Thorpe:

  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.”

24.  In addition, Ms Rattigan for the mother has made reference to 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

25.  Although I accept that MP in California (the town where the mother wishes to live) is a completely familiar environment to the mother, given that her family are there and that she and the children go there frequently to visit, it seems to me that a distinction should be drawn between a case like this, where both parties have lived in Hong Kong for a considerable period of time and someone who might be termed as a “true expat” i.e. someone who is in Hong Kong on a recognisably short term basis. Clearly this is not a case of a primary carer returning to her home after a brief absence. The bar will be set a little higher as a result.

26.  MK v CK differentiates between cases where there is one primary care taking parent and others where there are two parents who take on a significant care taking role. Lady Justice Black made the point that the courts would be mindful of the dangers that might accompany this type of categorisation. (See paragraphs 145 of MK v CK). This was certainly of some concern when the issue of J’s short term living arrangements were discussed. It was made very clear to both parties on that occasion that any “preliminary skirmishes” would not be entertained. That remains the case. My concern both then and now is with the practical arrangements that will work best for J and S in the short to medium term. As Lady Justice Black rightly points out 

145.  ....  The ways in which parents provide for the care of their children are, and should be, infinitely varied.  In the best of cases they are flexible and responsive to the needs of the children over time.  When a relocation application falls to be determined, all of the facts need to be considered.

With respect I agree.

Discussion

27.  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 also heard evidence from the social welfare officer who filed two reports dated the 7 July 2011 and 20 January 2012  respectively. I have also heard from the psychologist Ms H who filed a report dated the 18 June 2012 together with an addendum dated the 21 June 2012, together with an updated report concentrating on the children’s present perspective dated the 12 December 2012.

Should permission be given for one or both of the children to leave Hong Kong in order to relocate to the USA with their mother?

Introduction

28.  I asked both parents what their response would be to the suggestion that the children be split and that leave be given for S to relocate to the USA with her mother and for J to stay in Hong Kong with his father. The mother’s response was that this would be “heartbreaking” whereas the father said that he thought that this was a “terrible idea”. Having heard both parties give evidence and having reread all of the pleadings I have to say that I tend to agree with both parents. I accept that this would not be a sensible solution in this case. I am therefore approaching this application on the premise that either both children stay in Hong Kong or both relocate to the United States with their mother. Given that I will first go through the exercise prescribed by Lord Justice Thorpe in Payne before considering whether or not the proposed relocation will be in the best interests of the children. I will then consider the different practical proposals put forward and again will consider what will be in the best interests of the children. Finally an order will be made that most closely reflects the practical arrangements identified.

Is the mother’s case genuine in the sense that it is not motivated by some selfish desire to exclude the father from the children’s life?

29.  The mother presents her case on the basis of “need” and is posited on the worst case scenario. She produced a schedule at trial which identifies her likely capital award and then looks at how that might be utilized if she was living in California and she was either working or not working. She then goes on to look at the situation in Hong Kong if she were not working. She does not present a fourth scenario i.e. if she were in Hong Kong and working. She argues that in the worst case scenario if the father loses his job or if he refuses to support her financially then she and the children can survive in California. She says that she can live with either her mother or another family member and that the children can attend good public schools free of charge. She is confident that she will be able to obtain some kind of employment in California. Longer term she would like to buy a home. She also says that there is good medical and dental care in California and that J’s ADHD and S’s anxiety condition can be well catered for. Likewise that in the event that S does have a learning disability that that too will be well catered for.

30.  The difficulty I have with the mother’s case generally is that it is not based on the reality of her current circumstances – but on a fear of what might happen in the future. As things stand at present it is clear that the father is in a position to support her financially and that he has done so since the parties separated. This may not be in a manner that the mother deems acceptable (utilities to be paid by her versus utility payments to be met by the husband by direct debit for example) or at level that she believes will maintain her present standard of living. But this is not a case where the father is unable to provide appropriately for the mother and the children – far from it. At present the father is currently paying the mother HK$120,000 per month. He is meeting other expenses, such as the school fees, directly. The mother may argue that this is not sufficient and that he could and should pay more. The father may also argue that he is paying too much. At the end of the day this is a standard of living argument.   In other relocation cases that have been before me there has been a real issue with respect to financial support (see Re: MJP v JWP, FCMC 9154/2008 dated the 30 October 2009, unreported and Re: YY v CHOA, FCMC 7598/2010 dated the 9 November 2011 unreported). In these cases this issue was afforded a great deal of weight when considering what was in the best interests of the children overall. It seems to me that this case is in a very different category.

31.  So whilst I might accept that the mother does genuinely wish to relocate to California, I do not necessarily accept her arguments for doing so.

Has the mother “moved on”?

32.  As has been pointed out several times during the course of these proceedings the mother filed her summons to relocate on the 22 September 2011 shortly before the father filed the second divorce petition and just before he was released from his undertaking not to have access in the presence of Ms V. By that stage the mother would have been acutely aware that a) there was no possibility of a reconciliation and b) that Ms V was about to become a a regular and permanent feature in her children’s lives. I agree that certainly at that stage, rightly or wrongly, the mother would have found that possibility incredibly difficult to come to terms with.

33.  The psychologist, Ms H, also expresses concern about the extent to which the mother has in truth “moved on” and about potential difficulties with access if the relocation is permitted. At paragraphs 144 – 145 of her first report she said that

144.  From my interviews with Mrs. I, (the mother) I did not form the impression that her application to permanently remove the children from Hong Kong was based on some selfish desire to exclude Mr. I from the children’s lives.  On the other hand, some of the correspondence which she has sent to Mr. I over time would seem to suggest this.  She is certainly still very angry and hurt so far as Mr. I leaving the marriage is concerned.

145.  Mrs. I informed me that she still loved Mr. I in the way that one would always love the father of one’s children but she has also said that he is not the man she married and that she doesn’t know him now.  So, whilst having spent time with Mrs. I and concluded that she is capable of being a loving and generous person, I do not think that she currently has the capacity to be generous in a way that will truly facilitate access between Mr. I and the children in the event that they moved back to California.

34.  Having seen the mother in the witness box, I would agree with Ms H’s assessment of the situation. She added to this in the witness box as follows:

A.  Well, I think that the selfish desire to exclude, to me, is on one end of the continuum.  Not facilitating access is further along the continuum.  And in a situation where the children are a world away, if you like, I firmly believe – and it is in my experience – that the residential parent does actually need to facilitate access.  And I’m not talking about just reminding the children to, you know, to Skype or what have you.  I’m saying being really very, very clear about holiday dates and about regular times for the children to actually have some kind of electronic access and about including the non-residential parent in their lives.  Also I think that one has got to present a reasonably positive view of the non-residential parent and Mrs I has said she’s very direct; she’s not sweet; she won’t lie to her children; she has a poor view of Mrs V and when she is, say in California there is no alternative view to be juxtaposed to that. So I don’t think – we’ve talked about Mrs I moving on but are really not talking about her being there yet.  So, no I don’t think she has a selfish desire to exclude.  But do I think that she has the capacity, at the moment, to facilitate access in a way that it needs to be when there is such a distance, no I don’t.

Again I would accept Ms H’s assessment of the situation.

35.  The mother for her part says that she has moved on and that she is now in a very different place. The difficulty for me however is that the evidence would seem to suggest that the mother has not moved on sufficiently. Even during the adjournment there was an unpleasant and completely unnecessary incident at the Hong Kong Cricket Club (see letter from the mother’s solicitor dated the 18 September 2012).

36.  When asked about access the mother said that the father could travel to see the children in the United States whenever he wanted and that they would divide the holidays. She said that she would have “an open door policy”. The difficulty with that proposal is that the mother has said that previously and that in reality access was made very difficult if it also involved Ms V. It also meant access on “her terms”. The father for his part has made it clear that he will not be able to travel to the United States often and that unlike in his previous job he will not be travelling to the United States on business. Since then the mother has attached her proposed access schedule to counsel’s closing submission. She proposes that the father come to the United States to celebrate the children’s birthdays with her together – presumably as a family. Thus she seems to be inviting the father to come to the United States for a short period of time only and when the children are likely to be in school in any event. In high conflict situations the experts generally suggest that the parties have minimal interaction with each other and that they follow a parallel parenting regime. This is one such situation. The mother’s proposal in respect to birthdays seems neither practical nor sensible in the circumstances. I do not believe that it will work going forward. In addition she suggests that parties alternate Christmas and Easter. This year she suggests that the children spend one week over Easter with their father – either in the United States or in the UK. She does not propose that the children come back to Hong Kong. She suggests that the summer holidays be split. In reality then the children are likely to see their father twice a year – if that, if the relocation goes ahead.  

37.  The father was also very concerned that given that S tended to try to avoid conflict in all its forms that she might not engage in any form of access, if the relocation is permitted, because she would not wish to upset her mother. I accept that this is a genuine concern. 

38.  In conclusion I agree with Ms H that the mother does not appear to have come to terms fully with the reality of the father’s new relationship and that there may be difficulties with access going forward if the relocation is permitted. I accept that there is a distinct possibility that the father might be excluded from the children’s lives, if I give permission for the children to relocate to the US with their mother.

39.  Strictly speaking the analysis should end there. Given though that in many other respects this is a finely tuned case it seems to me important to go through the remainder of the exercise and to consider all of the other different factors involved. This will also be important when considering over all if it is in the best interests of the children to go or to stay.

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

40.  There is no doubt that the mother’s plan is realistic – it is both well researched and investigated.

41.  As I have said it would be possible initially for her and the children to live with a family member. She would then hope eventually to buy a property. The children would be able to attend either good public schools or private ones – if finances allowed. She says that she intends to work and feels that she has a better chance of obtaining employment in the United States than in Hong Kong, although she has not been successful as yet.

42.  Although the husband challenges some of what she says he accepts that MP in California is a “nice place”.

43.  Much of what the mother says makes logical sense. If she were living in California she could afford to live in very comfortable accommodation and should in time be in a position to buy a home. I accept that this may not really be feasible in Hong Kong unless she was working. Even if she were working she may not be able to afford the sort of home that she would like to live in. As suggested by both Mr Egerton for the father and S however, it would be possible for the mother to buy a property in California, even if she remained in Hong Kong for the time being. In this way she could take steps to secure her future longer term. I also accept that the cost of living is likely to be lower and the quality of life higher in California than in Hong Kong. I accept that the children would be able to attend good schools in California. They presently attend a very good school in Hong Kong. 

44.  I do not however necessarily accept that the mother will be in a better position to find a job in California than in Hong Kong. Certainly most of her relevant work experience has been in Asia. Given the present economic climate it is likely to be as difficult to find remunerative employment in California as in Hong Kong – especially in the banking field. The mother says that she is not picky and that she is happy to do anything. She has been looking at administrative jobs. Given the rate of unemployment in the United States I am not convinced that the mother will be better placed to find alternative and probably lower paid work in California than here.

45.  In the event that the mother passes both of these hurdles (which in this case she has not) Thorpe LJ goes on to pose the following question:

Is the Father’s opposition motivated by genuine concern for the future of the children’s welfare or is it driven by some ulterior motive?

46.  The mother implies that the father is being difficult by opposing the application and that he has refused to return J to her as a strategic ploy because of this litigation. I do not accept that to be the case. The father appears to be genuinely concerned about the children. He agreed that J should live with him for a while following the row between the mother and J in January. He seems very concerned that the mother’s relationship with J should be supported – in what are very difficult circumstances. The father puts his position thus in his 6^th affirmation dated the 28 February 2012:

75.  I believe J living with me is the right thing for him but I think it is important that he and his mother try to rebuild their relationship.  The Respondent appears to believe their relationship is fine and has sent me texts and emails stating “J and I have talked.  We’re good”.  This is at odds with J’s view.  I consider that the two of them would benefit from counselling either together or separately to help repair things.  The relationship between J and the Respondent cannot be repaired while the Respondent insists on controlling it.  I consider she needs to recognize that a 12 year old boy needs a degree of independence in both thought and action.  I continue to encourage him to be understanding of the challenges his mother faces and try to explain why she may act the way she does without excusing it but she needs to clearly demonstrate to J that (a) she has not given up on him and (b) that she will allow him room to grow while being supportive and understanding.  She appears not to want to spend any quality time with him.

76.  Wherever J ends up living, it is important that he has a healthy relationship with both parents and I spend considerable time with him talking about the need to be respectful of adults and to live up to his commitments.  It is still early days with J in my care and control but he is receptive and is beginning to make progress.  His grades in Maths and Language Arts are beginning to improve and he is calmer and more focused at home than he has been in some time.

77.  As has been stated in my Solicitor’s correspondence and my 5^th Affirmation (C3/554, C3/601, P5/1441), I remain very concerned about separating J and S.  I think it is important for all siblings to have a strong relationship but more so for siblings from divorced parents and I am concerned that the Respondent is forcing S to view J as having taken ‘Dad’s side’, saying things to S (according to S’s comments) like “J and Dad are both home wreckers and losers and we girls are better off without them”.  While I accept this split between J and S for the moment as I think it is best for J in the short term to spend time apart from his mother.  I am vehemently opposed to that as the ultimate outcome.

78.  I am extremely worried about both the immediate and longer term impact of a relocation to the US on both children but on J particularly.  He has been very vocal with both parents about his desire to stay in Hong Kong.  He feels he argues too much with some of his cousins in the US and does not want to be away from me or his friends.

79.  He has very clearly said he would rather stay with me in Hong Kong and visit his mother during holidays.  I believe that if he is forced to relocate, this will irreparably damage his relationship with his mother whom he will resent for going against his wishes.  I believe the Respondent will in turn respond negatively to this and then again, in turn, J will suffer at what is a critical stage in his development.

80.  J has become a young man who knows his own mind.  He had made it clear in no uncertain terms that he does not want to move to the US and it concerns me greatly that at this delicate stage in his development, such a major upheaval, in overt contradiction of his wishes, would lead to a severely damaged relationship with his mother.  At this stage she has shown little willingness to take the steps required to repair their current relationship and I believe a relocation to the US could see him react by refusing to work in school and by rebelling against his mother.  In Hong Kong he has his relationship with me as his secure base to fall back on.  Without that, I worry he could become a severely troubled teen.

81.  At the time of writing, since mid-December 2011, J has not spent more than 2 consecutive nights with his mother and until the revised order regarding J’s care and control had only spent three nights in total.

47.  The mother denies that there are any difficulties in her relationship with J. Although, as will be seen below, I am pleased to note from Ms H’s updated report that relations between J and his mother seem to have improved, it is clear that there are difficulties and that these need to be worked on if the relationship is to continue to improve. 

What would be the extent of the detriment to the father and his future relationship with the children, were the application granted? To what extent would that be offset by the extension of the child’s relationship with the maternal family and homeland?

48.  I accept, as indicated above, that the father’s relationship with the children would be severely undermined if the relocation application is approved. Although I accept that the children might benefit from being in close proximity to other family and some of their cousins I agree that this would not be sufficient to counteract the loss of their father. It also seems from the comments made by J that he has concerns about being in close contact with his cousins. It is clear that the children are closely connected to both of their parents. They both have a close relationship with their father. S for example complains about not seeing enough of her father. She is however also close to her mother, whereas J appears to have a more challenging relationship with his mother.

What would be the impact on the mother if her application was refused?

49.  I accept that the mother is likely to be devastated if her application is refused. I also accept that she is likely to be very angry. However she has lived in Hong Kong for a considerable period of time and has made it her home. She has friends here. She is able to work. She is of Asian descent. She has also said that she will not leave Hong Kong if her application is refused. 

50.  Likewise I accept that the father would be equally devastated if the children were allowed to relocate.

Character of the parties

The mother

51.  It has been said that the mother has come a long way and that although she was devastated by the father’s affair that she is now ready to move on. The difficulty, as I have said, is that whilst I might accept that she has made some progress, I am not sure that she has made sufficient progress. The mother came across well in the witness box. She is a bright lady. However even at trial, in my presence, she tried to be quite intimidating towards Ms V when she gave her evidence. To use that well worn phrase of the psychologists – the mother seems to have little “insight” into her own behaviour or her own part in the breakdown of her marriage or indeed of her present relationship with J. She puts all of the blame at the door of the husband. Likewise she has taken the moral high ground with respect to this application and arrangements for the children generally. This simply does not resonate as being either completely true or completely accurate.

The father

52.  The father also presented as being a very bright man but one who is struggling and has struggled to deal with the present situation. I accept that he too can be uncompromising in his approach and that this has probably not helped the situation.  

Ms H’s first Report dated the 18 and 21 June 2012

53.  Ms H filed a very detailed first report. She spent a considerable amount of time with the children and both parents. She also spoke to both children’s teachers. I will deal with the children’s views as expressed to Ms H and the social welfare officer separately below. Ms H did not support the removal application. In her report of the 18 June she said inter alia in addition to the paragraphs 144 and 145 referred to in paragraph 34 above that

141.  So far as Mrs. I’s (the mother’s) application to permanently remove J and S to the United States is concerned, I make the following points.

142.  Mrs. I has lived in Hong Kong for the last twenty years.  She has a well established group of friends and, unlike many homemaking spouses; she has an established and recent record of employment.  In speaking with Mrs. I, I did not form the impression that she would not be prepared to stay in Hong Kong if she felt that she would be adequately provided for.  I believe her to be genuine in fearing that her current standard of living will be reduced and that this would not be the case if she were to relocate herself and the children back to her family home in California.  When addressed on this issue, Mr. I is matter of fact about the family’s income having been reduced.  He states in his affidavit that he and Ms. V do not share expenses but clearly contemplates an increase in financial responsibility going forward.

143.  I have no knowledge of Mr. and Mrs. I’s financial situation but it seems to me that, if Mrs. I were to stay in Hong Kong, she and the children – whether only S or J and S – would need to be in accommodation still suitable for, for example, J’s friends coming to stay over.

144.  …

146.  The proposal put forward in Mrs. I’s first affidavit, was in practical terms prime facie an acceptable option at the time when it came to the children’s overall wellbeing.  Matters have now moved on, however, and such a proposal must now be viewed in the light of the fact that J, at least on an interim basis, now lives with his father, an arrangement which appears to be beneficial to J.  Further, in the last month or so, it would appear that careful plans have been put in place for the ongoing schooling of both children at ABC School.  I cannot speak to the quality of the schools referred to in the documentation provided by Mrs. I and do not doubt her belief in the quality of education they would be able to provide.  However, I must say that the carefully structured and integrated level of support for the learning needs of J and S that ABC is willing to provide appears to be most impressive.

147.  I am not of the view that Mr. I’s opposition to the permanent removal of the children is in any way motivated by anything other than his view as to what would be in the best interests of both J and S.  He has it seems made genuine efforts to arrange his working life to spend more time with the children.

148.  I have interviewed the children at length and they have been consistent in their views.  J is really enjoying and benefitting from this time with his father. In my view this is not just because of his somewhat volatile relationship with Mrs. I but due also to where he is in his own personal development.  Though I know Mr. I had talked to J about the possibility of his having to leave Hong Kong and reassured him that he will be okay, I do not think that any extended family, loving though they may be, will benefit J as much staying with his father.

149.  S has a close and obvious attachment to both parents.  In my view, she may feel rather lost in a big family environment and, as with J, it is my view that her interests are best served by having both parents in her life on a constant basis.

150.  I mentioned above that the history of access has been problematic.  This speaks to the larger question of how it could be satisfactorily achieved if the children moved permanently to the United States.  Having spoken with both Mr. and Mrs. I, I am not optimistic that the relationship currently existing between them will make for acceptable access between Mr. I and the children to be properly established or maintained should the children move back to the United States.  At the moment, there are still difficulties between Mr. and Mrs. I over phone calls, Skyping, holiday arrangements, pick up points and handovers.  I cannot see how these difficulties would be any less if the residential parent lived outside Hong Kong.  I would add that, in my experience, when access is made difficult for children, over time they begin to avoid it as a source of conflict.  This all too often leads to a breakdown of the relationship between the child and the non-residential parent.

151.  Apropos the above, it is my view that it is very clear that the children have a close and loving bond with both parents.  Their educational and healthcare needs are well met in Hong Kong and if a more amicable arrangement can be reached by the parents so far as finances and access are concerned this will assist the children immensely.  All other professionals interviewed attested to the close bond that the children had with one or other or both of the parents and I would add that this has been amply demonstrated by the children’s responses during my interviews with them.  As the welfare of the children is paramount in these matters and as both children have demonstrated clearly over time that they need both their parents and each other on a constant basis, I am of the view that Mrs. I’s application to permanently remove either or both of them to the United States should not be granted.

54.  She also said that she did not believe that the children should be separated. When it was put to her that the children were separated at present, Ms H clarified her position:

A.  I would say that if the situation continues to improve, with particularly – S no problem – with J, in particular, he is really enjoying this situation.  Now it may well be that the summer holiday, having had some, you know, very nice time with both parents and feeling that certain things have been resolved, perhaps, that he would like to go back to see what it is like living with Mrs I and obviously that would be a very useful thing because Mr I would be starting a new job and Mrs I would have the time, as you say.  But I do think that this is a situation where, just at the moment, as it stands, certainly J’s teachers were very much in favour of this new arrangement being in place at the moment.  And J has continually, throughout the interviews been absolutely consistent with wanting to keep this kind of schedule.

55.  She also spoke to the school and pointed out that it had been agreed that J would drop Chinese and that he would become part of a learning strategies class. This would also mean that he would have a full psycho educational assessment and that his learning plan would then be tailored to his specific needs.  Both of J’s teachers confirmed that J seemed “calmer and happier” since moving to his father’s and that the present arrangement seemed to be working “really well”.

56.  In so far as S is concerned the teachers confirmed that she seemed to be struggling academically and that the plan going forward was to ensure that she had much more direct contact with them in an attempt to ensure more academic success.

Social welfare Reports

57.  Two social investigation reports were filed – the first dated the 7 July 2011 and the second dated the 20 January 2012. The first report was filed prior to the mother filing her application to relocate and consequently it simply dealt with issues pertaining to custody and access. It recommended joint custody, with care and control to the mother and suggested that the parties go to mediation with a view to resolving any disputes over access. This report was also filed before J began living with his father.

58.  The second report dated the 20 January 2012 was more controversial, in that it states that the father was open to the relocation plan. There was some confusion about how this was dealt with by the father. The suggestion was that a letter had been sent to the social welfare officer correcting this misunderstanding. However no letter to that effect was subsequently produced. It was not clear therefore whether or not the social welfare officer knew about the father’s stance on the mother’s relocation application. In her oral evidence the social welfare officer said that although she knew that the father had reservations about the relocation application that she was not aware that he had actually opposed the application. In any event the social welfare officer did not make a recommendation one way or the other simply recording as follows:

15.  It is noted that J did not want to leave his friends in Hong Kong, S worried about changes and Mr I concerned about the maintenance of the father-child relationship after the removal.  When the removal is considered to be beneficial to the children, Ms I should take care of the feelings and emotion of the children and better prepare them for the plan.  Besides, she needs to draw up a well defined access schedule with Mr I so as to facilitate his close contact with the children for maintenance of their relationship after the removal.

The Views of the Children

59.  Both children have expressed their views very clearly and succinctly to both Ms H and the social welfare officer when asked. Although still quite young they have not been afraid to express a view. They attend a well known international school in Hong Kong, where children are encouraged and indeed expected to speak up. They have done so. They have considered the issues and their predicament and have proffered both an opinion and a solution. The views that they have expressed will therefore be afforded considerable weight when I consider this matter overall.  

60.  Initially, as set out in Ms H’s first report, J said that he wished to remain in Hong Kong and to live with his father. He reported that his relationship with his mother, as at May of last year, was still not good, although he confirmed that he would miss her if she relocated to the States and he remained in Hong Kong. He confirmed that he had a better relationship with his father than with his mother.

61.  S, although a more reserved child was equally firm that she wished to remain in Hong Kong and that she wished her mother to remain here too.

103.  S arrived later and was more forthcoming than she had been in the previous interview.  S said that if the Judge said that the two children had to move to California with Mrs. I, S would say “No thank you, I just want to get a house but I do not want to stay there forever”.  I mentioned that alternatively, the Judge might say that S could stay in Hong Kong but that her mother may need to live in California for work which would mean that S would only be able to Skype her mother, phone her and see her on holidays.  S replied again in a very downcast way “That would be very bad for me”.

Since then the mother has confirmed that in the event that her relocation application is denied that she will remain in Hong Kong.

62.  In conclusion the children reiterated as follows:

112.  S stated that she wanted to go to ABC but not a school in California.  I mentioned that she had been to the school in California for a short time.  She remembered “going twice but that the kids kept staring at her there even after the second day”.  She reiterated that she did not want to go to California although it was a nice place.

113.  So far as J was concerned, he stated that he did not really have a relationship with Ms. V; it did not bother him that his father was paying attention to her; the only person it bothered was his Mum.  So far as the school in California was concerned, he said he remembered only being there for one day and that it was good but that he wanted to stay here in Hong Kong.  He did not think he would get on with him Mum in California because she would be mean to him if she was mad at Dad.  He said that living with Dad was going well; that he missed having his stuff from Repulse Bay; but that he liked the current schedule.  He reiterated that he has all of his friends here and that this was his home.  He felt that, if his mother had to go back to California for any reason, she could still visit here on vacation and that that would still work; and that he wanted to stay with his father in Hong Kong.

They expressed similar views to the social welfare officer:

J

9.  J told the Investigating Officer while assembling his robotic engine that he would like to live in Hong Kong as he lived here for a long time and he had friends here.  He did not want to leave his friends.  He told that those in the USA were his relatives only but not his friends.  Besides, he liked his present school.  He said that he could stay in Hong Kong to live with the father if the mother moved to the USA.

S

10.  S talked with the Investigating Officer while she was painting a small picture. She told that she liked Hong Kong because she had been living here for long time.  She liked to go to the USA for vacation only.  She commented that the USA was noisy and the house there was too big for her.  She was also anxious to make new friends in the new school.  She had told the mother about her wish to stay with the mother in Hong Kong but her mother still wanted to go to the USA.

The updated report dated the 12 December 2012 

63.  The trial ended in November 2012, whereas Ms H’s report was dated the 18 and 21 June 2012. The Social Welfare reports were obtained even earlier. Consequently at the end of the trial I was very concerned to obtain an update of the situation from the children’s perspective. Consequently Ms H was asked to see the children in order to do just that. She filed a short updated report on the children’s views on the 12 December 2012.

64.  In summary the children’s views had not changed, although S’s views had developed a little. She still wished to remain in Hong Kong with both her Mum and Dad. She proposed splitting her time equally between both parents.

She drew on my white board the schedule she would prefer, namely that she split her time equally with her parents, spending say Sunday to Tuesday with her father, a half day with each parent on Wednesday and Thursday to Saturday with her mother.

She said that she would like to buy a house in California but not to live there and that she missed each parent when she was not with them. In so far as her relationship with J was concerned and the present living arrangement Ms H reported as follows:

I enquired into S’s ongoing relationship with J.  She reported that she and J still got on badly and that he was still jealous that her mother liked her more and that she gave S more things even if it was just for her birthday.  She went on to say that J was always mean to her and that her Mum says boys are “only jealous”.  S stated that her Dad wasn’t jealous, however.

I asked S how she felt about J still living for the most part with their father.  She replied that this was mostly better because sometimes J was mean to her and sometimes he was not.  Then I asked what she thought of her going back to California and perhaps J staying with their father in Hong Kong.  She was visibly uncomfortable with the question and did not answer directly stating, “I’m quite upset if I go back to the United States.  I really like Hong Kong and it’s a really good place but it is really polluted”.

65.  J’s views were also consistent with what he had said before. He still wished to remain in Hong Kong. He said that his relationship with his mother was better than before and that he didn’t think his mother was favouring S as much as she had done previously. He was concerned about the present proceedings and said that

... he was scared of the situation and that it was always in the back of his mind. 

Further

When asked whether, if both parents decided to stay in Hong Kong, who he would like to live with he replied that that he would still like to stay with his father.  He stated, “I like Dad’s place, it is calm and there is not as much tension generally”.  During the course of this line of questioning, he indicated that he still fought with his Mum sometimes but that at Dad’s there was no fighting, although they argued sometimes about home work.  He also mentioned that his father’s new job was better because there were no late calls.

When further enquiry was made about going back to live with his mother should she stay in Hong Kong, he replied that if his mother were to stay in Hong Kong he supposed he could consider living with her but that his preference would be still be to stay with his Dad.  On a Likert scale of 1-10 (10 being his level of preference to stay with his father) J expressed his preference to be an 8.

Overall would the relocation be in the best interests of the children?

66.  Having considered all of the different factors it seems to me that on balance it would not be in the best interests of these children to permit them to relocate to the United States at this point in time. I have weighed up all of the different factors as set out above.  I have also been ably assisted by Ms H’s reports. I have given considerable weight to the views of the children themselves. Consequently the mother’s summons dated the 22 September 2011 to relocate to the United States shall be dismissed.

How should the children’s time be allocated between their parents once the relocation issue has been determined?

67.  The mother wishes that J be returned to her care. She points out that she is not working at present and that she has always been the care taking parent. Although that is true, it seems to me that that the mother may very well return to the work in the future. In any event the mother proposes that the present arrangement continue with the weekends being split between the parties save for the first weekend in every month. She accepts that the children should spend one night of the school week with their father. She does not wish the father to be released from his undertaking with respect to Sunday observances.

68.  The father proposes that the present arrangements continue save that the weekends be alternated with the children being picked up after school by the parent responsible for them that weekend and dropped off by them at school on Monday morning. He makes that proposal for a number of reasons: a) it means that the children will have the opportunity to spend a more extended period of time with each parent and b) it will lessen the opportunity for the parents to have any direct contact with each other and therefore it should reduce the possibility of any ongoing conflict. 

69.  S suggests that the week be split equally between the parents as set out above.

70.  Although S’s suggestion has a lot to recommend it – I am conscious of the fact that the present arrangement has now been in place for a year or so and that notwithstanding ongoing difficulties, particularly with respect to pickups and drop offs it now seems to be working reasonably well. I am also aware of the fact that the children do not seem to be very close – although they are there for each other when the situation demands it. J has reiterated that his preference is to continue to be based with his father. I think that his view should continue to be respected. Certainly this arrangement seems to be working well from the schools perspective and he seems to be doing better academically. Although I accept that in an ideal world the children should be brought up together, in this instance they will in fact continue to spend most of the week together, especially if I accept the father’s suggestion about the weekends. The fact that they are spending a couple of nights apart does not seem to be detrimental to them. Although, as was pointed out during the trial, the children are separated for part of the week from one or other of their parents, they do infact spend the majority of the week with each other. 

71.  Therefore in broad terms I accept that the current living arrangement shall continue during term time save that the weekends shall be alternated between the parents from Friday after school until Monday morning. This will have the added benefit of ensuring that S has an extended period of time with her father – which is something that she has requested. Likewise it will ensure that J also has the opportunity to have some quality time with his mother and to spend longer periods of time with her, which is something that also appears to be missing from the present schedule. Hopefully this will help them both work on their relationship.

72.  For the avoidance of doubt the Father is released from his undertaking to take the children to mass when they are in his care, although in the interests of family harmony I would encourage the children to go as regularly as possible. As indicated previously an undertaking is generally something that is freely given. This undertaking has caused considerable friction between the parties. The father wishes to be released from it. I will accede to his request. 

What orders should be made for custody, care and control, access and/or shared care?

73.  When asked why he was seeking an order for sole custody the father said that it was because he had found it difficult to reach consensus with the mother on almost anything and in particular he was concerned about decision making around the children’s various health issues. Thus he proposed sole custody of both children either to him or to the mother. However when attempting to negotiate a settlement with the mother he did propose joint custody of both children. Clearly though this was not his preferred option.

74.  The mother for her part proposed joint custody.

The law

75.  I do not intend to repeat the law on custody/joint custody. Reference can be made to PD v KWW [2010] HKFLR 184 in that respect if necessary. In this instance, given my decision with respect to the practical arrangements for the children, I either have to make an order for joint custody or I could make an order that sole custody of J vests in the father and sole custody of S vests in the mother.

Discussion

76.  The term custody refers, generally speaking, to the important decisions to be made in a child’s life. In this instance the parties have already agreed that the children should be raised as Roman Catholics. In so far as J is concerned he will continue to attend ABC school. His ADHD will continue to be monitored. There may be a dispute over the appropriate medication for him to take. However there does not seem to be any dispute that he needs to continue to be on medication. For the avoidance of doubt the father will be responsible for J’s medication requirements going forward both in respect to the ADHD and to other matters including his allergy to dust and mites.

77.  The situation with S is slightly more problematic. There is the possibility that she too may have a learning difficulty. The mother has found it difficult to accept this. The father says that it needs to be addressed. Given that, although S is attending a very good school at present, there is the possibility that she may need to change schools. This is a custodial issue. In order to avoid the possibility of further conflict I will therefore direct that S have a full psychological and educational assessment with a view to establishing whether or not she does have a learning difficulty. In the event that the parties are unable to agree on the appropriate assessor within the next 14 days then each is invited to put forward the name of their proposed psychologist and I will direct who shall make the assessment. There shall be a call over on this issue once the assessment has been received.

78.  Apart from this all of the other difficulties that the parties have experienced have been over the practical arrangements for the children. I do not think that of itself should at this stage preclude the possibility of both parties having joint custody of the children. Both are involved and committed parents who want what they consider to be the best for J and S. Ms H puts it very well when she comments on this in her short supplemental report dated the 21 June 2012:

4.  On the issue of sole custody alone, it is my view that it would be in the best interests of the children if both parents had joint custody of the children.  The concept of custody is a legal concept.  From a psychologists view point there is a presumption that if at all possible children’s interests are best served if they have the benefit of parents’ love, concern, care and advocacy.  The viewpoint is more consistent with the legal line of thinking in relation to a sharing of parental responsibilities etc.  I am aware of the move toward legal reform in children’s matters in Hong Kong.  Presently however the concept of custody remains.  I must state therefore I that considered the views of the Honourable Mr. Justice Hartmann on the proper approach to custody quoted at paragraphs 55-56 in SMM v TWM, a case known to this Court in the course of forming my opinion that both parents in this particular case should have joint custody even if at the moment there was considerable tension between them.

79.  Notwithstanding the obvious difficulties here I have therefore decided that there shall be an order for joint custody. In doing so I intend to put in place a detailed schedule for the day to day care of the children in the hope that this will limit the opportunity for continued conflict between the parties. 

80.  For the avoidance of doubt the father will be responsible for deciding upon and arranging for J’s extracurricular activities, including any extra tuition. These activities shall take place when J is in his care, unless otherwise with the express agreement of the mother. Information pertaining to these activities shall be provided to the mother. I would suggest that the parties set up a dedicated e-mail account for the express purpose of dealing with the practical arrangements for the children only. Likewise the mother will be responsible for deciding upon and arranging for S’s extracurricular activities, including any extra tuition. Again these activities shall take place when S is in her care, unless with the express agreement of the father.

81.  As I understand it the children have an extensive schedule of after school activities at present including extra tuition for both and baseball and Cotillion for J and art and ballet classes for S. These activities will no doubt alter from time to time. For the avoidance of doubt the father will be responsible for arranging J’s schedule and the mother will be responsible for arranging S’s schedule. 

82.  In the case of RE: SKP v Y,ITT, FCMC 17772/2011 dated the 9 November 2011, unreported, I looked at what the different terminology used in relation to children’s orders might mean. I said as follows:

  Joint care and control

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

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

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

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

Detailed arrangements were then set out accordingly.

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

83.  In this case there is also a very high level of conflict and therefore a detailed order is necessary. The important decision making power will continue to vest in both parents and this will be monitored by the court – certainly in the short to medium term in so far as it relates to S’s educational requirements. Each parent will be responsible for the children when they are in their care and each will be responsible for the necessary decision making that that care denotes. As I have said the father will generally be responsible for making practical decisions about J and the mother will generally be responsible for making practical decisions about S as set out above.

Order

84.  Consequently I will make an order that the parties shall have joint custody and shared care of the children. The weekly term time schedule shall be as follows:

Monday  – The children shall be split. J shall be with the father and S shall be with the mother. Each parent shall be responsible for the child in their care.

Tuesday – S shall be in the care of her father with J from after school on Tuesday until she is dropped off at school on Wednesday morning. The father shall be responsible for the care of both children during this time. (Note that the father shall be responsible for picking S up after school. At present he picks S up from the mother’s home at 7:00 pm. If it is specifically agreed to by the parties this arrangement may continue. Otherwise it falls upon the father to make suitable arrangements for both J and S after school on Tuesdays). 

Wednesday – J shall be in the care of his mother with S from after school on Wednesday until he is dropped off at school on Thursday morning. The mother shall be responsible for the care of both children during this time.

Thursday   – The children shall be split. J shall be with the father and S shall be with the mother. Each parent shall be responsible for the child in their care.

Friday   – The weekends shall be alternated. The parent responsible for the children on any given weekend will arrange for them to be picked up from school on Friday from after school and returned to school on Monday mornings. In the event of any disagreement on this the father shall have the first weekend, following the date when this judgment is handed down. At present J goes to Cotillion on Friday’s after school and S goes to ballet. Both children have activities on Saturday’s. It is expected that these or other similar activities shall continue. 

85.  Single public holidays not attached to a weekend and not included in the children’s school holidays shall be alternated between the parties. In the absence of agreement the mother shall have the first single public holiday on the 1 May 2013. The father shall have the 17 May and so on and so forth. Likewise single non school days shall be alternated between the parties. Again in the absence of any agreement the father shall have the first of these days.

86.  Generally speaking the school holidays are to be split equally and/or alternated between the parties. The father has made detailed proposals in this respect in his solicitor’s letter of the 30 August 2012. The mother has not had an opportunity to do so. I will therefore give each side a further 28 days to provide any further written submission on the subject of school holidays otherwise than as set out above. For the avoidance of doubt given that this year the mother had the children for the Christmas period, the father will have them for the Chinese New Year school holiday. 

Costs

87.  As this is a child related matter I will make an order nisi that there shall be no order as to costs, to be made absolute at the expiration of 14 days. There shall be certificate for counsel.