GY v. YJ

FCMC 7727 / 2018

[2019] HKFC 114

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 7727 OF 2018

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JUDGMENT

(Custody, Care and Control and Access)

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The Application

1.  This is a trial on how the care of a boy, now aged 16, should be arranged upon the divorce of his parents.

2.  In this judgment I shall, for ease of reference, refer to the petitioner mother and the respondent father as “M” and “F” respectively.  I shall refer to the boy as “CY”.

The Relapse of the Father’s Mental Illness

3.  It is unfortunate that the trial was compelled to have spread over a period of 15 months due to the sudden relapse of F’s mental illness – an illness that has a history back in 2007 when the parties were still living in Beijing. 

4.  What happened was that F failed to appear in court on 24 April 2018 when it was the 5^th day of the trial and when F was due to give his evidence.  It transpired that a few days before, on 21 April 2018, F had been admitted to the psychiatric ward of the Queen Mary Hospital.  The trial was therefore adjourned pending further inquiry. 

5.  On 8 May 2018, I gave an order that the Official Solicitor be empowered to make enquires and to obtain F’s medical reports and that the Official Solicitor be requested to consider acting as the guardian ad litem of F. 

6.  Upon enquiry, it was found out that F was admitted to the Queen Mary Hospital from 21 April to 10 June 2018.  It was F himself who called the police on 21 April 2018 since he firmly believed that he was being poisoned and persecuted by the Chinese government.  He was diagnosed to have suffered from acute and transient psychotic disorder.

7.  After having communicated with F and after having considered the medical report, the Official Solicitor was of the view that whilst F was assessed to have suffered from a mental disorder, he was found to be capable of understanding the divorce proceeding. He was able to express his views, as well as to give instructions to his lawyer, if any, and to give evidence.  The Official Solicitor therefore took the view that his intervention as the guardian ad litem is not necessary.

8.  The trial was accordingly resumed on 27 February 2019.

9.  M gave evidence in English.  F also had knowledge in English though not as proficient as that of the mother.  Given that most of the documents were in English and both parties did not speak Cantonese, the trial was conducted in English and so is this Judgment. 

Background

10.  Both parties are from Mainland China and graduates of top-ranking universities there.

11.  M is now 48 years old. She attended a university in Shanghai where she met F in 1990.  After obtaining her bachelor degree she furthered her studies in Beijing and obtained a master’s degree in Economics in 1997.  She then worked as a banker in the capital city until August 2008 when the family moved to Hong Kong. 

12.  The parties started cohabitation in 1994.  That led to their marriage in Beijing in December 1997. M gave birth to CY in February 2003.

13.  F is now 51 years old.  He attended the same university as that of M, majoring in bio-engineering.  After graduation he worked in a top university for a while before joining a multi-national bio-engineering company in Beijing.  However, his employment was terminated in December 2007.  The evidence suggests that, and I do not think this is in dispute, the termination was due to his uncongenial relationship with his colleagues.  At about the same time, he developed hallucinations and was diagnosed to have suffered from acute transient psychotic disorder.  He was treated in a mental hospital for about a month in January 2008.  It is a common ground that at that time F recovered from this illness.

14.  In 2008 M was offered a position from an international investment bank in Hong Kong.  The family therefore moved to Hong Kong in around the end of 2008.  At that time, CY was 5 ½ years old and was attending kindergarten.  All of them have since been living in Hong Kong and have become Hong Kong permanent residents.  Though both parties’ extended family members are all living in the Mainland, I am not told that any of them has any plan of leaving Hong Kong or returning to the Mainland.

15.  It seems clear to me that the differences between the parties on how to handle CY’s academic and emotional problems, which emerged after their arrival in Hong Kong, contributed greatly to the breakdown of the marriage. 

16.  CY started having problems in school since Year 1.  Teachers consistently made comments that CY had social, behavioural and emotional management issues.  He lacked the ability to control his emotions, as well as the ability to have natural communications with his classmates.  He often overreacted to other people’s comments and behaviour and threw tantrums or cred in class.  He also had difficulty in making friends. 

17.  At the beginning, M hired a private tutor to assist CY but that was objected to by F who saw it as utterly useless.  F took the view that he had the most appropriate method to tackle his son’s problems.  Later on, when M sought assistance from clinical psychologists, F strongly objected to M taking CY for assessments and therapy, with the reason that any issues affecting CY was due to the way in which M handled the son and he had the cure to the problems. 

18.  Being unable to come to any consensus over how to address CY’s issues, the parties’ conflicts intensified as time went by.  I only need to set out the following incidents that featured prominently in trial in order to illustrate the tremendous intensity of the conflicts.  I am well aware that the parties have slightly different versions on the minute details of these events.  In my view, the differences are not of material significance.

19.  In early September 2014 when CY was 11 years old, F did not allow M and CY to meet the speech therapist and locked the child up in his bedroom.  There is a dispute as to whether F was staying with the son in the room when CY was being locked up.  I do not think I need to come to a finding on this factual dispute.  What is relevant is that M said this deeply frightened them; and CY specifically told his mother that he was scared by his father.

20.  Another incident happened in about 14 November 2014.  In that evening, the parties had a fierce quarrel at home.  M’s version is that in the heat of quarrel, F smashed almost everything at home, including the lights and the chairs.  That incident was one of the many where F behaved violently, smashing everything in sight.  As for F, he said that was the only occasion when he smashed things at home in the heat of argument.  The only thing he smashed was just the ceiling light.  Be that as it may, that was not the end of it.  After things had cooled down and when the parties had retired to bed, they had quarrels again. This necessitated the intervention of the police and led to M and CY’s moving out of the matrimonial home the next day.  This lasted only a week because M said she wanted to give her husband another chance.  The mother and son then returned to the matrimonial home until the next major incident that I am going to refer to in the following paragraph. M said after this incident, she and CY were extremely frightened of F losing his temper again and genuinely feared F might do something more extreme in the future. 

21.  In mid-March 2015, F was furious when the son failed to finish the Chinese and English assignments given by him.  In the heat of anger, F smashed a water bottle onto the floor and forbade CY to take his shower, even when at that time the son was naked.  There is some dispute as to whether it was a glass bottle or a plastic one.  Again, I do not think the difference is material for the present purpose.  Similar to the last incident, M had to intervene and call the police for assistance.  This incident was the last straw, triggering M and CY moving out of the former matrimonial home on a permanent basis on 31 March 2015.

22.  On 4 March 2016, M petitioned for divorce on the ground of F’s unreasonable behaviour (under FCMC 4252/2016).  This is contested by F by filing an Answer.

23.  Upon M’s application, I gave leave on 5 September 2017 for her to file a fresh petition for divorce on the ground of 2 years’ separation, which she did on 20 June 2018.  Hence, this judgment is given under the fresh petition (under the present case reference).

24.  Again, F filed an Answer opposing a divorce decree to be granted.  So far, there is no consensus between the parties on the disposal of the main suit and so a decree nisi has not been granted.

The Present Situation

M and CY’s Present Situation

25.  M has been working full-time all the time. She is now a departmental managing director of an international investment bank.  Since moving out from the former matrimonial home in April 2015, M and CY have been living in an undisclosed address. This is a rented apartment of about 1,000 ft² with CY having his own bedroom.  M is taking care of the son with the assistance of a foreign domestic helper who has been working for the family even before the separation.

26.  CY continues to attend the same international school that he started in Year 1.  He is now in Year 10.

F’s Present Situation

27.  F continues to live alone in the former matrimonial home. This is an apartment of about 1,400 ft² purchased in the sole name of M.

28.  F is not working.  As a matter of fact, he has not been in any gainful employment since he was dismissed by the bio-engineering company in Beijing back in 2007.  According to F, his speciality in bio-engineering could hardly give him any appropriate position in Hong Kong.  He could at most get a job with about $20,000 to $30,000 per month which is not of great significance to the family.  He therefore considered that his time could be much better spent in taking care of CY’s education and in doing research on subjects that he was interested in. After the breakdown of the marriage, he has been spending his time on doing research, hiking and travelling abroad.

Access Arrangement

29.  According to M, following the violent outbursts of F leading to the mother and the son leaving the former matrimonial home, CY had been very hesitant and reluctant to meet his father. CY harboured great anxiety whereby he was always fearful that F would take him away.  After much persuasion, CY met F for lunch once every two weeks.  At the insistence of CY, M stayed with them during access.  M also hired a body guard who stayed around at a distance as a precautionary measure.  I am told that each access lasted for about 30 minutes, apparently due mainly to the lack of enthusiasm on the part of CY.  Apart from this, the father and the son used to communicate through telephone calls or the family group chatroom on ‘WeChat’. The bi-weekly lunch access had been in place till the relapse of F’s mental illness in April 2018.  There has not been any access since then.

The Social Investigation Reports (the “SIRs”)

30.  There is a report dated 15 November 2016 prepared by Ms Wong, the social welfare officer, for the assistance of the court.  Ms Wong recommended the joint custody of the son be given to both parents with care and control to M and reasonable access to F.

31.  Due to the lapse of time occasioned by F’s mental illness, Ms Wong prepared a SIR on 13 February 2019 giving updates on the parties’ situation.  Ms Wong continued to recommend joint custody with care and control be given to M.  In light of the change in the circumstances that I will refer to in [121] below, she recommended that access be conducted by way of email communications.

The Mother’s Case

32.  It is M’s case that since the birth of their son she has always been the primary carer while at the same time, she has been working full-time.  She has strived to maintain a balance between her work and CY. This was the case even before M’s moving out of the former matrimonial home in April 2015 and despite the fact that F had been unemployed and staying home most of the time in the past.  She was the one looking for schooling and arranging activities for CY and seeing that his homework was completed.

33.  M said F has been living in his own world, engaging in what he described as ‘research’ in various subjects such as archaeology, history and science in near isolation. F had also been violent in the domestic scene, lashing out his angers whenever he had quarrels or disagreement with her, especially when quarrels were on issues in relation to CY.  A notable example is the dispute between the parties as to whether CY has been suffering from Autism Spectrum Disorder (“ASD”) and dysgraphia.

34.  M accepts CY has been so suffering.  She accepts the assessment and diagnosis made by Dr Knight, an Educational Psychologist.  Not only that, she has taken on board the advice of the professionals, has been working with them and implementing steps to help CY.  She also works with the teachers in the school to improve CY’s situation. Since moving out of the former matrimonial home, in the absence of intervention from F and with the assistance of professionals and teachers, seemingly CY has been “back on the track”. 

35.  M therefore claims that she is a capable carer and F clearly is not.  The present arrangement for CY must be maintained so as to give the child a stable and calm environment for growth.

The Father’s Case

36.  Contrary to M, F does not accept CY is suffering from ASD and dysgraphia.  When CY was so diagnosed in May 2015 by Dr Knight, F refused to acknowledge the same.  He also refused to accept Dr Knight’s recommendations that he had to participle in counselling and undergo assessment when CY was noticed to have fear of his father.

37.  F takes the view that CY in the first place had no problem psychologically.  CY’s physique and weak responses were due to M’s giving him doses of cough syrup as well as allowing him too much time playing video games which affected his concentration.  This caused CY to appear to have ASD at certain times and that the same could be “cured” by making adjustments and restricting the times he played games. 

38.  The thrust of F’s case is that he, and he alone, has the blueprint to salvage his son from these problems.  On the contrary, M has always had a misconception over the causes of CY’s problems and it follows that all the arrangements made by M on the basis of this misconception are wrong and are harmful to his son.  M therefore is wholly incapable as his son’s carer.  Indeed, F goes so far as to say that M is the source of his son’s problems.

39.  F sees that the whole dispute arises from (1) CY’s writing problem and (2) whether his son has ASD. If the court labours on other issues it would only be a waste of time in these malice proceedings. When these 2 issues are resolved and resolved in his favour, the court would only have one unavoidable conclusion – he should be given the custody, care and control of CY.

40.  Accordingly, it appears that F’s case rests on his view that once CY is ‘ordered’ to return to live with him (to the exclusion of M), he will be alright and all his problems will wither away.  F is well equipped with multi-disciplinary academic expertise that he could apply them to remedy his son’s condition.

Parties’ Proposals

41.  M seeks the sole custody, care and control of CY.  She is agreeable to the access arrangement recommended by Ms Wong.

42.  As to F, his proposal is unclear to this day. Whist he seems to be proposing joint custody with care and control to him, he qualifies his proposal by stating that in the event of any disputes over education and medical issues, he shall retain the right to make final decisions.

Legal Principles

43.  In matters in relation to the custody or upbringing of a child, the court is guided by the principles set out in section 3 of the Guardianship of Minors Ordinance (Cap 13) (“the Ordinance”).  The relevant part read as follows,

Section 3

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

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

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

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

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

(ii) shall not take into consideration whether, from any other point of view, the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father;

(b)…,”

(emphasis added)

44.  In short, the law enjoins the court shall regard the best interests of the child as the first and paramount consideration.  In doing so, the court shall give due consideration to the views of the minor and any material information including any Social Investigations Report; and there shall not be any discrimination against the father or vice versa.  It has been said that this is an exercise involving a careful evaluation of all the relevant circumstances and merits and demerits of the alternative proposals as they seemed likely to bear upon the minor’s interest: H v N (Children: variation of interim order) [2012] 5 HKLRD 498 at [21].

45.  The use of the term “best interests of the minor” was the result of an amendment to the Ordinance made in April 2012.  Prior to the amendment, the term “welfare of the minor” was used.  Despite the change in terminology, it is well accepted that the substance of the law has not been changed. For the expressions “welfare” and “best interests” are synonymous:  H v N, supra, at [22].

46.  The term “best interests of the minor” should be given the widest meaning.  Thus, it is not limited to monetary or material needs, the minor’s physical well-being or physical comfort but encompasses medical moral, religious and emotional issues: H v N, supra, at [25].

Issues in Dispute

47.  It is apparent that whether or not CY has been suffering from ASD and dysgraphia is the major issue that has to be determined before embarking on the questions regarding the arrangement for the boy.

Witnesses

48.  There are altogether 4 witnesses.  Apart from the parties, there are also Ms Wong, the Social Welfare Officer and Dr Knight, who appeared as the expert witness of M on child psychology.

49.  F has been acting in person and conducted the trial through a court interpreter.  I therefore gave him more flexibility when it came to his turn in cross-examining witnesses.  However, in light of his never ending and ever recurring questions I had to exercise some time management in the middle of his cross-examination on M by restricting his time to about 7 hours.  I am satisfied that F was given sufficient time and opportunity to conduct his trial.

Is CY suffering from ASD and Dysgraphia?

50.  M became aware of CY’s problem after receiving some feedback from teachers concerning his behaviour at school. M conducted research on child psychology and subsequently took CY to see different professionals and ultimately, Dr Knight.

Psychological Assessment on CY

51.  CY was first seen by one Mr Lau, a clinical psychologist in January 2013.  He was then referred to see Ms Eliza Lau, another clinical psychologist and Mr Fang, a speech therapist, for examination, assessment and treatment.  Upon the recommendations of Mr Lau, CY received cognitive behavioural therapy and speech therapy.  The purpose of these was to help him improve management of his moods and emotions.  The reports from these two psychologists have been produced in trial.

Mr Lau’s Report

52.  Mr Lau’s report (with evaluation dated 26 January 2013) is a short one.  It stated that CY displayed difficulty in temper control and cried easily.  He was irritable at times, did not want to get involved with others and had worries.  His grades at school had been satisfactory.  Yet teachers commented that he was inattentive and interrupted teachers’ talking at times.  Mr Lau noted it was important to help CY see things at different angles and learn ways to cope with the problem he was facing.  He recommended CY to explore means of relaxation and learning acceptable ways of letting out his negative emotions through drawing, doing Yoga, listening to or playing music and other means. 

Ms Eliza Lau’s Report

53.  CY was assessed in November 2013 when he was 10 years and 9 months old and Year 5 in school.  It was a comprehensive assessment on CY’s intelligence, attention, English and Mathematics achievement and social emotional functioning. He was observed to have shown reluctance to write and difficulties in generating ideas verbally. As far as his intelligence is concerned, CY was in the ‘average’ to ‘high average’ range with strength in visual perceptual abilities.  However, he was found to be relatively weak in oral English, sentence building and essay writing and ‘low average’ in reading and listening comprehension.  His mathematic problem solving was in the ‘above average’ range but when tasks were required to be performed under time pressure his performance was ‘below average’. He was found to be similar to children with weaknesses in auditory attention.  On emotions and behaviours, CY manifested behaviour with social adjustment problems. 

Dr Knight’s Reports

54.  In May 2015, when CY was 12 years 3 months old and in Year 7, M brought him to see Dr Knight, an educational psychologist, for a comprehensive psychological evaluation.  It was at this point that Dr Knight diagnosed CY with ASD, Level 1.  Dr Knight has since produced 3 reports:

A Report titled “Comprehensive Psychological Evaluation” (Evaluation date: 12 May 2015)

55.  Dr Knight’s assessment was a comprehensive exercise.  It comprised Clinical Interview, Review of Previous Evaluations, Teacher Interviews, Behavioural Observations, Reynolds Intellectual Assessment Scales (RIAS), Kaufman Test of Educational Achievement – 3^rd Edition (KTEA-3), Behaviour Assessment System for Children Second Edition (BASC-II), Social Responsiveness Scale – 2^nd Edition (SRS-2), Child Interview and Self Report.

56.  Dr Knight commented that overall, CY presented as having quite significant difficulties in managing his mood and emotions. Some of his difficulties with mood control could be attributed to his family situation but Dr Knight viewed this was not the sole contributing factor.  He considered that CY’s difficulties were primarily neurodevelopmental in nature. Based on the overall profile, he assigned a primary diagnosis of Autism Spectrum Disorder Level 1 (Asperger’s Disorder) without intellectual or language impairment.  Dr Knight also assessed that CY would also qualify for a diagnosis of a specific learning difficulty in written expression - Dysgraphia. 

57.  I need to mention that though in previous reports it had already been mentioned that CY had behaviours indicating ASD, this was the first formal diagnosis given to him.

A Report titled “Assessment/Consultation Summary” (Consultation date: 23 September 2016)

58.  This report was prepared some 17 months after the first one.  It is apparent that though CY still displayed the typical profile of difficulties with socialization, rigid repetitive behaviours / interests typical of persons on the autism spectrum it was commented by all (including CY himself) that overall CY had made improvement in many aspects. His academic performance had been adequate and he was in a much better state emotionally but he still had a strong need for development of social skills.  In the words of Dr Knight, CY “views himself as functioning much better in the overall emotional sense”.

59.  It is significant to note that according to Dr Knight children in similar cases would continue to improve as they mature.  This could be the case for CY assuming that his family situation stays stable.  If he is placed in a situation in which he feels very uncomfortable or involves a lot of instability or conflict, it is likely that he would experience decline in his social emotional functioning.

An Updated Report dated 12 October 2017

60.  This report is an updated assessment. This is an outcome of Dr Knight’s interview with M and CY’s individual needs teacher, an assessment based on the “Behaviour Assessment System for Children Third Edition (BASC-3)” with M and the teachers and a clinical interview with CY.  Dr Knight assessed that CY has made improvement since the last assessment.  CY is in a much better place in the overall social emotional sense than he was during his initial assessment.  CY still displays the typical profile of difficulties with socialization, communication and rigid repetitive behaviours / interests typical of persons on the autism spectrum, but overall there has been improvement.  Dr Knight again stressed that CY should be able to improve as he matures.  This is on the assumption that his family situation stays stable.  If he is placed in a situation in which he feels very uncomfortable or involves a lot of instability or conflict, it is likely that he would experience decline in this social emotional and school functioning. 

F’s Challenge to the Diagnosis

61.  At the beginning, F indicated that he did not need to hear Dr Knight’s evidence, to the extent that he even objected to Dr Knight’s appearance in court.

62.  F’s stance is straight-forward.  ASD is in born.  The syndrome is caused by some congenital development disorder and cannot be cured.  It follows that the relating emotional, social or educational problem and writing difficulty cannot be cured.  Therefore, the arrangement at school made in accordance with the psychologists’ recommendations are wrong.

63.  F is of the firm view that the solution to CY’s problems cannot be found in psychology, they can only be found in neuroscience or molecular biology.  He even claims that psychology had been eliminated half a century ago and superseded by neuroscience or molecular biology which analysed the thinking and behaviour of human beings.  F has, so claimed by him, engaged in molecular biology for nearly 30 years.  He is very clear about neuroscience, including all molecular mechanism of all mental disorder and the development of all relating medicine.  Thus, only clinical psychologists who have had knowledge in the new subject would be able to make the correct assessment.  In this regard, Dr Knight is not qualified to do so. It follows that Dr Knight’s diagnosis is wrong. 

Discussion

64.  F claims during the 10 odd years of unemployment he has been keeping himself abreast of the latest development in the field of neuroscience or molecular biology. With respect, I see nothing in support of this contention apart from his self-complacent claim.

65.  F claims Dr Knight’s assessment was false when he diagnosed CY suffering from ASD and dysgraphia.  During the cross-examination of Dr Knight, F adduced various articles for Dr Knight’s comments. There was no mention of the source of these articles nor were these articles disclosed before.  It is not necessary for me to cite all the articles here.  One of the articles is entitled “On Being Sane in Insane Places” by David L Rosenhan and the other one is “Estimating the reproducibility of psychological science”, apparently published in a Science Journal.  I believe these articles are in support of F’s contention that psychology had been eliminated and superseded by neuroscience or molecular biology or to discredit psychology as a science or discipline.  However, F has not been able to pinpoint, with reference to the articles, which part of the assessment was erroneously founded, unsupported by mainstream theories in psychology or was faulty administered. As a matter of fact, it is apparent that F in fact agreed to some of the assessment made by Dr Knight.  He relied on Dr Knight’s finding under the RIAS test that CY’s verbal, non-verbal and composite functions are ‘high average’, ‘superior’ and ‘high average’ respectively to support his contention that M has been using the wrong method for CY. 

66.  Dr Knight’s main report was the result of a comprehensive assessment.  He conducted in-depth interviews with both parents and CY on separate occasions, obtained feedbacks and comments from CY’s teachers, reviewed all previous psychological evaluations and administered various tests and assessments.  I am sure he was fully aware of the concerns and the diverging views of the parties over the causes of issues being faced by CY; and I am also sure that he was fully aware of the contents of the previous reports prepared by clinical psychologists. 

67.  At trial, F complained that Dr Knight and even Ms Eliza Lau failed to understand the information provided by him because they spoke to him through an interpreter only.  Dr Knight’s report was incomprehensive or incomplete because it did not contain the detailed information provided by him.  He even accused that the interpreters on both occasions were related to M’s solicitors.  I do not find any merits in these challenges.

68.  For these reasons, F’s challenges to Dr Knight’s assessments must fail.

Dysgraphia

69.  CY had some respiratory problems and was diagnosed with asthma when he was between 8 and 9.  F says because CY was given excessive cough syrup by M, this led to his lacking in strength.  He even had difficulty in holding a pencil or a table tennis paddle and this was the cause of his writing problem.  He was no match with children 2 to 3 years younger than him in badminton and Taekwondo classes; consequently, his classmates laughed at his weaknesses and even bullied him.

70.  F sees why CY was being laughed at and bullied at school were first, because of his poor performance the cause of which was in his writing difficulty.  The second was that he was physically weak. CY had once failed in physical education at school and so he was laughed at and bullied.  CY’s fingers lacked strength because M allowed the son to spend too much time on too many Lego toys.  F also complains that M allowed CY too much time in playing IPad, computer Lego and other computer games. He is very concerned that CY would become addicted to playing games. 

71.  F says during the marriage after he had found out the root of the problem, he designed ways to solve them.  He arranged CY to recite Asian poems, China classical proses and poetries. He supervised CY’s computer typing, bought a lot of English writing materials and enrolled him in English writing class.  He arranged boxing and fencing sessions and even bought hand-brakes and dump bell for strengthening his muscles.  He took CY to hiking and running and do exercise in parks nearby. 

72.  M denies CY was ever given excessive cough syrup.  The syrup, prescribed by doctor, was only given when CY was sick.  There was not a period when CY was consistently sick except when he was suffering from asthma shortly after moving to Hong Kong but has long recovered.  She also denies CY had any issue of addiction to computer games.

Discussion

73.  F says antibiotics are not required for treating fever or influenza but very often, back in the days when they were in the Mainland, doctors tended to have abused the use of antibiotics by prescribing them unnecessarily.  F claims that back in Beijing he worked in the Life and Medical Science Department of a Bio-technology company ranking 4^th and its clinical department ranking 9^th in the world.  He is able to tell which medical prescription is correct or incorrect.  After the family had moved to Hong Kong, M treated the son with cough syrup whenever he had coughing.  It was not until in about 2011 or 2012 when CY’s asthma was treated in a hospital that he realized his son’s problem had its root in cough syrup.  He adds that cough syrup is a traditional Chinese medication. The taking of a large amount of it would have immense side effects, including intoxication and cancer.  This is firmly established in neuroscience, bio-chemistry and tissue-mechanics and can be found in many academic articles.  In support of his contention, he produced to court some of CY’s writings and drawings when he was in Beijing and when he shortly arrived in Hong Kong to show that there was no writing difficulty at that time.

74.  With respect, I do not know why F claims cough syrup is a traditional Chinese medication because that is contrary to our day-to-day experience in Hong Kong. Anyway, M’s evidence is that the cough syrup was prescribed by medical doctors in Hong Kong when CY was sick; and he was not given the medication any more than what was prescribed. 

75.  Leaving whether or not cough syrup is a traditional Chinese medication aside, it is quite clear that when referring to ‘cough syrup’ F is using it as a general term and referring it to a generic class of medication the composition or the chemical ingredients of which may vary according to different formula.  There is virtually nothing from F on whether CY was given the same medication each and every time, on the dosage CY was given such that the dosage was excessive, or on how the medication was composed of, for instance, whether the presence or the excessive presence of a particular ingredient or substance in the syrup would cause a certain side effect on patients. 

76.  The family has been in Hong Kong since the end of 2008.  F says he had taken up the responsibility of caring the son since then.  If that was the case, there is no reason why he says he discovered the abuse of medication in 2011 or 2012 only.

77.  For the above reasons, I have to reject F’s case regarding cough syrup.

Academic Performance

78.  In my view, whether CY has been correctly assessed can be judged from the effects of the arrangement that has been put in place pursuant to the diagnosis.

79.  At trial, CY’s school reports and his teachers’ comments over the period of time since moving out were examined at some lengths.  It is not necessary for me to make a precise comparison, subjects by subjects and comments by comments, here.  Suffice to say is that the grade in June 2015, covering the period immediately before and shortly after moving out, was 34/56, while 2 years down the road in June 2017 his grade was 40/56.  Looking at these figures alone, it is evident that there was some improvement.

80.  At one point when F was making his opening submissions, he agreed that there had been some improvement but this only show that Ms Eliza Lau and Dr Knight were wrong.  At another point when he was cross-examining M, F criticised that these figures only prove CY has had no improvement and has been under the wrong arrangement.  I take what F meant is that if CY had been under his arrangement (and for that matter, his arrangement only), CY could have done even much better.  I agree the improvement cannot be rated as marked improvement but I do take note of many positive comments given by the teachers and I certainly cannot lose sight of the fact that CY was awarded an “Improvement Scholarship” by the school for the year 2016/2017.  Clearly, that was a recognition from the school on CY’s progress. After all, one must approach this issue with some empathy.  CY has to progress at his own pace.

81.  For the year 2017/2018, it has been reported in the latest SIR that CY got overall grade of 6 (maximum grade: 7) in English Language and Chinese Language and grade 5 in Mathematics.  His conduct was rated to be good and his homeroom teacher commented him as an energetic and determined students whose participation in homeroom activities continued to increase.  He was observed to be happier.  It is not necessary for me to refer to the comments given by other teachers.  All in all, it has been reported that improvement has been consistently made throughout these few years.

82.  Dr Knight’s latest report stated that CY has a good insight into his strengths and weaknesses.  He is aware of his diagnosis of ASD and has an appropriate understanding for a boy of his age.  He is no longer being bullied by other children.  He views himself as functioning much better in the overall emotional sense. 

83.  The evidence before me emphatically shows that CY has made improvement in terms of his academic progress and more importantly, in terms of his emotional management after moving away from F and after arrangement that caters for his condition has been put in place. 

84.  For the above reasons, I accept that CY has been suffering from ASD and dysgraphia.

85.  With the conclusion that I have reached regarding CY’s condition, I now move on to deal with his future arrangement upon the divorce of his parents. I shall first deal with the care and control issue.

Care and Control

86.  M says prior to the separation though she had to work on a full-time basis, she was always the primary carer of CY whilst F’s case is that since the family’s moving to Hong Kong he was responsible for the care of CY with the assistance of a domestic helper.  In my view, whatever the situation it was back then it is immaterial for the present purpose.  The objective fact is CY has been under M’s sole care since April 2015.

87.  CY’ socialising and emotional skills have improved markedly since living apart from F.  This is supported by various comments and reports from the school.

88.  The unchallenged evidence is that M is a very “hands-on” mother while working full-time at a top managerial level. She takes care of CY’s entire timetable, from arranging extracurricular activities to selecting private tutors, and reviews his homework.  She also brings CY to all of his therapy sessions and social activities and accompanies him during weekends and Sundays.  CY is now 16 years old and his needs are less physical in nature but more about emotional support and companionship.  All in all, the evidence, and I accept, is that M would spend quality time with CY whenever she could and in a manner that gives full allowance to CY’s special needs.  I was told CY does have some friends now.  In this regard, I am sure that M is far more superior than F in giving CY the support and companionship that he needs.

89.  M understands CY requires a regulated schedule to ordinate his daily activities. During times when she is at work, the domestic helper would take care of CY’ daily needs. M would return home by at least 6:30 p.m. every evening so that she could assist the boy with his homework as well as spend time talking to him about his everyday experiences. During holidays, activities are also organised between the mother and the son to bond their relationship such as going to summer camp in Shanghai or Vermont, the United States.  All along, M has been responsible for organising and arranging CY’ schooling and has seen to it that she is involved in all school meetings and events.

90.  I am sure CY has been in good hands under the care and control of M.  She recognises and accepts that CY has special needs.  By way of example, when CY was being diagnosed to have ASD, M contacted CY’s school to update them about the same so that his individual needs teacher could accommodate him accordingly.  She also arranged CY to attend a social flexibility programme run by a Child and Adolescent Counsellor to help him develop his social skills.

91.  To cater for CY’s special needs and unique situation, his school has prepared an Individual Education Programme (“IEP”) for him since 2015. This is a programme tailored for students with ASD. Significantly, the programme was first introduced by the school at its own initiative in March 2015, some 2 months before CY was formally diagnosed by Dr Knight.  The IEP sets the areas of concern for CY as well as the specific strategies for use in the classroom.  For instance, under the plan, CY has been given permission to use computer and 25% extra time for tests and he is placed in a scheme called “D” with support from mentors to address his bullying issue.  I believe it is a matter of common-sense that whether the IEP could be implemented at all would depend upon the endorsement of the parents; and needless to say, the success of it, if implemented, would depend upon the continuous co-operation and communications between parents and the school. Given F is adamant that his son does not have ASD, I doubt very much if F is to have the care and control of CY whether the IEP could continue to be implemented or whether it would achieve the same result.

92.  At trial, the IEP reports, which covered both academic and emotional aspects, were scrutinized.  The evidence shows that CY is aware of the issues that he has been facing and he wants to be normal and that in this regard, he has been making progress. 

F’s Temper, Death Threats and Threatening Remarks

93.  Another aspect that I must give regard to is the manner in which F dealt with the son, especially when it came to guidance or discipline.  On F’s own admission, in mid-March 2015 (I gather this was the event triggering M moving out of the former matrimonial home), F was in great fury when he found CY was playing computer games secretly; and when so found, he denied by telling lies.  F lost his temper and scolded the son.  He considered that fury was a necessary emotional response and throwing a tantrum was a release of his negative emotion and thus, it was perfectly normal and correct for him to do so.  M, who was not professionally trained in medicine, neuroscience and psychology, was not able to understand these theories. He did so in order to let CY learn the unavoidable emotional interaction in social life.  As I see it, he regards venting his anger in the way he did as a way to educate CY.  I agree that as a father, F should in appropriate circumstances give guidance to CY and even some censures but it does not mean it was right for him to throw his temper without giving due consideration to CY’s emotional vulnerability. 

94.  This incident also illustrates another aspect.  F says CY told him that his classmates laughed at him for not playing computer games well.  How he taught the son to cope with this was to tell his classmates that playing games is an entertainment and for killing-time, being good at playing games does not mean good at homework; and one who spends a lot of time on games is not a good boy.  To me, it shows nothing but F’s inability to step in the shoes of CY.  He was not able to understand CY was seeking friendship, acknowledgement and acceptance from his peers, which had been an issue facing his son.  I wonder whether CY would be further ostracised by his peers if he really said what he had been taught.

95.  F believes that if CY is good at academic, he would get respect from his peers.  For this reason, in the past when the family was together F demanded too much from CY and hence, imposed too much stress on him.  This is the reason why up to now CY is still scary of his father and afraid that his father would take him away.  F fails to appreciate what CY wants deep in his heart is not the respect from his peers.  As recorded in his interview with his special needs teacher, CY expressed that he wants to be treated normally. He does not want to have other people’s comment, whether it is positive or negative.

96.  There is clear evidence that on more than one occasions F uttered threatening words to the effect that he would kill M and CY.  M accepted that F did not really mean his words but added she always feared that F would do something really violent.  F’s explanation is that the utterances of those words and the smashing of things were ways to relieve his anger.  It was a way to regulate or ease his emotion and in his eyes, this was completely normal.  With respect, I do not agree.  What he said is in effect he should be given a license to lash out his anger in whatever way he liked so as to vent his negative emotion at expenses of his family members.  I must say I cannot accept this.  The question is, if he is entitled to do in the way he did, does he accept his family members to do the same to him?  As rightly pointed out by M when she was being cross-examined by F, has F ever thought of CY also needs to relieve his stress? I doubt very much whether F would agree to and expect his family members to act in the same way to him.  In this respect, I agree with M that F is extremely eccentric.  Given CY’s condition, I have no doubt that F is not a proper person to have the care and control of the son.

Other Considerations

97.  M is more conversant in English.  This is a distinctive advantage she has over F when it comes to communicating with CY’s teachers a majority of whom speak English.  In any event, in the past, M attended most Parents and Teachers Association sessions.  I am sure M is far more superior than F in keeping regular communications with CY’s school so as to draw support from teachers in addressing the son’s special learning needs. 

98.  Likewise, it also has been M’s single-handed effort in drawing support from relevant professionals and therapists in resolving CY’s social and emotional issues.  The objective fact is that F objected to CY seeking professional help.  For nearly 3 years before separation, M had been struggling hard to seek her husband’s consensus but in vain.  As said, on one occasion in about September 2014, F did not allow CY to see the speech therapist by locking the son up in his room.  It is clearly to CY’s interest that professional help should continue to be available.

99.  There might have been a few incidents in the past mentioned by F (some of which M denied ever has happened) indicating that M had given guidance or discipline in improper manner.  I do not think it is material here.  After all, no parent or for that matter, to use an old cliché, nobody is perfect.  In respect of CY, the court only has to determine who is more appropriate to be burdened with the care and control of him.

100.  It should also be mentioned that it was Dr Knight’s advice that a physician should be consulted on the possibility of treatment with medication for CY’s difficulties with mood control and attention.  Probably due to the progress made since arrangement has been in place, thankfully it has not been necessary for CY to receive any medication.

101.  Finally, though a small point, I cannot lose sight of the risk of relapse of F’s mental illness.  This worry is not without ground since it has been reported by the treating doctor of the Queen Mary Hospital that F had insufficient insight on his condition.  Further, F is still under medication and is receiving follow-up treatment at the David Trench Rehabilitation Centre.

CY’s Views

102.  As Poon J (as he then was) has pointed out in H v. N, supra, “How far the wishes of the minor should be a determinative factor and how weighty they are varies, depending on the circumstances of the case.  The court makes its decision, having regard to but not constricted by the wishes of the minor, fully conscious of the fact that his best interest may well diverge from his wishes”: [33]. 

103.  At the beginning of the trial, CY was 14 ½ years old.  By now, he is already 16, old enough to give his reasoned views. CY’s views are set out in the SIRs. 

104.  It is reported in the 1^st SIR that CY considered his relationship with his mother as very good.  If he has any problems he would seek help from her.  M would comfort him and find solutions for him.  He prefers to live with M and enjoys going out with his mother.  As regards F, my reading is that his feelings towards his father are rather negative.  He mentioned that when he was in Year 6 (I reckon that was 2014) there was one occasion when he could not complete the assignment given to him by his father, F became furious and dashed a bottle onto the floor.  I reckon this must be the incident that led to M moving out of the matrimonial home with CY permanently on 31 March 2015.  CY also mentioned F often forced him to recite ancient Chinese poems.  He is afraid that F would lash out his angers on him. He feels scary and being pressurised when staying with his father. 

105.  It is reported in the latest SIR that CY trusts his mother, who has made many good decisions for him.  He shares his feeling with her every day. He prefers his mother making major decisions for him and he would like to live with his mother.  It is significant to note that CY feels being respected by his mother – something that, I believe, he did not have from his father.

106.  Taking all the matters in a round including CY’s views, I consider the issue is weighty in favour of M.  I shall give the care and control of CY to M.

Sole Custody or Joint Custody?

107.  Ms Wong has consistently recommended joint custody be given to the parties.  In her latest SIR, she considered that since the parents were able to work on important decisions, joint custody is preferred.

108.  M considers that given F’s attitude, his violence and his uncompromising justification for his deeds and words, and from her previous attempts to compromise with F but in vain, there is little hope that they would be able to reach any agreement.  F would just think in his own way and would not share or accommodate others’ views. 

109.  F agrees to Ms Wong’s recommendation of joint custody.  Yet, this agreement is subject to a qualification that if the parties cannot come to an agreement on any education or medical issues, F should always have the final say.  F says that the court could only make its decision regarding medical or scientific matters based on expert’s opinion and when it comes to these matters he is able to tell which professional has the qualification to give an opinion.  

Custody – The Legal Principles

110.  A parent having the sole custody of a child has the authority to make final decisions on such matters such as the child’s education, religious upbringing and extracurricular studies, but these are to be made after consulting and giving full and rational consideration to the other parent’s views: see: PD v KWW (Child: Joint Custody) [2010] 4 HKLRD 191, at [31] & [38].

111.  As has been pointed out by Hartmann JA (as he then was) in PD v KWW (Child: Joint Custody), supra, it is widely recognised today that the long-term best interests of a child are invariably best protected if, despite the breakdown of the marital union, both parents are able to continue to play an equal role in making the important decisions that will determine the child’s upbringing and therefore, in principle, orders of joint custody are in the best interests of children: see [44] to [47] & [52]. 

112.  Speaking of the proper approach to the issue of whether a joint custody order is to be given, Hartmann JA said,

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

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

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

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

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

113.  Ms Wong took the view that since both parents agreed that CY should receive his tertiary education overseas, it showed they were able to work on important decision.  In evidence, Ms Wong agreed that in fact there had not been any discussion between the parties on CY’s study plan at all.   I agree with Mr Li that this could not be an indication or sign that they were able to come up with any sensible agreement. It is more likely that it was a coincident. In any event, the most important is this is not a plan at all.  There has not been any concrete discussion nor is there any consensus on any particulars such as which country or when. 

114.  My observation is that F is an argumentative person. This accords with M’s evidence that while they were together F argued with her endlessly on an issue until she succumbed.  F is also an uncompromising person. In connection with his criticism on the methods suggested by Ms Eliza Lau on how to deal with CY’s writing problem, I was taken aback when F made comments to the effect that if there are solutions better than his arrangement, he is more than happy to accept but any methods not in line with his arrangement are incorrect.  With respect, I must say I have some difficulty in following his logic. 

115.  F admits he did not agree with M taking CY to see clinical psychologists.  He did not allow his child to see the speech therapists and objected to M hiring a private tutor to assist CY in catching up with his school’s academic programme. 

116.  F does not think CY’s emotional reaction, particularly when he was at school, was a problem at all. Quite to the contrary, it demonstrated that his son was normal.  As I understand it, he considers that the kind of reaction CY had was a manifestation of a normal emotional mechanism. If strong emotions were not released, it would cause depression and might harm one’s health and might even cause cancer.  In F’s eyes, M did not understand the working of human beings’ emotional mechanism and that led to her misconception that CY had problems. 

117.  F has been spending most of his time in doing ‘research’ on areas that he is interested in on the web or in the library.  Whatever manner it is I agree he has been doing this in virtual isolation.  He has never actually engaged in any research with any professionals or institutions.  It is evident that F is living according to his own theories and principles, refuses to accept others’ point of views and easily lose his temper.  I agree with M that F lives in his own world, without empathy or the ability to understand other people’s points of view.

118.  No doubt, F considers that he is very knowledgeable, much more so than most of the people he met, including of course Mr Li, Dr Knight, Ms Wong and the court.  In his eyes, nobody, except he, is able to fathom or has sufficient ability, qualification and knowledge to appreciate the real issues being faced by his son; and again, only he, has the panacea to all these issues.  I accept that F is highly educated and intelligent, but so is M.  Yet, it does not necessarily mean he has the panacea to his son’s problems.  Quite to the contrary, he has no clues to the issues being faced by CY.  I can understand M’s concerns.  As far as CY’s welfare is concerned, she was unable to have any constructive conversations with F over any issues touching upon the welfare of the son.  I am convinced that things have not changed; so I doubt very much M will be able to do so in the near future.  If the parties are not able to engage in any sensible dialogue with a view to come to a reasoned solution, I do not think it is right for me to give an order of joint custody in favour of the parties – to do so would simply not be to the best interests of CY.

119.  I am deeply impressed that M has been able to step in the shoes of her son so as to understand his world.  For instance, when F was talking about the computer coding class that she arranged for CY which is a regular course in schools in the US and the UK but is not being offered in the regular curriculum in Hong Kong, M remarked that the more she understands the more she can teach CY to manage his time.  Another example is M’s response to F’s allegation that she allowed CY to choose his games freely in accordance with his interest and gave the son too much time in playing games.  M explained that the games in question - Lego and Minecraft - are very popular block-building games among teenagers.  They help children to leverage or train their creative skill.  She considered that CY just wants to understand with interest how other teenagers are doing because he wants to make friends.  As a parent, she cannot simply say “no” without considering CY’s feelings; what she should do is to give guidance and let CY learn how to manage his time and to be self-discipline. 

120.  For the above reasons, I must decline to follow Ms Wong’s recommendation.  I have no doubt that it is to be best interest of CY if his sole custody is given to his mother.

Access

121.  Due to the uncertainties surrounding F’s mental illness, the bi-weekly lunch access was suspended by an order of 8 May 2018.  On 3 September 2018, at that time F had already been discharged from the hospital, I gave an order that access may be resumed if the Social Welfare Officer is of the view that it is appropriate to do so, in which event, access is to be arranged by the Social Welfare Officer.  It is not in dispute that access has not been resumed since the relapse of F’s illness.  According to the latest SIR, this is due to the explicit refusal of CY.  When CY was being invited to see F, he firmly rejected.  Ms Wong therefore recommended that access may be taken by F writing an email to CY once every two weeks so as to maintain the father-son connection.  To avoid pressure on CY, he should be free to decide whether to give a reply or not.

122.  M agrees to Ms Wong’s proposal whilst F maintains that face-to-face access has to be restored.

123.  F sees no reason why access could not be restored. He disagrees that CY is scared of him. He produced some video footage and photographs taken shortly before M’s moving out of the former matrimonial home to show that CY went out with him as usual and was close to him as before. The attitude that CY now has is due to the improper psychological influence of M. Clearly, F is accusing alienation on the part of M but this is unsupported by any evidence.

124.  I agree with F that face-to-face access is most ideal but the reality is it is not workable for the time being.  CY is now 16 years old. He has his own view and there would certainly be backfire if he is being forced upon to have face-to-face access when he is not yet prepared to do so.

125.  I consider email as a communication tool is more appropriate than WeChat as suggested by F.  By email, F could write longer and more articulated messages and CY would feel less pressurized to give a response.  When CY decides to give a response this would probably also be a longer and a more thought-out one.

Orders

126.  For the above reasons, I give the sole custody, care and control of the child of the family to the petitioner with the following defined access to the respondent:

The respondent may have email access to the child of the family once every two weeks.  The child is not obliged to respond unless he wants to.

Costs

127.  Since this is a children proceeding I will adopt the usual approach of no order as to costs.  I give an order nisi that there be no order as to costs in respect of the children proceedings (including all costs reserved), with counsel certificate.