MB v. KMS

FCMP 149/ 2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 149 OF 2012

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J U D G M E N T
(Custody, Care and Control and Removal)

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Introduction

1.  This is a trial on the custody, care and control of the two elder children of the family who are now in the United Kingdom.

Background

2.  The parties are still legally married, notwithstanding it is undisputed that they separated from each other since 24 February, 2011.  So far neither party has taken out any petition for the dissolution of their marriage. 

3.  Both the applicant mother and the respondent father are Pakistani. 

4.  The applicant was born in Pakistan and is now aged 29.  The respondent was born here and a permanent resident of Hong Kong.  He completed his secondary education in Pakistan and returned to Hong Kong in December, 2006.  He is now 35 years old.

5.  The parties got married in Pakistan on 21 June, 2008.  This was an arranged marriage.  The marriage is the first marriage for the applicant but it is the second one for the respondent.

6.  Shortly after the marriage, the applicant was granted permission to come to Hong Kong as a dependent of the respondent in about August, 2008 and lived with the respondent and his mother in the matrimonial home.   She gave birth to the eldest son KMA on 5 March, 2009, who was followed by his sister KAA, born on 17 June, 2010.

7.  Unfortunately, marital dispute arose which led to the applicant moving out of the matrimonial home on 24 February, 2011, leaving KMA and KAA behind.  At that time, she was already pregnant with the youngest son KME.

8.  A few months after that, on 8May, 2011, the respondent took the elder children to England, leaving them behind to be taken care of by his younger sister RJ and returned to Hong Kong for a living.

9.  Meanwhile, the applicant gave birth to the youngest son KME on 2 August, 2011.

10.  Hence, the situation is KMA and KAA have since May, 2011 been living in England and are being taken care of by their paternal aunt.   As for the KME, he has always been taken care of by the applicant.

11.  KMA, KAA and KME are now aged 5, 3 ½ and 2 ½ respectively.

Parties’ Applications

12.  The applicant’s Originating Summons covers all the 3 children.  In brief, she seeks for the return of KMA and KAA, for an order to prohibit the respondent from removing any of the children out of the jurisdiction of Hong Kong without leave of the court, for the custody, care and control of the 3 children and for maintenance for the benefit of the children to be paid by the respondent.  In the meantime, she also seeks interim access to the elder children.

13.  The respondent also took out his summons on 24 April, 2013 seeking the custody, care and control of KMA and KAA and for leave for them to be removed from Hong Kong.  In the same application, he also sought for an order that the custody, care and control of the youngest son KME be granted to the applicant with reasonable access to him. 

14.  Thus, it can be seen that the parties in reality has no argument over the custody issue of KME.  As a matter of fact, the Social Investigation Report dated 28 June, 2013, which was specifically called for to deal with KME, also opined that it is in the best interest of KME to continue to live with his mother in a familiar home environment.  It is also my view that the recommendation should be adopted.  Hence, by on order dated 11 July, 2013, the custody, care and control of KME was granted to the applicant with reasonable access to the respondent.  At the same time, by consent, leave was granted for KMA and KAA to continue to remain outside the jurisdiction of Hong Kong.  I will refer to this consent order again in later part of this judgment.

15.  Hence, what are left are the disputes surrounding the elder children.

16.  As regards interim access on KMA and KAA as prayed for by the applicant, at the invitation of the court, the respondent gave an undertaking to return them to Hong Kong during the summer vacation of 2013 and further undertook to inform the applicant’s solicitors of the date of return at least 2 weeks before the return so that access could be arranged.

17.  The elder children returned to Hong Kong from 22 June, 2013 to 13 July, 2013 during which access was arranged by the social welfare officer on 6 and 13 July, 2013 for about an hour each.  It was between the two accesses that with the consent of the parties, the court granted leave for the elder children to continue to remain outside the jurisdiction of Hong Kong. 

18.  Further, throughout the period telephone access has been arranged for the applicant but she complained of having difficulty in speaking to the children.

The Law

19.  The court is guided by the principles set out in section 3 of the Guardianship of Minors Ordinance, Cap 13,

Section 13

(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) …, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other;”

20.  In short, the court shall regard the best interests of the child as the first and paramount consideration.

21.  Both are asking for the sole custody, care and control of the elder children.  Apart from the evidence of the parties, a social investigation report (“SIR”) and an international social investigation report (“ISIR”) were called for to assist the court.  Mr Lam, the investigating social welfare officer also testified in court.

The Applicant’s Case and Evidence

22.  The applicant was brought up in Pakistan.  She is the fourth among the 6 children of her parents.  Except her eldest brother who is living in UK, her other siblings and her parents are all living in Pakistan.  Her father, aged around 60, has retired and her mother, aged around 50, is a housewife.  Before coming to Hong Kong in 2008, she had spent all her life in Pakistan.  She received education up to primary level and has never worked, whether in Pakistan or in Hong Kong. She could not speak Cantonese and could recognise English alphabet only.  She however said that the she now knows a bit more as she has studied English here.

23.  After leaving the matrimonial home, she was arranged by the Social Welfare Department to stay in a shelter with KME for about 1 ½ years until she moved to the present place of abode in July, 2012 which is a cubicle of about 150 square feet at a monthly rental of $2,700.  The cubicle is divided into a room and a toilet cum kitchen.  The room is equipped with a bed, a wardrobe, a cupboard with a television on the top, a refrigerator, a microwave oven and an air-conditioner but it has no window for ventilation.  The kitchen has an electric heater for bathing and a cylindrical petroleum gas for cooking.  According to the SIR, “the cubicle is tidily kept but the living condition is limited in terms of space and ventilation”.[1]

24.  The applicant is now living on CSSA given to KME in the region of $7,000, inclusive of rental allowance.  Since she has been granted the custody of KME, her visa to stay here has been extended for another year.

25.  With the consent of the respondent, the applicant returned to Pakistan with KME for the purpose of vacation from 22 January, 2014 to 20 March, 2014.

The Respondent’s Case and Evidence 

26.  The respondent’s father, born in Hong Kong and now aged 75, is spending most of his time in UK. The respondent is the third amongst the five siblings.  His eldest sister FAJ, youngest sister RJ and younger brother SA are also living in UK, while his elder sister is living in Hong Kong with her husband and 2 children. The respondent’s mother is living with him in a public housing unit in Shaukeiwan.  The respondent has been working as an office assistant in a carpet company in Central since February, 2010 earning a monthly salary of $5,200.   He admitted having taken the elder children to UK on 8 May, 2011 and entrusted them to the care of RJ who is living in a town in Greater Manchester.  RJ is a single mother with 2 children of 7 and 9 years old respectively.  Living chose-by is also the eldest sister FAJ, who is living with her husband and 4 children, 3 of them are going to university. 

27.  The respondent said he stayed in UK for 2 months before returning to Hong Kong.  He talks to the elder children through mobile phone or internet on a daily basis and he visited them 4 times a year during long holidays.  It was made possible because he worked 7 days a week; in return his employer allowed longer leave period.  KMA is now in the reception year of a primary school nearby and KAA is attending nursery class in the same school.  During the weekdays the children stay with RJ; and in the weekends and Sundays they would have swimming and martial arts class and normally stay at FAJ’s home.

28.  The respondent’s younger brother SA is working as a security supervisor and has already had a job offered to him.  The respondent said it is his intention to settle in UK and to stay with the children.  He will be the parent with full parental responsibility for the children with the continued support of his family.   He and also the elder children are British citizens having the right of abode in UK. However, KME is not because the respondent is not his custodian parent. 

29.  The elder children will return to Hong Kong this coming summer for not less than 4 weeks.  He undertakes to let his solicitors know a month before the return so that proper and regular access could be arranged.  He realizes there is a problem that the elder children mistook RJ as their mother, he will do his best to explain to them that they have a mother in Hong Kong.

30.  As mentioned above, this marriage is the second one for the respondent.  He first married in December, 2006 and this marriage bore a son.  The respondent said this son is a US citizen and he, now 6 years old and in primary 2, is living with his mother in New Jersey.  He said because he refused to live in the United States, his wife divorced him in Pakistan in about June, 2008.   He maintains contacts with the son but he does not need to maintain his former family.

31.  Mr Lam, the social welfare officer, neatly summarized the ISIR, in para 20 of his SIR,

“… the children were properly cared for by their paternal aunt in (name of the town).  Both children were up to date with their immunization programme and the health professional had no concern regarding their health or development.  The children attended nursery or play group regularly and identified themselves with Islamic faith.  The children had steady emotional and behavioural development except they were very distressed to the father’s leave to return to Hong Kong.  The basic care needs of the children were met in an appropriate and organized manner and the home environment was safe.  The family members showed emotional warmth to the children and were responsive towards the children and managed their behaviour appropriately.  The extended paternal family was very supportive and took the children for outings and undertook activities with them.  The living condition of the paternal aunt’s home was more than adequate.  The children received welfare benefits apart from financial support from the paternal uncle. The family engaged well with the nursery and local children’s centre the children were attending.  Since the children had resided with their paternal aunt for much of their young lives, they referred to their aunt as mother and any changes would have a detrimental impact on their emotional wellbeing, as being of a young age they did not yet have a fully understanding of their family situation.  Some life story work should be undertaken by the family to ensure the children were fully aware of their identity and parentage.  Last of all, there is no person currently in the UK who has parental responsibility for the children…”.

32.  Mr Lam has his own conclusions and recommendations in para 23 of his SIR,

“23.  A stable home environment with continuity of physical and emotional care is of paramount consideration to the children.  Since the children are adjusting well in UK under the proper care of the paternal family, the Investigation Officer opines that it is not in the best interest of the children to remove them from a familiar and well-settled home environment in UK to Hong Kong and disrupts the continuity, not to mention the applicant’s weak social support, low education background, language barrier and unfamiliarity in Hong Kong are hurdles to resume the care of the two children separated for two years.  If the respondent sticks to his plan to migrate to UK for good and reunion with the children, the Investigation Officer recommends him to have the custody of the two children in UK.  If the respondent remains status quo and stays in Hong Kong with his mother while only visits the children periodically in UK, the Investigation Officer has reservation to recommend him custody in such a manner, as the ISWR stated that the children were strongly attached to the respondent and felt very distress with the constant departure of the father. Joint custody is not practicable at present as both parties are in high conflict and cannot reach reasonable compromise at present.”

33.  In evidence, Mr Lam maintains his recommendations.  He testified that since it seems nothing much has changed concerning the children, if the respondent is going to settle in UK, he should be given the custody of the children.  He highlighted that his suggestions in SIR was based on the fact that the children had developed a close relationship with their aunt.  Comparing the community support, education level and language barrier between the applicant and the respondent, he feels that he is more at ease to let the paternal aunt to take care of the children but he made it clear that he does not approve of the respondent’s taking the children away to UK as it caused them emotional disturbance.  If the children have to be taken back to Hong Kong again, he believes it would be harmful to them, but at the same time, he emphasises that the applicant’s interest should not be ignored.

Discussion

34.  There is some dispute over the circumstances under which the applicant left the matrimonial home, leaving the children behind.  The applicant alleged that she was expelled but on the other hand, the respondent said she left home voluntarily.  In trial and as it was in the CDR, the applicant argued that this is a factual dispute that needs to be determined, hence Mr Yeung tried to probe into this in trial.  With respect, I do not agree.  Since it is common ground that the parties, in particular the applicant, are loving and caring parent and what is concerned here is the prospective arrangement for the children, I do not think how the applicant left the matrimonial home is relevant.  This would serve no purpose other than adding fuel to the bitterness and anguish between the parties.

35.  As I indicated in the trial, this is a choice of a lesser evil.  The children were up-rooted from their home and implanted into an alien environment.  Further, the departure of the respondent must have added much emotional distress to them.  I am rather relieved to see that they have now adjusted well in the new environment.  I entirely agree with Mr Lam’s observations and conclusions.  As a matter of fact, there is virtually no challenge at all from the applicant or her solicitor Mr Yeung on the soundness of Mr Lam’s conclusion.  Leaving the undesirable impact that may cause to the children if they have to be brought back after having stayed in UK for 3 years by now aside, the objective evidence is that the applicant suffers from her limitations as referred to above.  I have great doubt over the applicant’s capability to resume the care of all the 3 children given her weak family and social support, low education background, language barrier and unfamiliarity in Hong Kong.  I do bear in mind that there could be supportive social and community services around to assist the applicant in the deliberation of her parental duties but the point is, if she is given the custody, care and control of all the 3 children, the onus would be on her alone as the primary carer of them and I have great reservation as to whether she would be competent to take care all of them single-handedly.  The applicant’s Updated Statement of Proposal only states that the children will reside with her at such address(es) in Hong Kong as the applicant may from time to time think fit and they will study at such school(s)/college(s) in Hong Kong as the applicant may from time to time think fit.  As the proposal is devoid of particulars, in trial I invited Mr Yeung to assist me by letting me have more particulars but nothing came forward.  I can understand the predicament of the applicant to whom I have sympathy.  To a certain extent she is also new to Hong Kong; and perhaps the reality is there is nothing concrete that she is able to offer.  In my view, certainty as to the living and the well-being of the children is an important factor that I should consider.  Now that the children have a stable and satisfactory environment, when compared to the uncertainty that they may face if they are to return to Hong Kong, I have no doubt that it is to their best interest that they should continue to remain in UK.

36.  Mr Lam drew the court’s attention to 2 areas of concern, as revealed in ISIR.

37.  The first is that during the investigation by the English social welfare officer, it was found that the children had mistaken RJ as their mother.  Mr Lam explained that when leaving for UK, KMA and KAA were merely respectively 2 years and 8 months old, it was a very important stage for bonding to be built between the children and their parents through caring, pacifying and playing with them.  During the long period of care by RJ, in the absence of any explanation by the family members, the children mistook the aunt as their mother.  Mr Lam went on to say that according to his understanding, the English social welfare officer was of the view that if the children are to separate from the aunt, this could have a detrimental impact on their emotional well-being.  Thus, some life story should be undertaken by the family to ensure that the children are fully aware of their identity and parentage.  To me, it would mean that the children should be appropriately explained of the situation that their parents have separated and that their mother is in Hong Kong together with their younger brother.  On this, the respondent agrees that he would try his best to ensure the children know well that their mother is in Hong Kong.  I will hold the respondent onto this acknowledgement and will ensure that this is done.  Further, I have no doubt that what I should do is to ensure proper and adequate access be available to the applicant.

38.  The second area of concern is that for the time being there is no person currently in UK who has parental responsibility for the children.  Mr Yeung challenged whether the respondent has a strong intention to settle in UK.  On the evidence before me, I agree there is some validity in the challenge.  No doubt, it is of importance that the respondent should join the children in UK, stay with them and take up the parental responsibility. Through his solicitor Mr Pickavant, the respondent has undertaken to the court that he would leave UK for good within a month, make UK his home and to stay with the children.  Again, I will hold the respondent onto the undertaking that he is to leave UK within a month of this order and this undertaking will form part of the order.  Mr Yeung also asks for the respondent’s undertaking that he is to stay in UK for not less than 300 days.  To me, it should be sufficient for the respondent to undertake that he is to make UK his home and to live with the children.  Parties’ solicitors should draw up the appropriate undertakings for the court’s approval.

39.  I agree with Mr Lam’s observation that both parties are in high conflict and are not able to reach any reasonable or sensible compromise regarding the welfare of the children for the time being. I am of the view that joint custody is not a viable option.  

40.  I therefore give an order that the custody, care and control of KMA and KAA be granted to the respondent.  I also grant leave for the children to remain outside the jurisdiction of Hong Kong for the purpose of living in UK.  The respondent should file the general undertaking to return the children within 14 days of the order.

41.  I am conscious that this would result in a split custody situation but in my view, this is the best that can be devised for this family for the time being.

Access

42.  Turning to access, it is rather unfortunate that Mr Yeung only rose for the very first time the applicant’s proposal in his closing submissions; it means that the proposal, as far as its practicability and workability are concerned, was not put to the parties and Mr Lam for comments.  This is highly unsatisfactory.  As a matter of fact, his closing submissions focused essentially on how access should be exercised by the applicant.  Upon my enquiry, Mr Yeung’s reply was that the applicant is merely “realistic” by focusing on the access issue.

43.  It is however somewhat fortunate that the respondent is agreeable to a very large extent the applicant’s proposal.  Thus, it has been agreed that the applicant is to have daily telephone and video/skype/facetime access from Monday to Friday with not less than 15 minutes each.  The appropriate time is agreed to be at 12:30 am (Hong Kong time) which is 4:30 pm in the afternoon of UK.  I give an order in terms of this agreement.

44.  The parties also agree that the respondent is to bring the children back to Hong Kong every year for access.   Mr Yeung readily accepts that given the limited living environment of the applicant’s place of abode, staying access may not be appropriate for the time being, he however asks for daily access on each and every day on full-time basis during the 4 weeks when the children are in Hong Kong.  I must confess I do not quite understand what he means by “full-time”; it may mean from dawn to dust or during office hours.  Be that as it may, I do not think it is appropriate or realistic.  Mr Pickavant has reservation over the length of each access.  I agree with him that the children may need to see other relatives or have other activities.   In my view, for each access to be not less than 5 hours on 5 days out of a week should be perfectly realistic.  This would be the order I give. I would also hold onto the respondent’s undertaking to return the children annually for not less than 4 weeks for the purpose of access.

45.  Finally, Mr Yeung asks for access to be exercised by the applicant together with KME in UK.  Mr Pickavant, on his client’s behalf, is not agreeable to the proposal.  He expressed that the applicant might have problem with getting her visa.  To me, I do not see this as a reason for not granting this access; after all it is up to the applicant to solve the visa problem for herself and for KME.   I therefore grant the applicant access to the children in UK once every year.  As this matter has not been fully canvassed in trial, the particulars should to be worked out and agreed by the parties when it is to be implemented, failing which the parties should seek directions from the court.  Hence, there be liberty for the parties to apply.

46.  One final matter regarding access is that Mr Yeung asks for KME’s air-ticket to be borne by the respondent if access in UK is to be exercised to which Mr Pickavant objects.  As I said, Mr Yeung should have brought this matter up to the respondent when he was giving evidence, for instance, the issue of whether he is financially capable of doing so should be put to the respondent.  Since Mr Yeung failed to do so, I consider the fairest way to do is not to allow this request.

Updated SIR and ISIR

47.  Finally, I accept Mr Lam’s suggestion that there should be an up-dated SIR and ISIR so that the court and the applicant could have a better understanding of the children’s situation in UK.  I therefore give an order that the access be supervised by SWD for 12 months.  An up-dated SIR and ISIR be called for and be available within 3 months after the expiry of the supervision period.

Costs

48.  Before I leave this matter, I must say my impression is that the applicant’s application for custody, care and control of the elder children is at most half-hearted after the release of the SIR and the ISIR for the following reasons.   First, as I mentioned above, there is a dearth of concrete proposal from the application on the prospective arrangement for the children if they are to return to Hong Kong.  Secondly, all along there is virtually no challenge from the applicant regarding Mr Lam’s observations and recommendations made in his report.  Thirdly, and most importantly, the applicant even consented to an order being made in the callover hearing of 11 July, 2013 granting leave to the elder children to continue to remain outside the jurisdiction of Hong Kong.  This allowed the children to return to UK in July, 2013 after their summer vacation.  If the applicant was genuinely seeking their return and custody, it is difficult to understand why she would have consented to their departure.  Fourthly, it was only when it came to the closing submissions that the applicant put forward her proposal regarding access for the sake of, on Mr Yeung’s terms, being realistic.  By that time, the parties had already spent a whole day on trial.  Both parties are legally aided.  Since public purse is involved, I direct that a copy this judgment be forwarded to the Director of Legal Aid for his reference.

49.  For the reason that this matter relates to children, though not without some hesitation for the reasons that I have given in the foregoing paragraph, I give an order nisi that there be no order as to costs on the custody and access issues.  The applicant’s and the respondent’s own costs to be taxed in accordance with Legal Aid Regulations.

Representation