G, by his next friend CHAN LUI LUNA v. BVR AND OTHERS

HCMP 1803/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1803 OF 2014

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D E C I S I O N

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Introduction

1.  The 1^st defendant is the mother of the ward G, who is the plaintiff and of whom Ms L Chan of PathFinders is the next friend.

2.  The present application before this court concerns interrogatories filed and served by the Mother on the plaintiff in August 2016 (“Interrogatories”).  The plaintiff opposed to answering the same and issued an application for, among other things, an order that the Interrogatories be withdrawn.

Brief Background

3.  I have mentioned briefly the background in my earlier decision of 9 September 2016 in these proceedings (“09.09.16 Decision”) and I will continue to adopt the same abbreviations therein.  In short, these Wardship Proceedings were brought by Ms L Chan of PathFinders as next friend of G in July 2014 after the Mother was detained by the police on 4 June 2014 for working illegally in Hong Kong and G was admitted to the Po Leung Kuk residential care home.  Since the issue of these proceeding, G has been a ward of this court.  He will be 8 years old in April this year.

4.  Since about February 2015, G has been living with his Foster Parents Mr and Mrs Kwong, and the Mother has been having regular access.  G attended a local kindergarten from December 2014 until July 2015, and since September 2015, he has been attending a Government primary school and is now studying Primary 2.

5.  The Mother is seeking custody care and control of G and for G to be de-warded. This was opposed by Ms L Chan as next friend of G.   Originally, the trial of these proceedings was fixed in May and July 2015 but eventually did not take place due to the Consent Order.  However, as the parties have not been able to agree to the matter of custody, care and control of G, and also of the wardship, on 5 May 2016, this court gave directions for the trial to be set down for 10 days.  I understand that the trial is now fixed in January 2018.

6.  The Interrogatories sought by the Mother related mainly to the Temporary Guardian, namely a Mr Yau who was said to be a “temporary guardian” of PathFinders and who had guardianship of G of about two weeks between 5 July 2013 and 19 July 2013 (“Guardianship Period”).  It is understood that G resided with Mr Yau and his family during the Guardianship Period.

The relevant general principles on interrogatories

7.  Under Order 26 rule 1(1) of the Rules of the High Court, a party to any cause or matter may serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either (a) for disposing fairly of the cause or matter; or (b) for saving costs.

8.  Further, Order 26 rule 1(3) states that a proposed interrogatory which does not relate to such a matter as is mentioned in rule 1 (1) above may not be administered notwithstanding that it might be admissible in oral cross-examination of a witness.

9.  Counsel for the plaintiff, Mr Shaphan Marwah, also referred to Lee Nui Foon v Ocean Park Corp (No 2) [1995] 2 HKC 395 where it was held , among other things, that[1]:

(i) The interrogatories must relate to a ‘matter in question’ between the parties and must be ‘necessary’ either for disposing fairly of the cause or matter or for saving costs;

(ii) The interrogatories must not be fishing, oppressive, prolix or imprecise;

(iii) The interrogatories must not be questions which go to the evidence the opposing party intends to adduce;

(iv) The interrogatories must not be questions which require an answer which is a matter of opinion or for an expert;

(v) The interrogatories must not be questions which go to the facts which will assist in establishing the opposing party as opposed to the case of the party seeking to interrogate;

(vi)  If the interrogatories do not comply with the requirement of the rules under Order 26, they may not be administered.  Even if they do comply with the rules, nevertheless the court retains an overriding discretion as to whether or not to allow them to be administered.  Where interrogatories without order are served, the court may order them to be withdrawn.

10.  There was no dispute in relation to the above general principles.

The Mother’s Grounds for administering the Interrogatories

11.  The Mother’s solicitors wrote to the plaintiff’s solicitors on 5 September 2016 in relation to the Interrogatories setting out their reasons for administering the Interrogatories:

(i) It was the Mother’s claim that G’s self-harm behaviour was a result of his stay with Mr Yau during the Guardianship Period, and not due to the Mother’s alleged past treatment of abuse and neglect of G (“Causation Issue”);

(ii) The Interrogatories related to the ‘neutrality’ of PathFinders (“Neutrality Issue”).

The Causation Issue

12.  Mr Marwah submitted that the Mother had not put forward a case setting out how she said G’s stay with Mr Yau had caused him to self-harm and there were no allegations of mistreatment of G by Mr Yau.  

13.  Mr Marwah further submitted that whether the Mother or the Temporary Guardian caused G’s self-harm is not an issue in these proceedings.  He submitted that the plaintiff is not alleging that G’s self-harm behavior was caused by the Mother’s abuse and neglect and that the plaintiff is not seeking such a finding in the forthcoming trial, and also such a finding would likely to require expert evidence.

14.  Although in the 5 September 2016 letter from the Mother’s solicitors, they referred to G’s self-harm, in fact, in the Mother’s 9^th affidavit, she opposed the plaintiff’s present application and mentioned that the change of G’s behavior was after his stay with the Temporary Guardian and that she had raised her concern with the Social Welfare Department.  The Mother had also said that one of the allegations made by PathFinders was G had emotional disturbances and that the PathFinders were trying to blame her for G’s mis-behaviour or trying to support their case that the Mother had ill-treated G, but all G’s behaviour manifested after his return from the Temporary Guardian.  Thus, the Mother’s allegations of G’s behaviour were not limited to only self-harm but general emotional disturbances and misbehaviour.

15.  Mr Marwah referred this court to what Ormrod LJ had expressed in Re CB (a minor) [1981] 1 All ER 16:

“Ever since J v C [1969] 1 All ER 788, [1970] AC 688, the principles are absolutely clear: the court in its discretion must decide what the paramount interests of the child require. It is not concerned with allocating blame or adjusting rival claims. It has to make a decision sufficiently difficult in all conscience, but the decision it has to make is what is in the best interests of the child at this stage[2].”

16.  It has also been said by Lam VP in CLP v CSN & Anor CACV 255/2015, unrep, 18 October 2016:

“The crucial consideration is whether there is any real need for the Court to exercise the wardship jurisdiction in the interest of the child and it is a broad discretionary jurisdiction with the ability to develop in light of prevailing social conditions.”

17.  Mr Marwah has also submitted that the welfare plan for G should be “forward looking” although history of the Mother’s parenting capacity is relevant. 

18.  Whatever Mr Marwah may submit now, PathFinders have made some very serious allegations against the Mother.  In their letter dated 5 December 2013 to the Director of Social Welfare at that time, the PathFinders were alleging that G was facing imminent danger of sexual abuse and exploitation, physical abuse, psychological abuse, undernourishment and neglect.  They continued to express their concern that G remained in danger of neglect and abuse in their letter to the Director of Social Welfare on 1 March 2014.

19.  After the Wardship Proceedings were instituted, this court called for a social welfare report, and the 1^st SWR was at end of September 2014.  It was reported by the social worker Ms Virginia Chan that G had referred to the Guardianship Period when he did not see his mother and he told the social worker that there was 2 year old baby in that family.  G also told the social worker that he did not like living with that family and he had hit the 2 year old baby’s head, but said her parents were not angry. Further, the Mother reported to the social worker that G had said that he did not like staying with the Temporary Guardian.

20.  The social worker said from information gathered from the Mother reflected that G exhibited certain unstable emotions after his placing with the Temporary Guardian, and when the social worker tried to explore more relevant information by paying a visit to the Temporary Guardian, she failed initially to find the exact abode and eventually was shown by the landlord to a room that was said to have been rented to the Temporary Guardian and was told that the Temporary filed to pay the rent and that the landlord had to call the police.  Further, the social worker was unable to contact the Temporary Guardian at the telephone number provided by the PathFinders to the Mother, and was not able to contact him.

21.  I accept that by the time that the social worker conducted investigation, it was in September 2014, and that the Temporary Guardian could have moved away but even so, it wold seem from the 1^st SWR that the living environment of the Temporary Guardian did not appear to be satisfactory.

22.  Anyway, in the 2^nd SWR, the social worker had again reported that the Mother that right after the stay with the Temporary Guardian, she noticed that G had self-harming behavior, and she the Mother was puzzled what had happened to G during the Guardianship Period.  The social worker also observed that the PathFinders never gave any account on G during his stay with the Temporary Guardian.  Further, the social worker also reported an incident on 11 July 2013, during the Guardianship Period, that whilst attending St Teresa’s Hospital arranged by PathFinders, G had displayed violence towards PathFinder’s case worker by ‘strangling’ her, by both hands being wrapped around her neck.

23.  As pointed out by the Mother’s Counsel, Ms Chow, according to a letter sent by PathFinders to Dr Connell in July 2014, it was stated that the Temporary Guardian was a “regular temporary guardian known to the Social Welfare Department”.  The social worker Ms Virginia Chan had said she checked and there was no such thing as a “regular temporary guardian” on the Social Welfare Department’s service list, nor was the Temporary Guardian’s name ever on the Social Welfare Department’s list of approved Foster Care Parents.  The social worker also in her 2^nd SWR further identified issues in relation to the documents/forms/receipts allegedly signed by the Temporary Guardian to/for the PathFinders.

24.  The Mother first requested Ms L Chan to provide information about the Temporary Guardian on 18 November 2014, and eventually the Mother was informed that the affirmation of the Temporary Guardian would be filed on or before 30 June 2016.  However, subsequently, the Mother was told that his evidence was not relevant and that his affirmation would not be filed.

25.  In determining the custody or upbringing of a minor, under s 3(1) of the Guardianship of Minors Ordinance, Cap 13, this 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 …”

26.  As I have said, most of the PathFinders’ allegations were in connection with the period from about early July 2013 to about June 2014 and indeed 7 out of 8 items of the plaintiff’s Scott Schedule covered the plaintiff’s allegations against the Mother from 2013 until March 2014.  The Guardianship Period falls within the relevant period.  In fact, one of plaintiff’s allegations was that the Mother had made threats to send G away, and the Mother’s response was that she only used this tactic after G returned from staying with the Temporary Guardian in order to stop G from misbehaving.

27.  In any event, according to the plaintiff’s Scott Schedule, this court would have to make findings on those allegations of PathFinders during 2013.

28.  On 4 May 2016, the plaintiff took out a summons seeking a preliminary “Fact-Finding Hearing” on the factual issues contained in their Scott Schedule, and had instructed Mr Coleman SC to argue the same.  This court did not allow any preliminary hearing, but it is clear that the PathFinders were asking this court to make factual findings over their very serious allegations concerning the Mother, and this remains the position of PathFinders as seen in Mr Marwah’s skeleton arguments, although PathFinders now say they are not proposing an academic exercise of finding blame, but only attacking the Mother’s previous parenting capacity.

29.  However, by the time of the trial, some of those allegations set out in the Scott Schedule will be almost 5 years old.  Indeed, the social worker has recommended that the Mother be granted sole custody care and control of G notwithstanding all PathFinders allegations.

30.  As matters now stand, and as pointed by Ms Chow, none of those allegations have been withdrawn.  This court will have a duty to consider all the circumstances of the case, and in my view, not simply the allegations of PathFinders against the Mother, but also the Mother’s allegations against PathFinders.

31.  Although it is not the PathFinders’ case that any guardianship of the Temporary Guardian should be reinstated, the Mother had made allegations as to the circumstances under which she contacted the PathFinders in July 2013 to look for temporary foster care for G and how she was then persuaded to give up G and also the circumstances under which G was taken away from her by the PathFinders to the Temporary Guardian.  According to the Mother, she never met the Temporary Guardian nor his wife before G was taken away, nor was she invited to visit the Temporary Guardian, nor was she given the address or telephone contact of the Temporary Guardian or any other details.  It was the Mother’s evidence that apart from one occasion, she was not allowed to see G or even speak to him from 5 July until 19 July 2013, and when G was requested to leave her on 19 July 2013, G was emotional and held her neck tight.

32.  In my view, the Mother is entitled to know what happened during the Guardianship Period.  The Mother’s allegations were against the PathFinders for G’s removal from her during the Guardianship Period which the Mother said resulted in G’s emotional disturbances.  On the other hand, the PathFinders’ allegation against the Mother continued after the Guardianship Period.

33.  The PathFinders did not dispute the relevance or necessity of the information sought by the Mother of the Temporary Guardian until July 2016. 

34.  Having regard to the Mother’s allegations and also the information in the 1^st and the 2^nd SWRs, it is my view that the Mother’s allegations should also be investigated.  I am satisfied that the Interrogatories are necessary for disposing fairly of the disputed issues between the Mother and the PathFinders or for saving costs.

The Neutrality Issue

35.  Having formed the above view, I do not need to deal with the Neutrality Issue.  As pointed out by Mr Marwah, Ms Chow’s submissions did not really touch on this issue.

Conclusion

36.  In the above circumstances, I will dismiss the plaintiff’s summons issued on 5 September 2016 and will allow the Mother to administer the Interrogatories filed on 22 August 2016.

37.  I order that costs be in the cause.  There be legal aid certificate for the plaintiff and the Mother.