PD v. KWW

CACV 188/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 188OF 2009

(ON APPEAL FROM FCMC NO. 6760 OF 2008)

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BETWEEN

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J U D G M E N T

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Hon Hartmann JA:

Introduction

1. This is an appeal from the Family Court arising out of divorce proceedings between the appellant and the respondent.  In a judgment dated 29 June 2009, Her Honour Judge Melloy ordered that the custody of L, the nine-year-old daughter of the marriage, should be given jointly to her parents.  This was qualified by the order that L’s care and control be vested in the appellant, her mother, with the respondent, her father, to enjoy reasonable rights of access including certain defined access.

2. In her appeal, the mother seeks to have the order for joint custody set aside, contending that it is in L’s best interests that she be given sole custody.  The mother further seeks variations to the terms of the defined access granted to the father.

Background

3. The mother, who was raised in Malaysia and is a Malaysian national, is a long-serving member of Cathay Pacific’s cabin crew.  Her first marriage ended in divorce in 1993.  There was one child of that marriage, a son, who was placed into the joint custody of his parents.  He has now reached the age of majority.

4. The father was born and raised in Belgium.  He has a master’s degree in engineering.  He has not been married before.

5. The couple met in or about August 1999.  They were married in Hong Kong in February 2000.  The father left Belgium so that he and the mother could set up home in Hong Kong.  He is employed as the sales manager of an engineering company.

6. L, as we have said, is the only child of the marriage.  She was born on 15 August 2000.

7. In 2007, unhappy differences arose in the marriage which resulted in the parties separating.  It was the father who left the matrimonial home, an apartment in Tung Chung.  L remained in the Tung Chung apartment with her mother.  The father issued divorce proceedings in June 2008, conceding at that time that L should remain in the care and control of her mother but seeking an order for joint custody.

8. When the separation took place, the father moved into an apartment close to the former matrimonial home, indeed it appears to have been in the same complex.  This was done to enable him to remain in close physical contact with his daughter.  The father has since moved into another apartment but it is also, for all practical purposes, part of the same development.  The former matrimonial home, the apartment where L continues to live with the mother, shares the same recreational facilities as the father’s new apartment.  L is able to walk between the two homes.

9. Proximity, however has created difficulties.  These difficulties arose, or certainly took on a greater dimension, when the mother discovered that the father was living with another woman, a Ms D who is now the father’s fiancée.  Unsurprisingly, the distress caused by that discovery was compounded by the fact that the father and Ms D were living so near.

10. On all the evidence, it is apparent that the mother has struggled emotionally to cope with the breakdown of the marriage.  It further appears that much of the mother’s sense of loss and vulnerability has been shared by the daughter.

11. At the end of December 2008, the first of two social investigation reports was filed with the Family Court.  In this report, the first indication was given that, although L enjoyed being with her father and was on friendly terms with Ms D, the fact that there was now another woman in her father’s life caused her considerable distress.  Understandably for a child of such tender years, L had been hoping that the father would return home so that the family could be reunited.  In the first report, the investigating officer wrote: “She [L] believes that they will have a good time when the father comes back.”

12. In the second report, filed with the Family Court in May 2009, another investigating officer wrote to similar effect: “… L expresses her love for both parents and regards both parents as being good to her.  She feels unhappy that she cannot live together with both parents.”  It is a statement of the obvious to say that the father’s relationship with Ms D constitutes on-going evidence that L’s wish will not be realised.

13. It appears that the principal manifestation of L’s distress has been her refusal to stay over with her father unless he is prepared to sleep with her in the same room.  In the second social investigation report, the investigating officer recorded L’s feelings in the following terms: “L [confided in me] that she is scared to sleep alone as she has been used to sleeping together with the mother in the same room.  She admitted that she could not sleep well and cried when she stayed over at the father’s place.  She wishes the father will sleep together with her if she stays over at the father’s place again.”

14. In a report dated 3 September 2009, one which post-dates the judgment which is the subject of this appeal, a clinical psychologist, Dr Kee-on Ng, spoke of L as being “a rather tense, nervous and diffident child”, a child who required coaxing and encouragement to be brought out of her shell.  The psychologist was of the view that L’s emotional difficulties constituted adjustment difficulties caused by the separation of her parents, the difficulties being compounded by her mother’s own struggles to adjust to the breakdown of the marriage.  In his report, the psychologist said:

“Given the recent family breakup, and the aforesaid emotional vulnerability, care should be taken not to aggravate L’s sense of insecurity and emotional reactivity. For this reason, the availability of emotional support and understanding is essential. Specifically, for the time being, she should not be left in situations in which she has to cope with her anxiety and fears on her own in order not to reactivate the kind of anxiety attacks that she suffered last year. Ideally, and given that she fears particularly sleeping on her own at night, she should be accompanied by people whom she is close to,especially at night, until her fear can be overcome.”

15. Concerning L’s marked reluctance to sleep over with her father, the psychologist was of the view that “her unhappiness” was not as a result of meeting with her father per se but was rather caused by her distress and sense of abandonment at not being able to enjoy more of her father’s love and attention when she was with him.  As he said:

“As she rued, much of his time was spent on his girlfriend, instead of his trying to take advantage of her sleeping overnight in the form of the usual father-daughter bonding, which she had longed for.”

16. Before us, the fatheremphasised that there had always been a close bond between himself and his daughter.  The objective evidence supports that assertion.  It is apparent that L seeks a continuing close bond with her father and that, there being no other matters which speak to the contrary, such a continuing bond would clearly be in her best interests.

The first instance judgment

17. In the Family Court, much of the mother's resistance to the father’s request for joint custody was coloured by the breakdown of her own relationship with him and what she considered to be his unreasonable behaviour in bringing about that breakdown.  The judge recorded a number of accusations made by the mother: accusations of the father being dishonest and lying, of the father being more concerned about money than his own daughter.  In a written address to the court, the mother said the following:

“If I gain sole custody, I will not stop involving [the father] in L’s life but with the position of sole custodian it provides me with a buffer in the likely event that [the father] again resorts to his deceitful schemes, roughshod ways, delaying tactics [and] lies… to hamper whatever good plans I have made and continually will be making in the best interests of L.”

18. Before us, the mother spoke of the fact that L had been to a number of schools and was only now in a fee-paying school where she was happy and where her true needs were being met.  She spoke of the father’s resistance to sending her to this last school, identifying this as an instance of the father’s overriding concern to save money rather than looking to the interests of his child.

19. It was apparent that, at root, the mother was worn down by the arguments and hurts that had resulted in the destruction of the marriage and wanted now to be left “in peace”, as she expressed it, to raise L as she saw fit.  She did not want to be disturbed by the father’s continuing involvement in matters such as L’s schooling and extracurricular activities.  She viewed this continued involvement as a source of further conflict.

20. As for the father, during the hearing in the Family Court, he emphasised his desire to remain “an involved parent” in L’s life.  He expressed the concern that, without his active involvement in L’s upbringing, the mother may be influenced to make decisions concerning L that would be tailored more to exact revenge on him rather than to further the child’s best interests.  He said that he was willing to work with the mother.  He asked why it should be that he should be denied joint custody because the mother was not willing to work with him.

21. Before us, the father denied that his primary concern was saving money.  He accepted, however, that he had certain differences of approach concerning L’s upbringing.  In this regard, he spoke of his own humble beginnings in Belgium and his desire that L should not become elitist.

22. As to the vexed question of L’s schooling, the father emphasised that, with assistance, he and the mother had been able to negotiate a sensible solution, one that was in L’s best interests.  He further emphasized that he and the mother had been able to satisfactorily agree a flexible regime in respect of access to L.  In summary, it was his submission that co-operation was possible even if from time to time assistance may be required from a mediator or other qualified third-party.

23. It was clearly of primary importance to the father that he should be recognised in law as remaining L’s father in the sense that he is able to play a continuing role in her upbringing.  As he saw it, if he was denied joint custody, he would retain the responsibility of providing finance but in all other respects would be viewed as little more than an observer in the development of his daughter.

24. In ordering that there should be joint custody, the judge took into account that both social welfare officers had recommended that sole custody be given to the mother.  However, while she acknowledged that these recommendations should be given due weight, on all the evidence, she determined that it would be in L’s best interests to make an award of joint custody.  She said:

“Notwithstanding these recommendations, I am nevertheless going to make an order for joint custody. I do so because although relations between the mother and father are extremely strained and they find it difficult to communicate, it is equally clear that they are able to communicate when encouraged to do so. They did negotiate a sensible solution insofar as L’s future schooling is concerned. They also agreed an entirely suitable schedule for sharing L’s school holidays. This is to be encouraged. The father says that he enjoyed the process and found the assistance of the Social Welfare officers helpful. When asked, the mother said that she did not look upon the continued involvement of a third party very positively. I would, however, urge her to reconsider this. It would be open to the parties to appoint either a parental co-ordinator or a mediator to assist them going forward and I would strongly suggest that they do so. To that extent, this order for joint custody is, I accept, aspirational.”

25. The judge, however, was not prepared to order that care and control of L should be shared, this now being the father’s wish.  The judge ordered that care and control be vested in the mother.  In this regard, she said:

“… it seems to me that it would be an enormous change for L to go from being based with her mother, where she is clearly happy and settled, to a shared care arrangement when there are clearly unresolved and underlying emotional issues.”

The concepts of ‘custody’ and ‘care and control’

26. S. 19 of the Matrimonial Proceedings and Property Ordinance, Cap. 192, directs that, in any proceedings for divorce, nullity of marriage or judicial separation, our courts may make such orders as they think fit for “the custody and education” of any child.

27. Although the discretion given by s. 19 is a wide one, it is not unfettered.  S. 3 of the Guardianship of Minors Ordinance, Cap. 13(1) sets the principles by which our courts must act:

“In relation to the custody or upbringing of a minor, and 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 welfare of the minor as the first and paramount consideration and in having such regard shall give due consideration to –

(A) the wishes 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; “

28. As our law has developed and now presently stands, when a marriage breaks down and the court must ensure the best interests of any child of the union, it will invariably do so by bringing into play the dual concepts of ‘custody’ – whether it be sole or joint custody – and ‘care and control’.  Neither concept, however, is defined in our statute books.

29. Regrettably, empirical evidence suggests that there is a large measure of misunderstanding as to the nature and extent of the two concepts, certainly among lay persons. 

30. At a practical level, a convenient way of understanding the two concepts is to compare the nature of the decision-making that is required to put them into practice.

31. The decisions to be made by a custodial parent are those of real consequence in safeguarding and promoting the child’s health, development and general welfare.  They include decisions as to whether or not the child should undergo a medical operation, what religion the child should adhere to, what school the child should attend, what extracurricular activities the child should pursue, be it learning a musical instrument or being coached in a sport.  A parent vested with custody has the responsibility of acting as the child’s legal representative.

32. By contrast, the decisions to be made by a parent who (at any time) has care and control of the child are of a more mundane, day-to-day nature, decisions of only passing consequence in themselves but cumulatively of importance in moulding the character of the child.  They include a host of decisions that arise out of the fact that the parent has physical control of the child and the responsibility of attending to the child’s immediate care.  They include decisions as to what the child will wear that day, what the child may watch on television, when the child will settle down to homework and when the child will go to bed.  They also include the authority to impose appropriate discipline.

33. We have spoken of the misunderstanding that exists as to the nature and extent of the two concepts.  This is most often manifested in the misperception that, if sole custody is given to one parent, that parent thereby ‘wins’ the right to determine all matters big and small in the upbringing of that child while the parent who is not given custody ‘loses’ the right to have any say in the child’s upbringing.  The present case is a prime example.

34. The mother seeks sole custody because, to use her words, she wants to leave behind the conflict that has marked her relationship with the father since the breakdown of the marriage and wants to be left in peace to be able to raise the child as she thinks best, that is, to be able to determine such matters as the child’s education, religious upbringing and choice of activities free of any disturbance from the father.  She is happy to let the child spend time with the father and is happy to keep the father informed of matters relevant to the child’s well-being but she wishes to reserve absolutely to herself the manner of her child’s upbringing.  

35. Equally, the father fears being deprived of joint custody because it is his view that society will perceive that he has thereby forfeited the rights and responsibilities of a father, being left only with the residual right to spend time with his daughter and the residual responsibility of making a financial contribution to the cost of her upbringing.

36. It is to beemphasised in the strongest terms that if one parent only is given custody, that parent is not thereby given an absolute and independent authority to act without further reference to the non-custodial parent.  Any such potential misunderstanding was quashed in Dipper v Dipper [1980] 3 WLR 626 in which Ormrod LJ said:

“It used to be considered that the parent having custody had the right to control their children’s education, and in the past their religion. This is a misunderstanding. Neither parent has any pre-emptive right over the other. If there is no agreement as to the education of the children, or their religious upbringing or any other matter in their lives, that disagreement has to be decided by the court.”

37. In the same case, Cumming-Bruce LJ, another experienced family judge, said:

“…. it (is) a fallacy which continues to raise its ugly head that, on making a custody order, the custodial parent has a right to take all the decisions about the education of the children in spite of the disagreements of the other parent. That is quite wrong. The parent is always entitled, whatever his custodial status, to know and be consulted about the future education of the children and any other major matters. If he disagrees with the course proposed by the custodial parent he has the right to come to the court in order that the difference may be determined by the court.”

38. A non-custodial parent therefore has the right to be consulted in respect of all matters of consequence that relate to the child’s upbringing.  While the right to be consulted does not include a power of veto, it is nevertheless a substantial right.  It is not merely a right to be informed, it is a right to be able to confer on the matter in issue, to give advice and to have that advice considered. 

39. While therefore a parent who is given sole custody is given the authority, in the event of disagreement with the non-custodial parent, to make the final decision, it should only be made after due consultation and, if the final decision that is made is considered by the non-custodial parent to be inimical to the child’s best interests, the court may be called upon to determine the matter. 

40. Invariably, therefore, the giving of sole custody to one parent does no more thanrecognise that, in the circumstances of the breakdown o f the marriage, the best interests of the child are secured by giving to that parent the authority, if necessary, to make a final decision concerning matters of consequence in the upbringing of the child but only after the other parent’s views have been given full and rational consideration.  In summary, an order of sole custody does no more than add a qualification to the otherwise joint endeavour of both parents in raising their child, that qualification being that the final decision will rest with one parent.

41. For this reason it is often said that there is a thin line between sole custody and joint custody.

42. In the present case, therefore, even if the mother is given sole custody of L, she will not be able to determine such matters as L’s education, religious upbringing and choice of extracurricular studies free of any involvement by the father.  She will remain obliged to discuss such matters with the father and to weigh in the balance all rational advice that he gives

43. Before leaving a consideration of the dual concepts of custody and care and control, it needs to be emphasised that, when a court awards care and control to one parent but rights of access to the other, as in the present case, the court is effectively awarding a form of shared care and control.  This is because, when a parent exercises rights of access, especially staying access, that parent assumes care and control of the child for the time that the child is in that parent’s physical custody.  Rights of access, it is to be remembered, are given – in the interests of the child – to ensure continued bonding between parent and child.

A shift in societal values

44. There was a time when the parents of a child, more particularly the father, had almost absolute authority over that child.  That is no longer the case.  The principle that the best interests of the child – not the authority of the parents – must be the paramount consideration is today almost universally recognised.  As Lord Fraser said in Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1986] AC 112 at 170:

“… parental rights to control a child do not exist for the benefit of the parent. They exist for the benefit of the child and they are justified only in so far as they enable the parent to perform his duties towards the child.”

45. There was a time also, not so long gone, when the roles of the mother and the father in the raising of their child were viewed with almost equal rigidity.  The mother was best left to care for the child, certainly when the child was young.  The father was best left to provide financial support and to exercise rights of guardianship.  As for his contact with the child, visitation was deemed sufficient.  Today, such sexist views are obsolete.

46. Social imperatives change.  When they are important and lasting, the common law can, and should, keep pace with that change.

47. 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.

48. In the United States, for example, shared custody is common.  The courts routinely grant joint custody orders unless one parent is clearly found to be unfit.[1]

49. In England and Wales, the Children Act 1989 has sought to emphasise the continuing parental responsibility of both parents even if an order has been made that the child will reside with only one of them.

50. Other common law jurisdictions – for example, Australia – have made legislative changes to similar effect, that is, where appropriate, to ensure the continued active involvement of both parents in the upbringing of the child, or children, of their marriage.

51. The Hong Kong Law Reform Commission Report on Child Custody and Access of 2005 recommended changes in line with the Children Act 1989 but regrettably, to date at least, little appears to have been done to give the Commission’s recommendations legislative form.

Joint Custody: the proper approach

52. Today, although there has been no change in our law similar to many other common law jurisdictions, orders of joint custody are in no way exceptional.  This is because it is accepted that, in principle, such orders are in the interests of children.

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 recognisingthat, 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.

The joint custody order made in the present case

58. The joint custody order was made by the judge in the exercise of her discretion.  As such, we may not set it aside unless we are satisfied that the judge exercised her discretion on the basis of some error of principle or was so plainly wrong that the only legitimate conclusion can be that she erred in the exercise of that discretion.  The fact that we might have come to a different conclusion is of itself not sufficient.

59. In the present case, the judge directed herself correctly as to the law.

60. As to the exercise of discretion, she took into account and gave due weight to the relevant evidence.  In this regard, she acknowledged the very real desire of the father to play an active role in his daughter’s upbringing.  This was clearly a legitimate matter to take into account.  See, for example, Caffell v Caffell [1980] FLR 169, per Ormrod LJ, page `171:

“… there are cases in which the party who has not got the day-to-day control of the children is anxious to preserve as much of his or her contact with them as possible in the new circumstances where the parties have separated, and there is a good deal to be said for recognizing the responsibility and the concern of the father in this case by making some order which shows that the court recognizes that he is anxious to take an active part in their upbringing.”

61. Concerning L’s feelings, the two social welfare reports made clear that she seeks a close bond with the father; she dreads isolation from him. 

62. The judge further acknowledged that there had been successful co-operation between the parties, even if it required the assistance of a social worker.  L was now settled at a fee-paying school.  There was no suggestion she should be moved from it.  Day-to-day matters of access had also been compromised and agreed.

63. As unreasonable as the mother considered her ex-husband to be and as unwilling as she was to share custody with him, there was no evidence that their ability to communicate concerning matters of real consequence in L’s life had been destroyed.

64. The judgerecognised that, in order to reach agreement concerning L, the parties may require some mediatory assistance, at least for the time being.  But she did not consider that to be an unsurmountable obstacle, not when compared to the advance in L’s best interests.  We have no reason to think she was wrong in that respect.

65. During the course of her submissions, the mother spoke of being left in peace to raise her child as she saw best.  But, as we have said, that approach did not assist her.

66. For the reasons given, we are satisfied that the order of joint custody was an order that fell well within the judge’s legitimate exercise of discretion.  The appeal to set aside the order is therefore dismissed.

Access

67. With care and control of L given to the mother, the father was given reasonable rights of access to include the following:

(i)	Staying access every alternate weekend from 10.00 a.m. on Saturday until 8.30 p.m. on Sunday.
(ii)	On the remaining weekends, day access every Saturday from 10.00 a.m. until 8.30 p.m.
(iii)	Evening access every Wednesday after school until 8.30 p.m.
(iv)	Staying access on those nights when the mother is out of Hong Kong as a result of her work commitments.

68. The mother has sought a variation of these defined terms of access on two grounds, first, the marked reluctance of L to stay overnight with her father at this time and second, the fact that weekends are too heavily weighted in favour of the father.

69. In light of the psychologist’s report, it is apparent that it would not be in L’s interests at this time to be compelled to stay overnight with her father, either at his apartment, where he has a bedroom especially decorated for her, or elsewhere.  As we understand it, this has been recognised by the father.  We would therefore vary the order of access, deleting any staying access.

70. Clearly, however, L would very much like to be able to spend an extended time with her father, both at his apartment and elsewhere when she is on holiday with him.  Hopefully, therefore, this variation will be of short duration.

71. In respect of holiday access, with staying access not presently possible, it would seem to us that, in so far as the father’s employment responsibilities enable him to do so, he should be able to enjoy day access, calculated from 8.30 in the morning until 8.30 at night, for half of each school holiday.  We recognise, of course, that the father’s employment responsibilities may not enable him to enjoy the full extent of this access and in that case we would leave it to the parties to reach a suitable compromise.

72. In respect of the weekends, the mother has submitted that, in practice, the father spends Saturdays with L while she spends Sundays with her.  She would like this to be formalised.  The father did not strongly object and, as matters presently stand, it would seem to us to be a sensible division, one which enables L to enjoy the company of both of her parents over weekends in equal measure.

73. However, as L lives in such close proximity to her father, it would seem to us that, if the weekends are to be shared equally, the father should enjoy evening access to L on two evenings a week, not just one as is presently the case, from after-school until 8.30 p.m.

74. Finally, we make the observation that, in our view, it would be very much in L’s long-term interests if professional help could be obtained without delay in order to find a way in which L can overcome her present insecurities.

Conclusion

Costs

76. This appeal was concerned solely with the best interests of L, the child of the parties.  In cases of this kind, unless there is good reason to make an order to the contrary, the courts do not penalise either party in costs.  We would add that neither party was legally represented.  Nor was either party fully successful.  In the circumstances, we are satisfied that the most equitable order is one of no order as to costs, meaning that each party shall bear their own costs.

Hon Yuen JA:

77. I agree with the judgment of Hartmann JA.

Hon Lam J:

78. I agree with the judgment of Hartmann JA.  Though the line between sole custody and joint custody is a thin one, it is still one with potential practical significance.  A parent with sole custody can determine the place of residence of the child.  The other parent, whilst he or she might have a right to be consulted, does not have the power of veto.  This could have immense significance in terms of removing a child from the jurisdiction.

79. Thus, when sole custody is granted to one parent, our courts usually order at the same time that the child shall not be removed from the jurisdiction unless the consent of the non-custodial parent is obtained.  This would not be necessary if we have the equivalent of Section 1 of the UK Child Abduction Act 1984.  Under that section, it is an offence to take a child out of the United Kingdom without the consent of the other parent or the court.  However, notwithstanding the recommendations of our Law Reform Commission in 2002, the proposal has not been implemented.

80. Likewise, as observed by my Lord, the recommendations of our Law Reform Commission in 2005 regarding Child Custody and Access have not been taken forward.  Had such recommendations been implemented, the respective rights and responsibilities of the parents towards their children would be more clearly and specifically defined.  Judging from the submissions advanced by the parties in this case, I cannot help from observing that with the implementation of such reforms, appeals like the present one could have been avoided.

81. Speaking for myself, I would like to take this opportunity to urge the administration to make some progress in these directions.     

[1]In the United States, ‘joint legal custody’ is differentiated from ‘joint physical custody’.  Joint legal custody is the equivalent of our joint custody.  Joint physical custody is, in our law, the equivalent of joint care and control.