C v. T

IN THE DISTRICT COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

SUIT NO. 1209 OF 1994

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J U D G M E N T

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1. This is the parties' contested application for custody of their 2 children of the family, daughter CH who was born on 7th June 1983 and will be 15 soon, and son CL who was born on 12th August 1990 and is now 7 1/2. A brief background of case and the proceedings would be useful.

2. The parties were married on 13th September 1972 in San Francisco, California, U.S.A. where they were then university students. Upon the Father's graduation from dental school, the parties decided to settle in Hong Kong where Father has since been practising as a dentist whilst Mother stayed home as a housewife and to look after the children.

3. On 1st December 1991, due to unhappy differences between them, the parties decided to live apart for a cooling-off period when the Father moved out of their 3 storeys house in Shatin to reside by himself in a nearby apartment whilst Mother and the 2 children remained living in the former matrimonial home. Unfortunately, the cooling-off period turned out to be a permanent separation and on 24th February 1994 Father filed for divorce under the present proceedings based on 2 years' separation with Mother's consent, as the law then was.

4. In his petition the Father initially agreed that custody of the 2 children should remain with the Mother and he only sought access including staying access. He also proposed in the petition, inter alia, for Mother and the children to continue to reside in the former matrimonial home until her re-marriage or the children reaching their age of majority. However the Mother failed to give her consent to the divorce and as a result no further stays were taken in the proceedings until September 1994 when Father applied to amend his petition to include claims for custody of the children, and on 11th May 1995 he filed a summons for interim custody of the children. In his supportive affirmation Father complained of difficulty in his access to the children and of the various behaviour of the Mother such as abandoning CH on the street or locking her out of the house, forcing her to skip school in order to practice her piano or singing lessons, refusing to allow her to have her own bedroom rather than having to share the same bedroom with Mother and CL, and hitting strangers on the street for apparently no reason, which caused him great concern for the children and his decision to claim their custody.

5. At the hearing of the Father's summons on 24th July 1995, the Mother failed to appear and Judge Hartmann, as he then was, adjourned the hearing pending investigation by the Social Welfare Department, and granted the Father interim visiting access to the children on every Thursday afternoon and Sunday afternoon being the Father's days off, and staying access on alternate public holidays from 7:30 p.m. on the evening before the holiday began until 9:00 p.m. on the last day of the holiday as well as 1 week in the children's summer holiday.

6. On 14th September 1995 the Social Welfare Department requested further time to submit the investigation report as it was felt that psychological assessment of the parties and the children was necessary. The request was granted and the Social Investigation Report and the Psychological Report were submitted to Court in January 1996. Both reports revealed that although the Mother was all along the primary carer of the 2 children who were then attending Form 2 at Shatin College and Primary 1 at its affiliated Shatin Junior School respectively, there were problems as to her relationship with them in particularly CH, and that her personality and parenting methods were severely criticized. Both reports found the Father to be a better parent and recommended that custody of the children be given to him.

7. For reason unknown to me, no steps were taken to restore the hearing on interim custody until late June 1996, more than 5 months after the reports were submitted into Court. On 2nd July 1996 Father filed another affirmation again complaining further difficulties as to access despite the access order granted to him a year ago. By this time Mother had found legal representation and on 23rd July 1996, 3 days before the scheduled hearing, she filed her 1st Affirmation opposing the Father's application, denying that she had ever obstructed his access to the children or her behaviour to the children as alleged by him, and alleging that he neither had the time nor the ability to take proper care of the children. She however did not make any response in this affirmation to the findings or observations in either the Social Investigation Report or the Psychological Report.

8. At the hearing on 26th July 1996 which was sat down for 1 day before Deputy Judge Geiser in Chambers, both parties as well as the Social Welfare Officer Ms. Yuen and Clinical Psychologist Ms. Chan, the respective maker of the 2 reports, were called to give evidence and were cross-examined. Not surprisingly the hearing could not conclude on that day and was adjourned to 18th October 1996 for final submission. On 28th October 1996 Deputy Judge Geiser handed down his judgment in which he expressed some concern over some of the matters raised in the 2 reports concerning the Mother's behaviour, but decided that they were not so significant for him to upset the status quo at that point in time. He concluded that in view of the ages of the children, the proper care that the Mother had rendered to them over the past years and the lack of supporting evidence from the Father as to his long term children care plan, that interim custody should be granted to the Mother with defined access to the Father as before but expressed that any such access was to be in the absence of the Mother.

9. It was during the course of the interim custody proceedings that the Mother through her solicitors at last returned the Form 4 (Acknowledgment of Service) to Court indicating her consent to the Father's petition for divorce and as a result of that the decree nisi of divorce was granted to the Father on 17th April 1997, with the question of final custody adjourned to Chambers on 11th June 1997 pending an up-dated Social Investigation Report. On 4th June 1997 the up-dated report was submitted into Court. That report was prepared by a second Social Welfare Officer Ms. Leung and revealed that the Mother had in March 1997 removed the son CL from his Shatin Junior School and kept him at home as she was dissatisfied with his school. At the end of her report Ms. Leung reached the same conclusion of her predecessor and recommended that custody of both children should be given to the Father. As this recommendation was again rejected by the Mother, the custody hearing was adjourned on 11th June 1997 for trial in October 1997 with the usual direction for the parties to first file their evidence by way of affirmation. The Father filed his substantive affirmation for custody on 25th September 1997 but up to 28th October 1997, the first day of the scheduled 3 days hearing, the Mother did not file her affirmation. In fact, on the previous day, 27th October 1997, her solicitor Mr. Swainston appeared before me for permission to be discharged from acting for her in the proceedings on the ground that she had failed to put his firm in funds for the hearing. Mr. Swainston however also admitted that his firm, due to an oversight, did not realise that the Father had filed and served his affirmation until only several days ago and hence there could not be sufficient time to prepare the Mother's affirmation. His application was not opposed and so the Mother appeared unrepresented at the hearing on 28th October 1997.

10. At the hearing the Mother confirmed that she still wished to contest the Father's application for custody and expressed her unhappiness that her former solicitor's mistake had caused her unable to file her affirmation for custody for the hearing, and that she wished to apply for legal aid for the proceedings as she said she could not afford to hire any lawyer to represent her. Basically, she was seeking an adjournment of the hearing to enable her to seek legal representation.

11. Counsel for the Father, although concerned about the delay caused by such adjournment, very sensibly accepted that under the circumstances she couldn't really resist the Mother's request but suggested that the Social Welfare Officer Ms. Leung should look into the latest development of the schooling situation of CL. She also wanted to seek an order on behalf of the Father for staying access to the children and wished to discuss details with the Mother. The case was therefore stood down for the parties to discuss that matter.

12. For reason unknown even up to today, the Mother subsequently left the Court on that day without informing anyone and as the Father still wished to apply for staying access, and thinking that the Mother might have some unexpected urgent matter to tend to, I adjourned the Father's application to 30th October 1997 so that the Mother could be told to come back to Court for that matter.

13. On 30th October 1997 the Father appeared with his Counsel as before but the Mother was absent. It turned out that the Mother had on the day before assaulted a stranger on the street and was arrested by the police and later sent to Castle Peak Hospital. The Father then gave evidence as to the Mother's condition as he was contacted by the police to go to the hospital. His evidence was that the Mother would be kept in the hospital for a week for observation during which he was concerned about the children and he sought their interim custody until the Mother's release from the hospital. I therefore adjourned the hearing to 6th November 1997 for a medical report on the Mother's condition and granted the Father interim care and control of the children during the Mother's stay in the hospital.

14. On 6th November 1997 the Father returned to Court to inform me that the Mother was still being kept at the Castle Peak Hospital and would be there for a further 3 weeks. He told me that in the mean time the children had come to live with him and under his care. I decided to adjourn the matter for 3 weeks until 1st December 1997 and allowed the Father to continue to have interim care and control of the children. I also requested the Official Solicitor to consider representing the Mother in view of her condition.

15. On 26th November 1997 the medical report on the Mother was submitted to Court by the Castle Peak Hospital. The report confirmed that the Mother was admitted to hospital by the police on 29th October 1997 after assaulting an elderly woman in Shatin. She was believed to be suffering from Delusional Disorder and had been given oral neuroleptic drug since 1st November 1997. She was discharged from hospital on 22nd November 1997 with follow-up appointment in late December 1997. The report concluded that she was mentally fit to plead.

16. At the returned hearing on 1st December 1997 both parties as well as a Ms. Cheng for the Official Solicitor were present. The Mother who was then still acting in person told me that she had fully recovered and did not want the Official Solicitor to act for her. She wanted her former solicitor Mr. Swainston to represent her and that she would like her children back now that she had recovered. Ms. Cheng for the Official Solicitor agreed that in view of the medical report's finding that the Mother was mentally fit to plead and that as she wanted her own solicitor, it would no longer be necessary for the Official Solicitor to be involved. There was however concern whether the Mother was fit to resume custody of the children so soon after her discharge from the hospital. The hearing was therefore adjourned to 5th December 1997 for the Mother to obtain medical report on her latest condition. I however allowed the discharge of the Official Solicitor from the proceedings.

17. The parties returned to Court on 5th December 1997 when the Mother told me that she was unable to obtain further medical report or opinion from Dr. Liew, her doctor in Castle Peak Hospital as to whether she was fit to take back custody of her 2 children. She was however adamant that she had fully recovered and was mentally capable to resume her parental role over the children. The Father agreed that the Mother's mental capacity was not an issue and was willing to allow the return of the children to their residence at the former matrimonial home under the care of the Mother pending the trial of the custody issue. I therefore discharged the interim custody order and directed that the children be returned to the Mother's interim care pending the trial of the custody issue on a new date commencing on 25th February 1998 with 4 days reserved. I also allowed the Mother further time up to 31st December 1997 to file her affirmation for custody with a warning that she must sort out her legal representation as soon as possible as there should not be any more delay to the hearing. Finally I requested the Social Welfare Department to up-date the report on CL's schooling situation.

18. On 11th February 1998 the up-dated Social Investigation Report was submitted into Court. It revealed that CL, after being removed from Shatin Junior School in March 1997, has been enrolled into Funful English Primary School at Kowloon Tong in September 1997 for Primary 1 and that he has adjusted fairly to the present school life. The Mother, however, did not file her affirmation for custody by 31st December 1997 as required by my order, but instead only on 18th February 1998, just 1 week before the start of the custody hearing. It was prepared by her former solicitors who on the same day filed a notice to act for her in the proceedings.

19. At the hearing on 25th February 1998 both parties were represented by Counsel. At the start Counsel for the Mother Ms. Chow sought an adjournment of the hearing on the grounds that her client would like to seek a psychological report on her mental ability as a parent, citing that the report from Castle Peak Hospital of 25th November 1997 was not useful in that aspect, and that the Mother would like to instruct her previous Counsel who represented her at the interim custody hearing in 1996 before Deputy Judge Geiser, although no reason was given for her wish to change Counsel so suddenly at that stage of the proceedings.

20. Not surprisingly, the Father saw the application suspiciously as a delaying tactic and strenuously opposed it. His Counsel Ms. Yip argued that the Mother's mental capacity was not in issue, that she had had ample opportunity to obtain a psychological report much earlier if she so wished,, that there had already been many delays to the matter through no fault of the Father and that any further delay would simply not be in the children's interests.

21. I agreed that there should be as little delay as possible in reaching decisions on the future of children and that any further adjournment in this case should be avoided, in particularly that I did not think the Mother had been able to demonstrate any justification for adjournment. I therefore refused her application but since she wanted her solicitor Mr. Swainston to take the place of her Counsel Ms. Chow, I reluctantly agreed to give Mr. Swainston time to prepare the Mother's case and adjourned the hearing to the next day.

22. Unfortunately, on the following day the Mother was not in Court and I was informed by Mr. Swainston that she had in fact on the previous afternoon applied for legal aid and hence the proceedings had been automatically stayed for the statutory 42 days. He explained that his client still wished to instruct her previous Counsel in the interim custody hearing but as she had run out of fund, she had no choice but to apply for legal aid. He told me that the Mother was still at the Legal Aid Department for the process of her application and was unable to attend Court on that day.

23. The Father suspected it was another delaying tactic by the Mother and urged me to exercise my discretion to up-lift the stay so that the hearing could proceed without further delay. I agreed that the stay should be up-lifted on the understanding that a quick decision on the Mother's legal aid application could be made shortly by the Legal Aid Department but in view of the lateness of the day and the absence of the Mother, I adjourned the hearing to the following day.

24. On 27th February 1998, the scheduled 3rd day of the 4 days hearing, the Mother still failed to appear in Court and her solicitor Mr. Swainston explained that her application was still being processed by the Legal Aid Department and that if her application was successful, she would want to instruct her previous Counsel who would likely need time to prepare for her case and so he again sought an adjournment to the hearing.

25. The Father as expected objected to the adjournment but by then it was clear to everybody that if the hearing went ahead, it could not possibly conclude within the remaining time of the scheduled hearing, and rather than going part-heard and then having to wait for months to return to Court to continue, I decided to adjourn the hearing to 17th March 1998 after juggling my diary with a stern warning to the Mother that the hearing would definitely go ahead on the fresh dates and that any further application for adjournment would not be entertained. I also awarded costs thrown away as a result of the present adjournment to the Father, which was very wisely not opposed by Mr. Swainston.

26. The hearing at long last commenced as scheduled on 17th March 1998, and although the Mother was unable to obtain legal aid, she was still represented by Mr. Swainston. Both parties as well as Ms. Leung the 2nd Social Welfare Officer gave evidence and were extensively cross-examined. At the conclusion of the evidence on the 6th day, at the request of the parties, the hearing was adjourned to 2nd April 1998 for final submission.

The Father's Case

27. The Father explains that when he decided to live apart from the Mother in December 1991, he believed that it would be in the best interest of the children to continue to reside in the former matrimonial home with their mother so that their normal lives would be least disturbed by their parents' separation. After the separation, he has always visited the children on regular basis at least once a week and has kept in close contact with them at other times by phone, and whenever they were sick or unwell, he would rush over to look after them, or to take them to the doctor, such as the occasion in 1994 when CL was hospitalised for 2 days, he stayed overnight with him at the hospital. He says although he could not physically live with the children, he has always been a responsible father and has maintained a very good relationship with them. He says however the events that happened after his presentation of his petition for divorce in 1994 has convinced him that he was wrong in not seeking custody of his children in the first place. He says through his contact with the children, he has come to realise that their psychological and emotional development will suffer in the long run should their custody remain with the Mother.

28. The Father says at least on 2 occasions in early 1994 that CH was abandoned by the Mother on the street for no apparent reason while they were shopping and had to go home by herself. CH was then only 10 years old and was extremely frightened as a result. There was another occasion in August 1994 when the children were supposed to have lunch with their mother and grandfather at a restaurant but suddenly for no reason CH and grandfather were told by the Mother to go home whilst she and CL stayed on for lunch. On other occasions CH was frightened by her mother for getting angry with her for no reason at all. He says sometimes when CH wanted to stay overnight at his place, Mother would not agree and would have a big argument with CH who would inevitably be forced to go home unhappily. There was also an incident on one cold day in January 1995 when CH was locked out of her home by her mother for playing outside too long and had to take shelter at his place.

29. Father complains that Mother used to make CH practised her piano or singing at home well beyond her school time so much so that she would often be late for school, causing her embarrassment and to miss some of her classes. He also notices that in the past that CL's homework was often not done or incomplete and that he had had to help him out with his homework during his access to him.

30. Father also complains that Mother fails to respect the feelings of the children or understand their need to grow up independently. Although the matrimonial home is quite a big house of more than 2,000 sq.ft. with 3 bedrooms, CH was not allowed to have a room of her own despite her repeated requests and had to share the same bedroom and bed with her mother and CL. He says it was only until last year when CH was almost 14 and after he had raised the issue in one of his affirmations that Mother finally allowed CH to have her own room.

31. Father says that Mother is a vengeful person and that her vindictive mentality has prevented her from properly recognising her children's interests and well-being. He cited the incident in March 1995 when CH was not allowed by her mother to go on a day trip organised by her school to watch her favourite pink dolphin simply because the school did not permit Mother to advertise an Indonesian Tour she was organising in CH's school and it was her way of getting even at them. For the same reason, Father believes, he was not allowed to see the children from time to time whenever he failed to satisfy Mother's requests, such as in late 1994 when he was denied access after having rejected her request for increase in maintenance, which access was later revived only after he eventually acceded to her request. He however continues to have problem as to access throughout the proceedings.

32. The Father's evidence is that despite the access order first granted to his in 1995, which has since twice been confirmed and re-defined by the Court, he has been having a lot of difficulties visiting his children in particularly CL due to the Mother's unreasonable behaviour, interference and obstruction. He has cited many examples of such difficulties in details in particularly in his 4th Affirmation. He says the Mother would always use CL's health as an excuse to deny him access, when in fact the evidence clearly shows that there was absolutely nothing wrong with his health. On other occasions when he was able to have access to the children, the Mother would insist in coming along despite the order of Deputy Judge Geiser of 28th October 1996 which specifically excluded her from any such access, thereby causing him great annoyance and greatly hindered his normal relationship with his children.

33. The Father believes that the Mother was being deliberately difficult because she wanted to take revenge against him for the breakdown of the marriage, as confirmed by the Social Investigation Reports, and that it shows her inability to control her emotion and a total lack of understanding of her children's needs, which he says can be amply demonstrated by her other unusual behaviour and parenting method.

34. The Father says that CL used to do very well at the Shatin Junior School, the same school where CH attended from Primary 4 until her graduation to Shatin College where she is now a Form 4 student. He says however CL's normal schooling at Shatin Junior School had been continuously disrupted and disturbed by his mother due to her unusual behaviour and irrational actions from early 1996 until March 1997 when he was withdrawn by the Mother from the school. The Father relies on various reports from the school principal and CL's class teacher which detailed the Mother's various actions including interrupting classes, persistently bringing CL to school late, calling the police to arrest another student for causing a minor accident to CL, making untrue accusations against the school to the Education Department, interfering with CL's normal activities at school, and causing him so much absence from school that the school principal Mr. Lewis was of the view that the Mother needed professional help as her behaviour was irrational and that if the situation were to continue, CL's education and well-being would suffer.

35. The Father complains that after the Mother withdrew CL from Shatin Junior School, she then kept him idle at home without any proper alternative schooling for him until after the summer when he was enrolled into Funful English Primary School in Kowloon Tong. The Father says before the Funful English School, the Mother had tried to enroll CL into the Hong Kong International School which is at Repulse Bay and so far away from CL's home that it was totally impractical even for her to consider that school in the first place. He says it is typical of the Mother's impulsive and irrational behaviour.

36. As for CL's present school, the Father does not think it is suitable for him as it is a local-stream school which CL has difficulties coping with in particularly as to the Chinese subjects as CL is more fluent in English and has problem especially with written Chinese. Due to the different standard between his former and present school and as a result of his mother's disruption to his school term in March 1997, CL, who was then in Primary 2 at Shatin Junior School but could only start at Primary 1 at Funful English School, has in effect lost valuable time in his formal education.

37. The Father says that it was all along his mutual intention with his former wife to put both their children through English-stream schools in Hong Kong in preparation for their future education in the U.S. where they came from. He says that Shatin Junior School is a good school where both children used to attend and did well. Due to the Mother's irrational behaviour, CL's schooling has now been adversely affected. He says he has nevertheless continued to pay his school fees at Shatin Junior School in order to reserve a place for CL in case that his custody is granted to him, so that CL can go back to his former school which has agreed to take him back without any problem.

38. The Father says that CH's relationship with her mother is both distant and remote. Although they still live under the same roof, he says CH is hardly with her mother save for meals time. CH now prefers to stay in her own room and away from her mother to avoid any conflict with her. He says Mother has given CH little parental care or guidance and he is concerned that CH will have no close adult to turn to for advice when she encounters teenage problems. He says there was an incident in April 1997 when Mother deliberately sent CH away from home in order to give away her 2 beloved dogs in her absence with the excuse that CH had not taken proper care of her dogs, was a cruel and inconsiderate act and has a very traumatic effect on CH's emotion. He says it exemplifies the Mother's lack of understanding of her children's emotional needs and her inability to communicate and discuss matters with them, in particularly with CH.

39. Father says that Mother's relationship with CL does not fare much better, although she favours him more, which might have been responsible for the poor siblings relationship. He says CL has often complained to him about his mother's strange behaviour such as hitting people on the street or pinching and hitting him for no reason which frightened him. He says CL is not happy living with his mother and has on more than one occasion told him that he did not like his mother and that he wished he were dead. He says CL is afraid of his mother and would behave differently, i.e. less talkative or active whenever his mother is around as he is intimidated by her presence. He gives example that when he is talking to CL on the phone, CL would become nervous whenever his mother is near and would cut short the telephone conversation. He would also lie to his mother of what he eats or does during his father's access so as not to anger her. Father believes that Mother has been over-protective of CL by still sharing the same bed with him and spoon feeding him despite his age which has caused him to act babyish, and tends to spoil him by allowing him watching too much television after school when he should be doing his homework or other more healthy or useful activities.

40. Father is convinced that if CH and CL continue to live with their mother, they would be deprived of their much needed parental care and guidance as they would not confide in her of their feelings or tell her their problems as CL is just too intimated by his mother whilst CH has grown to be aloof from her mother, as confirmed by the Social Welfare Officer and supported by many examples such as the facts that she now allows only her father to sign her report card and invited him to her school in last year's Parents Day without even telling her mother.

41. If custody of the children is given to him, the Father says that he would have breakfast with them and take them to school on weekdays before he himself goes to work. Whilst there is a short period of time after school and before dinner that he would still be at work, he has hired a Filipina domestic helper to prepare meals for the children and to generally keep an eye on them before he comes home from work at 6:30 p.m. He says he can easily arrange his clients' appointments to make sure he can go home by 6:30 p.m. and to cut down on his social activities in order to be with his children. He would have dinner with the children every evening and help them with their homework and studies. On his day off on Thursday and Sunday afternoon, he will be able to spend more time with the children. He says in November last year when the Mother was detained in the Castle Peak Hospital and the children were in his interim care for 1 month, he was able to take good and proper care of them and that they were happy and content to be with him during that period. He sees no difficulties in being able to do so for them on a permanent basis.

42. Father proposes that CH should continue her schooling at her present school at Shatin College where she is doing very well and has been described by her school to be an excellent student. As for CL, he believes that he should return to his former school at Shatin Junior School where he has reserved a place for him. He believes it is a more suitable school for CL who he hopes will follow his sister's footstep to go on to Shatin College. He agrees that his present apartment may be too small for them and proposes to move to a bigger apartment in the same neighbourhood with 3 bedrooms so that the children will each have their own room as they are old enough to be more independent. He therefore asks for the children's custody and agrees that the Mother should have reasonable access to them.

The Mother's Case

43. The Mother's case is mainly set out in her 2 Affirmations filed respectively on 24th July 1996 and 18th January 1998. She does not think the Father will have the time to take proper care of the children. She blames him for their separation and the eventual breakdown of their marriage for having too many social activities and spending too much time with his friends rather than with his family during the marriage. She does not think he has changed much in that area and believes that he still has too many social activities after work to spare any time for his children. Furthermore, he has a busy dental practice which may have patients coming in late for appointment or that treatments may overrun in time that she does not think that it is realistic for him to say that he will be home by 6:30 p.m. everyday.

44. The Mother believes the Father's present complaints against her over the children are essentially about CL's illness, his access to CL, the disruption to CL's schooling and her relationship with the children, all of which have now been resolved or are no longer any problem.

45. The Mother admits that CL did spend a lot of time off school whilst attending Shatin Junior School, because, she says, he is a sickly child who has been prone to regular fever and sickness which inevitably led to disruption of his schooling and access by his Father. She says his illness were always genuine and not excuses to deny access to the Father, and that she has always told the Father that he is welcome to visit her home at any time to see the children. She agrees that it is important for the children to see their father regularly and believes that recent access by the Father has progressed smoothly and hence he should have no further complaint about the matter.

46. As to CL's schooling, Mother says she was unhappy with his academic development at Shatin Junior School and the school's failure to monitor his treatment by other pupils. She says CL was constantly being picked upon by older boys at the school that she became very concerned and had made a number of complaints to the school, and at one stage, to the police, about CL's injuries. She now accepts that she may have been a little over-protective of her son, but she stands by her decision to take him out of that school in March 1997 which she believes that at that time it was in his best interests. She says Shatin Junior School did not seem to have a particular plan for each grade of pupils to follow and she was concerned that CL's academic development would suffer as a result.

47. After taking CL out of that school, she says she taught him at home from March to September 1997, during which she did make enquiries as to which school would be best for him, and eventually settled on Funful English Primary School which he started on 2nd September 1997. She says she is now happy with CL's progress at Funful, and although he did have problems adapting at the beginning, he is now far happier than he was at Shatin Junior School. He is no longer being picked on by older boys and there is no more cuts and bruises on him. She admits he is still slow at Chinese and because of illness missed his examination on the Chinese subject in December 1997, but he did sit the rest of the examinations and produced excellent result in his favourite subjects, science and mathematics. She is however concerned that since he has a lot of homework to do, his father's access to him on Thursday has caused him to consistently fail to do his homework on that day. She suggests that CL's homework performance would improve either if he did not have to see his Father on Thursday evening or that his Father should help him on that day to do his homework. The problem, she says, is that Thursday is seen as "night out" with Father and CL is under the impression that it is playtime and finds it hard to concentrate on studies on that day.

48. The Mother denies the Father's claim that she has given the children little parental care or guidance. She says she has cared for them since their birth and will continue to love and care for them. She says her relationship with CH has improved more and more over the past year and that they are much more understanding of each other and are closer than ever before. CH now has her own room and as a growing teenage girl, she of course wants time to herself and is often on the telephone to her friends. CH usually returns home between 6:30 p.m. and 7:00 p.m., and the family will have dinner together until about 8:30 p.m. Afterwards CH will do her own things in her room until around 10:30 p.m. when she retires to bed. Mother is confident that their relationship is stronger than ever before, in spite of the unhappy incident over her dogs.

49. Mother explains that she was happy for CH to have the dogs in the first place, but unfortunately CH later lost interest in cleaning up after them. In the end she had to make the unhappy decision to give the dogs away to a friend who she says has a garden where the dogs would have a much better life. She says she realised that it upset CH at the time but it was in the best interests of the dogs.

50. Mother says she has a very close relationship with CL as she spends a lot of time with him. She says CL now returns home from school at 1:00 p.m. each day, and thereafter she would spend the rest of the day with him until he goes to bed, except for Thursday and Sunday access days. She would also help CL with his homework everyday. To say that CL is frightened or scared of her is ridiculous. As a parental figure, of course she has to gently chastise him from time to time but she has never caused him any physical pain. She says even the Father agrees that CL is a lovable boy and to say he is intimidated by her is complete nonsense.

51. The Mother argues that the first Social Welfare Report of 18th January 1996, the recommendation of which is against her, is now badly out of date, whilst the second report of 4th June 1997 shows positive changes to the children's relationship, whereas the up-dated report of 11th February 1998 deals only with CL's schooling. She says the Father is therefore relying upon reports made long time ago, during which much has occurred and circumstances have changed, and hence it is no longer safe for the Court to rely on the observations or recommendation of those reports. She also does not agree with some of the allegations attributed to her in the reports, such as her behaviour over CL's schooling at Shatin Junior School as described by the school principal, which she explains she was merely doing what she considered best for CL. As to her relationship with CH as stated in the reports, she agrees that at that time it was not always smooth, but it is much better now. Regarding CL's preference for his father, she explains that being the custodial parent, sometimes she has to discipline CL, whereas with the Father it is always of a fun nature during his access time which explains CL's preference for him. She also thinks that CL is too young to express a proper view and that she is certain that both children actually prefer to stay with her. She therefore rejects Ms. Leung's recommendation of her report.

52. Mother points out in fact Ms. Leung's up-dated report of 11th February 1998 actually supports her view that CL has shown improvement with his school work and studies and that he has not exhibited any misconduct or misbehaviour at school. She says it goes to show that she has done a good job with CL's schooling and education. On the other hand, she says, Father has failed to help him with his homework during the month in November 1997 when she was hospitalised, as he has little patience with it since he returns home from work so late each day and is physically tired. She believes that CL, with proper help from her, will continue to improve on his education including his Chinese subjects, whereas with his father, she doesn't think there will be any help from him. As for CH's education, her homework is not too demanding but she does have quite a lot as well as school activities many of which fall on Thursday which is access day. As a result, she says, CH is always tired on that evening and finds the access visits burdensome.

53. The Mother submits that the Father is quite incapable of dealing with the children's health care, as he has demonstrated on many occasions in the past when the children in particularly CL would end up sick or having a cold after access time. She says Father has tried to overcome his inadequacies by employing a Filipina maid, which will simply encourage him to spend more and more time out of his home as he will tend to leave the task of looking after the children to the maid, and that cannot be a good thing for the children. In any event she says CL has recently told her that he does not like the maid.

54. The Mother says she has been the primary carer of the children since their birth. They have now grown up to be bright and lovely children. She points out that even the Social Welfare Reports have not criticized her caring ability or that she has not rendered proper care to them. On the other hand, she says Father can clearly spend only little time with the children if he is granted their custody and that he has no experience in child care since he left the children in 1991 to her sole care when CL was only 1 year old. She worries that although CL's progress at his new school is encouraging, Father has said that he would change his school if he gets his custody, which means another disruption to CL's schooling which is definitely not in his interests. She admits of being over-protective towards the children in the past, especially CL, but it was out of her natural love for him and her desire to look after him and do what is best for him. She does not accept that this can be a valid reason for the transfer of the custody of her 2 children to the Father. She stresses that continuity and a stable environment are important to children. Their status quo, i.e. living with her and under her primary care since December 1991 should not be distributed unless there are good reasons for doing so, and she says there is none in this case. She submits that CL is only 7 years old and it is natural for young child like him to be with his mother, whereas CH is a teenage daughter and it is also natural for her to be with her mother. It is therefore in the best interests of the children to remain in her custody care and control.

55. Ms. Leung the Social Welfare Officer in her report of 4th June 1997 revealed that although CH now has her own bedroom and less conflict with her mother, their relationship did not seem to have much improved. She reported that CH did not feel like taking to her mother and would snap a lot whenever they talked, and that she treated her mother as a person only, whilst CL was afraid of his mother as she would get mad easily and would pinch him without any reason. She said in her report that both children have expressed their wish to live with the Father and concluded with the following remark:-

"Needless to say, the Mother has been providing physical care to the two children in all these years and will continue her caring role if the present situation maintains. Her efforts should be credited. However, it is more than a carer for the children to grow healthy. They need guidance and positive communication from the person whom they stay with. Apparently, the Mother is unable to give guidance nor have positive communication with the two children especially CH. Both of them will turn to the Father to share their inner feelings rather than the Mother.

Should your Honour share the same view, it is recommended that the custody of two children be rested in the Father with reasonable access to the Mother."

56. In her up-dated report of 11th February 1998 specifically on CL's schooling, Ms. Leung revealed that CL still had too many absence from school but the Mother had not presented any medical certificate to the school. She also reported that CL had shown adjustment problem at his new school, failed to hand in some of his homework in particularly Chinese subjects, and did not write his first Chinese subject examination because his mother felt that he was not ready for it. Otherwise CL had behaved at school and mixed well with his classmates.

57. Section 3 (1) of the Guardian of Minors Ordinance, Cap. 13, provides that in relation to the custody or upbringing of a child, or children as in the present case, the Court shall regard the welfare of the children as the first and paramount consideration and in having such regard shall give due consideration to the wishes of the children if, having regard to the age and understanding of the children and to the circumstances of the case, it is practicable to do so, and any material information including any report of the Social Welfare Department.

58. The word "welfare" is to be taken in a wide sense and apart from the matters which the Court shall give consideration to under the general principles referred to above, others such as the children's physical, emotional and educational needs, the likely effect on them if any change in their circumstances, their respective age, sex, background and sibling relationship, any harm they have suffered or are at risk of suffering, how capable each of the parents, and any other person in relation to whom the Court considers the question to be relevant, is of meeting their needs, are some of the relevant matters to which the Court may have regard. With these principles in mind, I shall now consider the evidence.

59. The Social Welfare Officer Ms. Leung was the first witness. She admitted that she has seen the earlier social investigation report and the psychological report before she prepared hers but it was only for background information and insisted that she has not been influenced by them. She did not agree with everything mentioned in the psychological report and readily commented on changes she has observed such as the improved siblings relationship or Mother being in better control of her emotion than in the past. She also gave detailed evidence of her investigation of the matter and her various meetings with the parties and the children. She was firm as to her view and opinion but fair at the same time, such as her admission that there were matters which on hindsight she might have done more, like asking the Mother for her side of the story over her giving away of CH's dogs, etc. Generally I find her to be a frank and truthful witness and has properly given her view and assessment in a professional and unbiased manner.

60. The parties also gave lengthy evidence in Court. Their evidence and the way they were presented are indeed quite revealing of their respective character and personality, as well as their credibility as a witness. I have no difficulty finding the Father to be a sincere and truthful witness. In fact I am quite impressed by the way he gave his evidence which was presented in a sensible and reasonable manner without any hint of overstatement or exaggeration, not even those touching on his former wife's parenting methods or her various behaviour towards the children which he finds so objectionable. In fact he appeared reluctant to say anything bad against her in any of his evidence. When he was describing the incidents of CH being abandoned by her mother on the street, for example, one could feel the genuine emotion of guilt and sadness in his evidence, yet there was not a trace of hate or bitterness towards his former wife, which is indeed rare in highly-charged matrimonial disputes when parties too often would go out of their way to smear, slender and insult each other.

61. Not so with this Father. In fact I feel that he still cares about his former wife and that he has come to Court only as a last resort and out of his desperate concern for his children. I think it would be useful to quote here the observation of the clinical psychologist in her report which I think is still mostly valid today:

"...He (the Father) was polite and cooperative on approach. His speech was organized and clearly expressed. Throughout the interview, it was observed that he was in a rather low mood, especially when he talked about his concerns about his children and his wife. He appeared to be more happy when he talked about the time he spent with his children and those funny things his children did. Throughout the present examination, the Father was open and frank in discussing his problem with he Wife. He neither blamed his Wife or himself for the broken marriage. He tended to use mild words to describe his situations. Though in a low spirit throughout, Mr. C's emotion was stable and his affect was appropriate. No obvious signs suggestive of psychopathology was observed in the present examination.

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Mr. C expressed deep concern about the welfare of his children. He initiated to seek for a second opinion from the examiner on whether he was making good arrangement for his children, though he showed confidence in making a better parent for his kids. During the interview. Mr. C showed, in concrete terms, his sensitivity to his children's needs. For example, he expressed sense of guilt when he mentioned that he had once failed to keep his promise and he noticed that CH was disappointed by that. He was also aware that at CH's age, she might need more freedom, while for CL, more supervision and guidance was necessary. From the interview, Mr. C demonstrated good understanding of his children's emotions and developmental needs."

62. Ms. Yuen, the 1st Social Welfare Officer in her report also found the Father to be a more reasonable and understanding parent to the children, both of whom enjoy the time with him, and that a more nurturing and harmonious father-children relationship was observed. At the hearing the 2nd Officer Ms. Leung confirmed that she shares the psychologist's findings and observation of the Father's character and personality, although she herself did not find him depressed.

63. I am also impressed by the Father's insight and understanding of his children's needs and his ability to nurture and develop an excellent relationship with them over the years despite the fact that when he left the matrimonial home, they were so very much younger with CL merely 1 year old. I do not doubt his evidence that he has always tried to teach the children the importance of family value, to love and respect their parents as well as each other, and that he was always the one to remind or arrange for the children to give well-wishes cards and gifts to their mother during occasions such as Mother's Day, and when the children were upset with their mother, to comfort them and to explain and reason with them of their mother's action or behaviours, and to take his children to visit their mother everyday when she was detained at the Castle Peak Hospital in November 1997. He could have talked badly about their Mother or taken advantage of her predicament last November to help his own case, but he didn't. Clearly he is a loving father who is able to discard any personal feelings he may have against his former wife in order to preserve a mother figure to his children.

64. Again it would be useful to quote the observation of the psychologist Ms. Chan of Father-children relationship in her report as follows:-

"Interaction between the father and the two children was observed in separate session. Both children related naturally with the father. They were keen to catch Father's attention. CL showed he attachment to his father by sitting on his lap and nagged for his attention, while CH initiated frequent conversation with the father. In return, the father was able to pay equal attention to both of them. From the behaviour observed, CL appeared to be able to maintain close relationship with both parents, whereas CH was obviously more attached to the father, she was more expressive and looked much happier when she was staying with father. The father was able to correct children's misbehaviours and to settle the rivalry between the siblings immediately, e.g. When CH yelled at her younger brother or when CL tried to rob her sister's toy. In that session, both CH and CL were able to tidy up the place cooperatively after they had finished the assigned task. CL was observed to have exhibited less dependent and babyish behaviour."

The Father has shown to be liberal and open-minded with his children. He believes that they are old enough to be more independent and has pleaded for CH to have her own room and for CL to have at least his own bed. He treats them fairly with respect but at the same time asserts his parental authority. He thinks CL watches too much TV after school and would make him do his homework after school instead and to go to bed earlier than he does at present if he is granted his custody. Despite having left the matrimonial home years ago and never been their primary carer, the Father has been able to establish an amazingly close relationship with his children, and I don't think it is simply because the children regard him as the fun figure. I think their relationship goes much deeper than that. Both the Social Welfare Officers and the Clinical Psychologist have reported very positive emotions of the children to their Father. This reflects on the Father's very good insight and understanding of his children's emotional needs and development and his genuine care and concern for their welfare.

65. It is however not so simple or straightforward to describe the Mother as a witness or a parent. She has shown to be a very clever witness who was able to answer quickly every question put to her and to always give a reason or explanation for her action. However, she could also be evasive and defensive when she found the questions not to her favour and would change or twist her evidence to suit her case. At other times some of her answers are inherently incredible or incomprehensible. I find her evidence ultimately unreliable and unsatisfactory. There are numerous examples.

66. One of the Father's main complaints against the Mother is her deliberate denial of access to him. Her explanation is always that the children in particularly CL is a sickly child and was ill on those occasions when Father failed to have access to him. However there is no medical evidence to support that allegation and the Mother is unable to state exactly what is wrong with CL's health other than the usual bouts of flu or cold common in small children. Neither the Father nor the Social Welfare Officer finds CL to be a sickly child and I agree with the Father that it is too much of a coincidence for CL to be sick on those occasions when his father was supposed to have access to him. Even if CL were in fact sick on some of those occasions, one would have expected the Mother to invite the Father to visit CL at his home. After all he is his father and the visit could well alleviate his concern for his son, if not to prove that she was not lying about his sickness, in view of his many complains in the past. On the contrary, the evidence is that she would not even allow the Father to talk to CL on the phone on those occasions, let alone to visit him at his home.

67. In fact, despite her statement that she has always welcome the Father to visit the children at her home, the evidence is that the Father was not welcome and there were a few occasions that he could only talk to her or the children at the door with the door-chain on. The Mother says she has a good reason not to allow the Father into her home: she fears that the Father would do or say something to her domestic helper to cause her performance to deteriorate. She says in the past every time after the Father had been to her home, her domestic helper would become lazy or sloppy with her work and would eventually have to be replaced by another helper. She says she is very happy with her present helper and does not want to risk losing her by allowing the Father into her home.

68. I find this explanation incomprehensible. Even putting aside the fact that this allegation was never put to the Father by the Mother's lawyer in cross-examination, the Mother has never given any evidence as to why she thought the Father would do something like this and I just find this allegation absurd. Counsel for the Father has described the Mother as a very smart but evasive, unreliable and pretentious witness and that she would twist and change her evidence to suit her case. I am however not so sure whether this is her way of giving evidence or whether she actually believes in what she says or does without realising the significance thereof. I will have more to say about this later on.

69. Another illuminating example on the access issue is when the Father was unable to have staying access to the children for the New Year Holiday of 1997. He was supposed to collect the children at 7:30 p.m. on 31st December 1996 but on that day and the following day on 1st January 1997, he was unable to see his children. The Mother's explanation is that she had on both occasion pre-booked dinner for the children because they had missed the Christmas dinner due to CL's sickness earlier on. When asked why she did not allow the Father to collect the children after dinner, her explanation was that CL had just recovered from his illness and therefore she did not think it would be in his interests to go over to his father's place. I find this evidence contradictory and inconsistent when she herself had kept CL out late on both evenings until almost midnight.

70. On another incident of the Father's inability to see CL on his access day on 3rd April 1997, the Mother's evidence was that CL went to his doctor for inoculation on the day. When confronted by the doctor's letter that CL in fact had his inoculation on a different day, the Mother immediately changed her evidence to say that CL was sick on that day without further explanation or evidence.

71. The Father's belief that the Mother denied him access to the children because she wanted to take revenge against him for the breakdown of the marriage, and that she should not be trusted when the present access appears to be running smoothly may have some substance in it. The Mother in her evidence has never been shy from attacking the Father as a husband or parent. She has admitted to the Social Welfare Officer that she would take revenge on him for his lack of genuine concern for her or the children. It also appears that every time there was an important Court hearing on custody and access, be it interim or otherwise, the Father would experience no difficulty in seeing his children, yet soon after the matter has been disposed of in Court, he would again run into all sort of difficulties as to access. To wit: soon after the order for interim custody on 28th October 1996, the Father started to have difficulties as to access between late December 1996 until early June 1997, shortly before the final custody hearing was first scheduled on 11th June 1997. Thereafter, when the final custody proceedings were ongoing, the access arrangement appeared to be running smoothly. The Father fears that once the present proceedings are concluded, if custody were to remain with the Mother, his difficulty as to access will re-surface. He is in fact more concerned that this actually shows the Mother's lack of insight and understanding of the children's needs, and the flaws and shortcoming in her personality and character as a parent. On this I find it significant to quote the psychologist's observation of the Mother in her report as follows:-

"...Altogether Ms. T (the Mother) was seen thrice, her presentation varied quite a bit over the three occasions, and also within one interview. She might be friendly and polite at one time, but because agitated and nervous at the other. She might be reasonable and composed in a moment, but might turn mad at very trivial matters. Most of the time during the present examination, Ms. T appeared to be nervous and restless. She usually spoke in a very quick tempo with a trembling voice. She even stuttered when she was too eager to express herself. Though there was no indication that the Mother had difficulty in comprehension, her responses to the questions asked were often far-fetched. She usually focused on what she wanted to say rather than paying attention to what was asked. Yet, the contact with reality was intact. When she was put on psychological test, the client was able to do it promptly and cooperatively.

From Ms. T's presentation, her education background, and the reports from Mr. C and her CH, there should be no doubt of her intellectual competence. Concerning the mother's emotional and mood state, her presentation during the present examination seemed to suggest a swift emotional change even within a short period of time. For example, while discussing the appointment arrangement, Ms. T for extremely agitated and annoyed suddenly when CH showed different views. She restated her stand on the one hand, and started to blame the examiner for causing the family disputes (referred to their longstanding marital and family discord) and her daughter's disobedience on the other. On this point, she appeared to be unreasonable and not very composed. Similar occasions happened at least once throughout the present examination. Ms. T's abrupt mood fluctuation presented seemed to be consistent with the father's and CH's report. According to CH and Mr. C, the mother was totally unpredictable. In CH's word, Ms. T was just like a "bomb" which could explode any time.

With regard to the mother's personality, results of personality test indicated that the client' was trying to create a favorable impression by not being frank in responding to the items obviously indicating psychological maladjustment. Therefore, problems might be undermined or shadowed. Anyhow, the present findings suggested that people with similar personality profile tend to be narcissistic, selfish and self-indulgent. They are quite impulsive and are unable to delay gratification of their impulses. They show poor judgment, often acting without considering the consequences of their acts, and they fail to learn from experience. They are not willing to accept responsibilities for their own behaviour, rationalizing shortcomings and failures and blaming difficulties on other people. They have a low tolerance for frustration, and they often appear to be moody, irritable and caustic. They harbour intense feelings of anger and hostility and these feelings get expressed in occasional emotional outbursts.

These findings appeared to be consistent with the clinical impression gained during the present examination and the information offered by other family members. During the course of examination, Ms. T disregarded commonly known rules, like eating in the office being cautioned, failing to tidy up the place after eating because she "expected there were helpers to clean up her spilt-over". She seemed to take for granted that she would be favourably treated. One of the examples was her request for home visits or night-time appointment on the ground that she did not want CH to skip classes because of the present examination (even though Saturday appointments had been offered and CH had no class on Saturdays).

Other than the emotional impulsivity displayed during the examination process, both the father and CH reported that the mother had past records of hitting strangers in the street, for apparently no reason. CH stated that she had also been punished by Ms. T for reasons she did not know, or for slights that she did not even remember. Similar complaints were made by Mr. C, that he was often accused and punished by Ms. T for trivial things that he was not even sure whether they had happened. Ms. T also admitted that she used to forbid Mr. C to gain access to the children on the ground that Mr. C failed to show up once. Ms. T thus concluded that "the father did not treasure the opportunity of meeting the children and thus warranted a lesson." It appeared that Ms. T was unforgiving of slights and often tried to take revenge on other's "misbehaviour".

Reports from CH, Mr. C, and Ms. T herself suggested that Ms. T tended to take benign messages or events to be demeaning or threatening. For example, disputes between the couple was often interpreted by Ms. T as Mr. C's deliberate effort to provoke her. CH's request for further clarification by Ms. T during revision was often read by Ms. T as a deliberate challenge to her authority.

With regard to Ms. T's child management, there was no evidence that the children's physical care had been neglected. According to her and the other family members, Ms. T concerned most about the physical health of her children. However, the emotional and developmental needs of the children were usually unattended. For example, the mother did not seem to realize CH's needs for independence. As a teenager of twelve, CH was still not allowed to have her own bed. In CH's perception, she always found her mother controlling and her ideas were often discouraged. According to CH, mother always made her felt that she was stupid.

Information gathered during the interviews suggested that Ms. T might not always place the children's best interest first. During the interview, Ms. T was so preoccupied with her marital disputes that she often failed to respond to questions regarding her children, but kept condemning Mr. C. She did not pay attention to the topic regarding the children's welfare and the impact of their marital discord on the children was undermined. As previously mentioned, Ms. T might forbid the children to meet their father, when she felt "he had done something wrong". In these circumstances, the subjective wish of the children was not respected. All these examples, consistent with the findings in personality tests, seemed to suggest that Ms. T tended to be self-centred which hindered her from understanding the psychological and emotional needs of her children."

Concerning parent-child interaction, it was observed during the session that Ms. T paid remarkably more attention to CL. Interaction between Mother and CL was much more frequent than that between Mother and CH. Most of the time, Cherl was left out and had to work alone. During the session, Ms. T was more like an observer and a commentator, although they were asked to complete a task together. No joint effort was observed to complete the assigned task for the family. Even when they were reminded to clean up the mess after finishing the task, CH was the only one who had tidied up her part. CL did not take part in the cleaning up work but looked up to his mother for assistance. Ms. T did not seem to see the need to help the children to understand their own responsibility. In responding to my request, she said that "there should be amahs to tidy up the place."

72. Ms. Chan who prepared the report was not called to attend this hearing for cross-examination by the Mother, nor has the Mother in any of her affirmations commented or responded to the various negative statements made against her in the report, other than the implication that the report is now 2 years old and may be out of date. Some of Ms. Chan's observation of the Mother were shared by Ms. Yuen, the 1st Social Welfare Officer who reported, for example, that CH considered Mother as a domineering and controlling parent who was unpredictable in her emotions and temper, that sometimes she would take revenge and refused the Father access to the children, and that CH's relationship with her was aloof and unhappy. Ms. Leung, the present Social Officer also agrees generally with the psychologist's observation of the Mother, other than the fact that she finds her to be in better control of her emotion during their meetings.

73. In her latest affirmation the Mother admitted that her relationship with CH was not always smooth and there were some problems in the past, although she has never elaborated what those problems were. She just brushed off the report by saying that it is now out of date and that her relationship with CH is now much better, without explaining why that is the case or what she has done to bring about the improvement. However a few weeks later at the hearing she changed her evidence by denying there was ever anything wrong in her relationship with CH which she said has always been close and smooth. This is clearly inconsistent and contradictory and does add weight to the Father's contention that she changes her evidence whenever it suits her case and that her evidence on this should not be believed.

74. Although both the 1st Social Investigation Report and the Psychological Report are now 2 years old, I have no reason to doubt their observation of the then poor mother-daughter relationship, and although there is now less conflict between them, it is because CH now stays in her own room most of the time away from her mother. In fact Ms. Leung's report of June 1997 shows that parent-child relationship did not seem to have improved and that her recent visit at their home shortly before the hearing when CH locked herself inside her room refusing to come out confirms that she still appears aloof and distant to her mother.

75. It was submitted on behalf of the Mother that CH's relationship with her is no more different from other teenagers nowadays who typically prefer to be with their peers than their parents with the same parent-child communication problems as in other families. It is said that there is nothing problematic to this kind of situation and CH, like other teenagers, will eventually grow out of it when she becomes more mature and that her relationship with her mother will further improve. I, however, do not think the matter is as simple as that. CH has been found by both Ms. Leung and Ms. Yuen (albeit 2 years ago in the latter's case) to be generally warm, amiable and friendly to everybody except when she is with her mother, whilst her school teacher has also described her a lovely and sociable student who has done very well at school. I do not think there is any dispute that she is a good and well-behaved daughter, but the difference between her relationship with her father and her mother cannot be more striking that I believe the problem is much deeper.

76. The Mother has throughout the proceedings and hearing emphasized that everything she has done to and for her children is in their best interests. But does she really know what is in their best interests? Take for example the incident of CH's dogs. Even accepting that the Mother might have good reason to remove CH's dogs if her version was true, the way she did it is both harsh and insensitive and that she should have properly discussed the matters with CH to make her understand and accept her decision. It is never easy but it is part of teaching and disciplining children. Her denial of the Father access to the children and keeping them in the same bedroom and bed with her are other examples of her lack of understanding of her children's needs. The most worrying aspect, however, is her action over CL's schooling at the Shatin Junior School.

77. CL started Primary 1 in September 1995. Beginning in early 1996 there were a series of incidents involving the Mother which had seriously affected CL's schooling there. To really understand the extent and impact of the Mother's action, it is useful to quote here a letter from the school principal Mr. Lewis to the Father on 11th April 1997:-

"

Dear Dr. C,

As requested, here are some notes relating to a series of incidents involving your wife this academic year.

		Ref letter/note
1.	History of unusual behaviour worsening to irrational actions on occasions.
2.	Often interrupting classes to talk to class teacher. Not listening to answers. Giving sweets openly to some children in the class thus upsetting others.	26/3/96
3.	Continually bringing child late to school.	26/3/96
4.	Claim that CL was running around too much resulting in fever - doctor's note.	20/11/96
5.	Frequent absences.	29/1/97
6.	CL's knee injury, police called by Mrs. C to arrest other boy! (see extensive notes in file).	11/2/97
7.	Mrs. C called District Education Officer, Mrs. J. Ling with accusations and lies. Mrs. Ling visited the school and found everything OK.	12/2/97
8.	Frequent calls about minor accidents to CL	24/2/97 & 5/3/97
9.	Mrs. C told that her help on P2 visit not required as I have concerns about her ability to look after a group of children.
10.	Mrs. C returned to ask whether she could stay in school to supervise CL. I refused and explained why. I also pointed out that, as she brings him late, takes him home for lunch and picks him up early at the end of school, he only has 15 minutes maximum per day in the playground anyway.	6/3/97
11.	CL reported to me that he had been hit in the playground - the first time he has done this. Situation sorted out.	6/3/97
12.	Mrs. C came twice to see me about the incident. She also asked again about the P2 trip. She claimed that neighbours were victimising her. I offered to find counselling help for her - she refused.	6/3/97
13.	Continuing frequent absences and late arrivals - letter sent.	10/3/97
14.	Sent letter confirming my comments made earlier to Mrs. C.
15.	Three phone calls from Mrs. C asking why I wouldn't let her help with P2 trip.	13/3/97
16.	CL has not attended school since 10/3/97.

(The letters/notes referred to are kept in CL's personal file).

In my view Mrs. C needs professional help. Her behaviour can be irrational. There is no doubt in my mind that her son's education and his well-being will suffer if the present situation continues. His frequent absences and late arrivals at school greatly increases the risk of missing vital parts of his schooling and his mother's over protective attitude could result in poor social development."

78. The Mother does not dispute her involvement in those incidents but claims to have her reasons or explanations for her actions. Some of those explanations are indeed bizarre to say the least. For example, her reason for persistently bringing CL to school late is that she wanted to avoid the rush of other students using the deep stairs to the school in order to protect her son. When it was put to her that she could have avoided them by taking CL to school earlier, she replied that other parents would gang up against her by changing their time as well and that she did not think that being late by a few minutes for school each day should affect CL.

79. Her handling of CL's knee injury sustained at school is equally bizarre and indeed overblown. Despite being assured by the school that it was just an accident, as confirmed by CL, she chose to ignore the fact that children do have accidents and sometimes even fighting at school when they play, and instead reported the matter to the police with the intention to arrest CL's fellow student, and complained to the Education Department against the school over the incident. A responsible and sensible parent would have taught her child how to take care of himself at school to avoid being bullied by others, if that is the case, and to play carefully and safely to avoid accidents or injuries. By taking these drastic actions and by staying at school herself to be with CL at all time in order to protect him is, as pointed out by the school principal, totally undesirable as it would prevent CL from playing and mixing naturally with other children which is an important part of growing up. In fact, her over-protectiveness and favoritism towards CL may very well be the main reason for the past poor relationship between CH and CL.

80. The Mother's behaviour also tends to support the Father's contention that she is full of strange and eccentric ideas, difficult to reason with and that she believes those who do not agree with her must be wrong and must be acting against her. Her suggestion that the school should put an adult at the each corner of the school playground to protect smaller children from the bigger boys is both impractical and unreasonable. Her accusation that the school has become defensive of CL's incident and as a result the principal and teachers have all ganged up against her is equally absurd and incredible. Her persistently bringing CL to school late and making him not to write his Chinese examination because she did not think he was ready confirm the psychologist report that she takes matters in her own hands and disregards rules and regulations. Her removal of CL from his school in the middle of the school term without any suitable alternative arrangement just because she thought the school has not provided sufficient supervision after even police investigation revealed nothing unusual, is impulsive, unreasonable and irresponsible.

81. All the evidence before me shows that CL's injury was both minor and the result of an accident. There is no evidence that he has been bullied or that the school had acted wrongly or was in anyway inadequate in safeguarding or supervising its students. On the contrary, CH did very well in the same school and that both parents were happy to let her graduated from this school before going on to the affiliated Shatin College. I just cannot find any valid reason for the Mother to remove CL from this school in the middle of a school term. Had CL stayed with Shatin Junior School, he would have been in Primary 3 now instead of Primary 1 at Funful English School. This is the result of his mother's irresponsible action and cannot be said to be in CL's best interests.

82. The Mother has never in her evidence admitted that there is anything wrong with her behaviour or action. The closest she has come to that is when her Counsel submitted on her behalf that her taking of slimming pills in the past 5 years up to her admission to Castle Peak Hospital in November 1997 may have caused her to exhibit psychotic symptoms as referred to the Castle Peak Hospital report. Since she has now stopped taking those pills and is in fact on follow-up medication, and that since her condition has not prevented her from providing proper care for the children who are reported to be happy, bright and sociable, it is submitted on her behalf that there is therefore no longer any reason to worry about her behaviour. On this, it is relevant to refer to part of the Castle Peak Hospital's report as follows:-

"Madam T is new to Mental Health Service and she believed that she was being persecuted by a powerful and influential person/organization which allegedly started after her husband's opening of his dental clinic in February 1980. She claimed that there were policemen who inspected the clinic repeatedly and was involved in conflict with the policemen. When she opened her own knitting shop, she had conflicts with a neighbouring shop-owner and Madam T was initially charged for criminal damage but was found innocent at a court hearing.

Since then, she had numerous peculiar encounters during which strangers allegedly collided with her deliberately. She believed that these people were jealous of her looks and wealth. She had reported to the police repeatedly to seek redress. Madam T's elder sister (Camilla T) had personally witnessed Madam T deliberately injuring others by forcefully pushing a pram (with her son in it) against others on several occasions from 1993 to 1995.

Madam T has been on Duromine (slimming pill) for the last 5 years which has been prescribed by her G.P. This has reported adverse effect of inducing psychotic symptoms but her abnormal behaviour had already started before taking Duromine.

She was admitted to Castle Peak Hospital on 29 October 1997 after assaulting an elderly lady at a bank in Shatin and was brought to hospital by the police. The impression is that of Delusional Disorder and she has been given oral neuroleptic drug since 1 November 1997 to curb her aggressive behaviour. She remained settled and cooperative during the hospital stay and was compliant with medication. She has been discharged from Castle Peak Hospital on 22 November 1997 and is arranged for follow up at Li Ka Shing Psychiatric Clinic on 28 December 1997.

She is mentally fit to plead."

83. It is unfortunate that the report is not more detailed as to the history and cause of the Mother's condition, but it appears that her condition is more complicated than simply the effect of slimming pills, as the information obtained by the hospital reveals that her abnormal behaviour had started before the slimming pills way back to 1980 when the Father opened his dental clinic. Here the Mother's evidence is that some policemen and other strangers were trying to harm her leading to a dispute with a neighbour shop-owner that ended in Court. Since then, she had had various encounters with strangers whom she believed were against her for some strange reasons. Furthermore, although she has since the November 1997 incident been on medication, it is just to curb her aggressive behaviour, and the Father's case is that it is her strange behaviour coupled with her character and personality as a parent and her parenting methods which are in issue.

84. There is no question that the Mother has been the primary carer of the children and has so far been able to provide adequate physical care for them. Both the Father and the Social Welfare Officer agree to this. It is her ability to understand the children's emotional needs and development that is the big issue. Despite the Father's complaints and the various criticisms made by the 1st Social Welfare Officer and Clinical Psychologist against her and her parenting method more than 2 years ago and throughout the proceedings, the Mother does not appear to be able to recognise the problems and has so far not taken any active steps to rectify the situation other than allowing CH her own bedroom. The Father believes that the apparent calm situation is due to the present proceedings and that the Mother knows she has to co-operate and behave in the interest of her own case. It is only a temporary retreat, the Father believes. Situation has not and will not improve. It may very well for the Mother to say her relationship with CH has improved, but it is certainly not healthy or normal for CH to stay in her room all day away from her mother. Although there is less conflict between them, CH is now at an age which requires more parental guidance on matters such as seeking advice and making choices in schooling, socialising and other situations typical to teenagers. At the present moment CH does not communicate with her mother. According to the Social Welfare Officer, she just treats her mother as a person.

85. The Social Welfare Officer Ms. Leung has in her evidence stressed the importance for children to grow up in a happy environment, and I can't agree more with her. Not just the happiness that children normally associate with fun and games, but more importantly the kind of happiness when a child knows that he is unreservedly loved and protected by his parents, that he can always count on them for advice and support on any problem, that there will be praise and encouragement from them for doing the right things, the kind of happiness that inspires confidence, well-being and sense of security that loving parents naturally bring to a child in his growth and development. This is sadly not what CH or CL are getting from their mother. Instead there have been anxiety, uncertainty, misunderstanding and insecurity.

86. Something is very wrong when a child like CH has to stay away from her mother in order to avoid any conflict with her, or when a child like CL was still being spoon-fed when he was 6 1/2 years old, or has his name suddenly changed to that of "Tiger CL", as revealed by the Mother in her evidence, simply because she thought it might deter any bully at school, and that she says it was done on the advice of the police!

87. Whilst I am no expert in names and I do not pretend to tell parents what names to give to their children, and that there must be all sort of reasons for naming one's own child in a particular way, the circumstances in which this Mother changed her son's name to this particular name without consulting his Father and apparently without realising its impact and consequences is indeed bizarre, insensitive and inappropriate.

88. If CH and CL are to remain in the Mother's custody, I agree with the Father that things are not going to improve and never will because I do not think the Mother is able to change without professional help. I agree that normally daughters and small children may be better with their mothers, but in this case, I fear that CH and her mother will eventually become total strangers to each other, whilst CL would have difficulty in his emotional and social development as a result of his mother's over-protectiveness and lack of proper guidance. I am sad to say that this Mother, despite her good education background, intelligence and experience in child care, is simply incapable of really understanding her children's needs and despite her repeated insistence, she just does not know what is best for them.

89. I am however convinced that the Father is a much more superior parent and can do a much better job than the Mother, in particularly as to the children's emotional needs and development. Although he obviously has a busy practice and is in a disadvantage as to time available for the children compared with the Mother, I believe he will be able to work his schedule around his children in order to provide them with good and loving care and guidance, and knowing the kind of parent he is, I am confident that he will be able to do what is best for his children and to give them the kind of happiness that the Social Welfare Officer Ms. Leung has stressed about, which has been sadly missing in their life so far but which they really need and deserve.

90. If custody of the children goes to the Father, I do not think there will be any adjustment problem. They have an excellent relationship and had lived together for a month in November last year without any problem. After all, they are not problem children who require constant adult supervision or discipline. They are good children who require more understanding, patience and proper parental guidance and they will get them in abundance from their father. Both have indicated clearly their strong preference for their father, expressly and by their behaviour towards him, and although CL is only 7 years old, I think he has a good understanding of the situation and his preference is genuine. I also agree with Ms. Leung that he will have no adjustment problem returning to Shatin Junior School where he had done well in the past and is welcome in future. I think given his background he is more suited to the system in Shatin Junior School and I have no doubt he will do well there.

Having considered all the facts and evidence as well as all those matters required of me by statutes, I agree with the recommendation of the Social Welfare Officer Ms. Leung that it would be in the best interests of the children for their custody care and control to be given to the Father. This has been a most difficult decision, one that has caused me a great deal of concern and anxiety, as it will mean removing the children from the parent with whom they have lived almost exclusively the past 7 years, and in the case of CL, practically his entire life, and no doubt one which the Mother will be greatly disappointed with. But the question for me to ask in custody dispute is not what the essential justice of the case requires but what the best interests of the children require, and I have absolutely no doubt that the best interests of these 2 children require that their custody care and control be placed with their father. I only hope that the Mother will in time accept that this arrangement will in the long run truly benefit her children and that she herself will consider seeking professional help for her own problem, so that in future, with proper arrangement, she will be able to play an important role in the growth and development of her children and that her relationship with CH will indeed improve. She should of course in the mean time have reasonable access including perhaps some form of visiting access during weekdays whilst the Father is at work just to help CL with his homework, and on weekends and major school holidays. On this I prefer to leave it to the good sense of those representing the parties, failing which I will hear them if necessary. As to costs, in view of the nature of the application and the financial situation of the parties, I believe the appropriate order would be for each party to bear his/her own costs. My order is therefore as follows:-

1. Custody care and control of the children is granted to the Petitioner Father with reasonable access to the Respondent Mother;

2. No order as to costs of the application. This is an order nisi to be made absolute at the expiration of 14 days.