YY v. LXZ

FCMC 11771 / 2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 11771 OF 2010

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RULING
(Access)

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Introduction

1. This matter first came back before me because of the Respondent’s mothers summons dated the 22 June 2012 to renew the children’s US passports. On the 7 August 2012 the Petitioner father issued a further summons seeking inter alia an order that the children’s names be changed back to their original names and seeking further direction in relation to access.

2. What quickly became clear however is that at its heart this is a problem concerning the father’s relationship with his children. By virtue of a court order dated the 26 November 2010 the father has joint custody of the children, with care and control to the mother and generous access to him including access on alternate weekends, during the week and over the school holidays.

3. In reality however the father has not seen the eldest child, I, a girl who is now 12 ½ years old since August 2010. This was before the consent summons of the 26 November 2010 was entered into. He has not seen N since later in the same year. N, a boy, is now 11 years old.

4. The father blames this impasse on the mother and says that she has consistently taken steps to thwart access. The mother for her part takes a very passive approach and says simply that there is nothing that she can do if the children do not want to see their father.  

The mother’s proposals   

5. The mother makes no proposals.

The father’s proposals

6. The father says, quite rightly it seems to me, that he is damned if he does anything and damned if he doesn’t. In so far as the passports are concerned he has suggested as a compromise that he make enquiries to see whether or not it is possible for both of the children’s names to be included on their passports and other official documentation.

7. In so far as access is concerned, after hearing from both the clinical psychologist and the social welfare officer, the father initially asked for supervised access. On reflection however he has agreed to take a step back, as suggested by Dr P.  He requested the children’s e-mail addresses which were supplied to him by the mother in court.

The law in Hong Kong

8. The general principles governing applications relating to children’s issues are set out in s.3 of the Guardianship of Minors Ordinance, Cap. 13, which states that the court:

(i)  shall regard the best interests of the minor as the first and paramount consideration…

9. For the avoidance of doubt in so far as access is concerned, this is generally said to be the right of the child, as opposed to the right of the parent. In other words the child has the right to see and to have a relationship with both of his or her parents. The court is primarily concerned with the best interests of the child and not the relative rights of each of the adults with respect to him or her. 

Discussion

10. Situations like this are amongst the hardest that come before the Family Court. They can be extremely difficult to resolve.

11. It almost goes without saying that in the vast majority of cases, it is in a child’s best interest to have an ongoing relationship with both of his or her parent’s post divorce. This normally requires input from both sides. It is not in my experience, sufficient, especially in a high conflict situation, for a parent to simply take a passive role. It requires the parent with whom the child is living to actively encourage and arrange access. Just as a child is required to go to school and to visit the dentist, likewise they are required to see the non caretaking parent.

12. But it is also true that children are increasingly aware of their own “rights” as individuals, especially as they enter their teenage years. I also accept that situations like this can often be complex – especially if the children have been witness to a lot of the raw emotion that is sometimes associated with marital breakdown.

13. The present case is also complicated by the behaviour of N. From reading the clinical psychologists report it appears that he can be extremely badly behaved. During the session with Dr P he was rude, non compliant, he broke things and generally he behaved in a completely inappropriate manner. Not surprisingly, given that perhaps, the elder daughter seems to have wanted to have no contact with him at the clinical psychologist’s office. It has been suggested that he should receive a full psychological assessment in order to rule out the possibility of any mental health issues. I tend to agree although I am also aware that the children have seen a number of professionals of late. This type of behaviour was also witnessed by the therapist.   

14. Interestingly the mother said that she believes that N’s behaviour has improved of late.

15. As a result of this rather alarming report the mother was persuaded that the children should have some therapy. This was spectacularly unsuccessful.

16. Given all of this, it is hard to see how the situation can be improved unless the parties are willing to enter into some sort of therapy honestly and with a view to improving the present impasse. The children also need to be involved in this.  

Clinical psychologist’s report 

17. In her recommendations the clinical psychologist said as follows:

7.1   The children have reached teenage, a time that they begin to form their own views. Any pressure for visitation from outside parties would only result in more rebellion and resistance from them.  However, the children are noted to listen to their mother and to follow her instruction.  I think if the mother is able to let go of her grievances toward the father and provide genuine support to the father’s access, there may be a chance that the children would listen.  I would like the mother to note that access is regarded as the right and privilege of the children, so that they can continue to obtain care and love from the other parent despite parental divorce.  For the children’s psychological well being, she should also avoid involving them in her disputes with ex-spouse.

7.2   If chance arises, the father should directly talk to the children about the reasons of his leaving home.  He cannot avoid talking about his extra-marital relationship to which the children firmly believe is the major reason for the divorce.

7.3   Given N’s behavioural symptom, he may warrant an evaluation by a child psychiatrist order to rule out any developmental disorder.

Therapist’s report

18. The therapist made the following recommendations:

33.   It would be beneficial for I and N to receive therapeutic services on personal growth and development.  It is also important to address and resolve any negative emotions towards the parents’ divorce and to handle their resistance towards the father, Mr. Y.  Clear “rules” and “consequences” in attending the therapy sessions should lay out with children before it starts.

34.   When both children are psychologically and emotionally ready, the children are encourage to receive therapeutic service to rebuild the father-child relationship.

35.   Parental counselling courses/therapy will assist the family to develop an effective co-parenting plan.  Spending more quality time and having parent-child activities will benefit the tense sibling relationship and the conflicts within the family.  Moreover, parenting techniques can be taught to assist Ms. Z to handle their rebellion and resistance in the teenage years.

36.   When Mr. Y is financially stable, Mr. Y should continue to pay the maintenance for the family to share the cost of the children’s expense.

37.   Both children should explore outside extracurricular activities (such as sports or artistic/academic interests) that he and she enjoys and that allow him and her to develop a sense of self-esteem and achievement outside of the classroom. For example, N might attend rugby or soccer during the summer; and I might benefit from an outdoor adventure program designed to increase self-confidence and independence.

38.   Shared experiences between the children and the parents can provide an opportunity for modelling and coaching.  The parents might encourage N to observe other teenagers interacting with others so that he can see firsthand how to negotiate a social encounter.

39.   Careful monitoring and judicious advice from parents are essential for N.  The advice could be given immediately after the social contact in a way that does not cause further humiliation or intense self-consciousness.  The day’s events could be reviewed regularly and “autopsied” in a calm and non-accusatory manner.  When doing this, N should be encouraged to self-evaluate or review social interactions at school/home.  When interactions are successful, he should praise himself and decide which social skills he used successfully.  If unsuccessful, he should be encouraged to consider what he may have done differently.

40.   All positive interactions should be pointed out and praised immediately as a foundation for building communication skills.  Communication skills should be explained in a manner that is explicit and concrete.  If possible, communication “rules” can be illustrated or written down in order to make them more comprehensible.

41.   At school, N’s teachers should use a simple, convenient behavior management plan that rewards positive behaviours and is consistent with the plan implemented at home.  The emphasis within the plan should be on positive reinforcement.  Any plan should be designed with N’s input.  On the other hand, he should get consequences if he does have negative behaviors.

42.   Further assessment with thorough instruments, such as the Social and Communication Development Questionnaire, the Beck Youth Inventories for children and adolescents – Second Edition, and the Resiliency Scales for children and adolescents, is recommended for a more detail, accurate, and reliable results.

Conclusion

19. I agree with all that the clinical psychologist and therapist have said. I would strongly urge the parties to put these proposals into action. I am also aware that there are some outstanding financial issues that also need to be resolved. This should also be done sooner rather than later.

20. In conclusion then given that the father already has an order for generous access I do not intend to make any further orders in that respect for the time being.  

21. There shall be an updated Social Investigation Report in 15 months time to see the extent to which both sides have complied with the recommendations made and to see the effect that this has had on the children’s arrangements.

22. There shall be no order as to costs.