NAZIYA ASLAM v. RAFAQAT ALI

CACV 144/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 144 OF 2003

(ON APPEAL FROM HCMP NO. 4518 OF 2002)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1. This is an appeal from the judgment of Deputy High Court Judge Gill given on 8 April 2003. The judge was dealing with an application in wardship proceedings. The plaintiff, the mother of the three children concerned, sought an order for custody, care and control of the children born of her marriage with the defendant. The mother not only sought custody of the children but she also applied for leave to remove the children permanently from Hong Kong and for financial relief. There was no dispute that, whatever the result of the proceedings, the three children should be "dewarded". The judge awarded custody of the 3 children to the defendant, the father, and dismissed the plaintiff's application for leave to remove the children from Hong Kong.

2. At the conclusion of the hearing of this appeal this court made an order granting the sole custody, care and control of the 3 children to the plaintiff with reasonable access to the defendant and granted the plaintiff leave to remove the children permanently from Hong Kong. The questions of financial provision and further orders were left to be dealt with in the divorce proceedings which had been commenced after the hearing in the court below. We now give our reasons in writing.

Background

3. The father was born in Pakistan in September 1971; at the time of the hearing he was 31. He is the fourth child of 10 children in the family. His family moved to Hong Kong in the 1970's. The father went to school in Hong Kong but left school after form 3. Apparently unlike many members of his family, he is fluent in Cantonese, nevertheless, he can neither read nor write Chinese. His English is limited. He has had various jobs since leaving school. In 1994 he set up business together with two of his brothers operating a vegetable shop which he still runs. His working hours are long. According to the social welfare report he goes to work at about 8 am or 9 am and returns home at about 8 pm or 9 pm. He has half a day off on a Sunday afternoon, from about 3 pm or 4 pm. As the judge recorded, the plaintiff's income is approximately $15,000 per month.

4. The plaintiff's parents also come from Pakistan. After their marriage in 1960, they moved to England. The plaintiff was born in October 1972. She grew up and went to school in England and she is competent in English. She completed her GCSE and has also completed a two-year course in Business Administration. In the late 1970's her father purchased a house in Stratford, East London and that is now the family home. The house is a three-bedroom house, of which the plaintiff's father owns the freehold with, apparently, no mortgage. The plaintiff has two sisters and a brother. One of the sisters is married and does not live in the family home; the other sister and brother do live there.

5. The plaintiff and the defendant were married in Pakistan in 1994. It was an arranged marriage. The evidence is that arranged marriages are normal as regards the parties particularly in the defendant's family. After their marriage, the parties came to Hong Kong and they lived in public housing together with other members of the defendant's family. There are 3 children born to the parties. The eldest child is a daughter, Sumayyah, who was born in October 1995. There are two sons, Osama who was born in April 1998 and Hamzah who was born in March 1999. Sumayyah was born in London when the plaintiff was there on a visit to her parents. The two boys were born in Hong Kong.

6. In January 2001 the plaintiff suffered appendicitis. Although she was not in hospital for a long time, she appears to have had a certain amount of medical attention thereafter. In February 2001 the defendant's mother returned to Pakistan and shortly thereafter the two boys were taken to Pakistan to stay with her by one of the defendant's brothers. The plaintiff said that she had not agreed to that and was only told of their departure very shortly before the boys left. The judge did not accept her evidence in that respect. He considered that the plaintiff had been ill for some time and that she would have consented to being relieved of looking after two of the three children. However, whilst saying that he considered that the mother had been a willing party to the decision to send the boys to Pakistan, he also said that the arrangement may have persisted longer than the plaintiff had anticipated. A year later the plaintiff left Hong Kong with Sumayyah and went to Pakistan to stay with the boys.

7. It would seem that it was whilst the plaintiff was in Pakistan that the marriage broke down. The plaintiff wished to take the children to London to visit her relatives but that was opposed by the defendant's family. Whatever happened at that time, it is clear that the defendant left Pakistan and went to London in June 2002 without warning anybody. She left with her father who was in Pakistan with her at that time. The judge commented adversely on the mother's sudden departure. The plaintiff said that there had been heated discussions in the course of which the defendant and his father had become physically aggressive towards her family. She said that she left Pakistan in order to avoid the confrontation and acrimony. The judge did not say that he disbelieved the defendant about the acrimony but he did say that the plaintiff had put her decision to separate from the defendant ahead of her wish to remain the children's primary carer.

8. At about the same time the defendant returned to Hong Kong with the boys. Sumayyah followed in late July. 2 sisters of the defendant also returned to Hong Kong from Pakistan at about that time: Waseem, who is now aged about 201/2 and Nazir, who is now aged about 19. They were both born in Hong Kong but studied up to seventh grade in Pakistan. They speak Punjabi and only understand a little Cantonese and English. In late August 2002, the defendant together with the 3 children and his 2 younger sisters, Waseem and Nazir, moved into public housing in Kwun Tong. That is a self-contained flat of about 36.33 square metres with two partitioned rooms. The 6 of them have remained there. The defendant and Osama share a double bed in one of the bedrooms and in the other bedroom Waseem shares an upper bunk bed with Sumayyah and Nazir shares the lower bunk bed with Hamzah.

9. The plaintiff said that when she was in London she did not know the defendant's address in Hong Kong. She considered that the defendant, influenced by his father, was hiding from her. What is clear is that she was put in touch with an organisation called Reunite International Child Abduction Centre, to which she had been referred by the Home Office in London. That organisation put her in touch with solicitors who are now representing her. The judge considered that enlisting the help of Reunite was an unnecessary exercise apparently because he thought the plaintiff would have known where to find the defendant and the children but he was unable to ascribe any reason for the plaintiff so doing. Nevertheless, having been put in touch with solicitors the plaintiff came to Hong Kong and these proceedings were commenced. During the time the plaintiff has been in Hong Kong she has lived in a Salvation Army hostel and afterwards in what can only be described as very inferior accommodation in Temple Street. No doubt, given the plaintiff's current resources and the necessity to find accommodation in straitened circumstances, that is the best that she could afford.

The judgment in the court below

10. As was clearly necessary, the decision in the court below had to be based upon the premise that if the plaintiff were successful the children would go to live with her in England and if the plaintiff were unsuccessful the children would remain in Hong Kong with the defendant. In all likelihood the plaintiff and the defendant would seldom see the children if they were not living with them. In addition, it was recognised that it would be undesirable for siblings to be separated. Indeed, neither party wished that to happen.

11. The judge considered that the plans put forward by both parties were well-structured. He considered that in respect of the defendant's plan, it was in place. He said that the children lived with the defendant in a safe and secure environment. They were well loved and cared for. The judge went on to say that Sumayyah was struggling with her studies but that the 2 boys were doing better in a less demanding class.

12. As regards the plaintiff's plan, the judge considered that that was also sound. The plaintiff proposed to take the children back to live with her in her father's house. The house in Stratford was large and comfortable and there was to be an extension on the roof to provide 2 further rooms. There was a school ready to receive the children. Importantly, the plaintiff was well-qualified in English. She could help the children both to adjust to the new environment and to assist them in their studies. The judge went on to say that he considered that it was an unknown quantity as to how the children would adapt to the way of life in England.

13. Whilst acknowledging that the mother is the preferred primary carer of very young children, the judge considered that the children were no longer in the category of very young. As regards the wishes of the children, he referred to the fact that it was reported that Sumayyah had consistently said that she preferred to stay in Hong Kong with her father. He considered that that was a factor but because Sumayyah was only 7 years old, she was at the lower end of an appropriate age to hold a considered view.

14. It would appear that there were 2 major factors which influenced the judge. In the first place he considered the status quo should be maintained and, in the second place there were the findings and recommendations resulting from the Social Welfare inquiry to which weight had to be given.

This appeal

15. On this appeal Mr Pilbrow, who appeared on behalf of the plaintiff, argued that the judge came to a manifestly wrong decision because he had erred in carrying out the balancing exercise in deciding with whom and where the children should live. In making that submission Mr Pilbrow did not seek to avoid the well understood proposition that an appellate court should not interfere with the exercise by a judge of his discretion unless the appellate court comes to the conclusion that the decision appealed from was plainly wrong. Mr Pilbrow drew attention to the case of G v G (Minors: Custody Appeal) [1985] FLR 894. In his speech in that case, Lord Fraser cited with approval, amongst other passages from judgments, a passage from the judgment of Bridge LJ in Re F (A minor) (Wardship: Appeal) [1976] Fam 238 at page 266C-E:

"The general principle is clear. If this were a discretion not depending on the judge having seen and heard the witnesses, an error in the balancing exercise, if I may adopt that phrase for short, would entitle the appellate court to reverse his decision [authorities cited]. The reason for a practical limitation on the scope of that principle where the discretion exercised depends on seeing and hearing witnesses is obvious. The appellate court cannot interfere if it lacks the essential material on which the balancing exercise depended. But the importance of seeing and hearing witnesses may vary very greatly according to the circumstances of individual cases. If in any discretion case concerning children the appellate court can clearly detect that a conclusion, which is neither dependent on nor justified by the trial judge's advantage in seeing and hearing witnesses, is vitiated by an error in the balancing exercise, I should be very reluctant to hold that it is powerless to interfere."

16. There is no dispute that in exercising the discretion the paramount consideration to which the court must have regard is the welfare of the children. The judge commenced his judgment with a reference to sections 3 and 10 of the Guardianship of Minors Ordinance, Cap. 13. In the course of his judgment, the judge considered various factors but made no reference to what must be a vital factor. It is quite clear from the report of the Social Welfare officer that the children are cared for by the defendant's sisters Waseem and Nazir. The defendant's long working hours which, no doubt of necessity, he undertakes, leaves him little or no time with the children. As was observed in the course of this hearing, the reference in the report from the Social Welfare officer to the defendant's making time to take his children and the 2 sisters to "World Carnival" was a reference to a Sunday outing. That it should be regarded as something worthy of comment that the defendant spent a Sunday afternoon with the children, perhaps, exemplifies the difficulty faced by the defendant in finding time to look after the children.

17. The matters which were overlooked and not put into the weighing exercise include important questions as to who looks after the children and what the long-term position is likely to be. The defendant's 2 sisters are young. That they are put in a position of having to look after the 3 children is something which could well be a burdensome imposition. Whatever else might be said, it is clear that the 2 sisters are performing the role of a mother. In those circumstances it would have been appropriate for the judge to have seen the 2 sisters to satisfy himself that it was indeed appropriate for them to undertake this important task. The position of a mother in the life of young children cannot be underestimated. If there is to be a substitute for the real mother, then the court must be satisfied that that substitute is appropriate. I consider that this proposition needs no authority, but our attention was drawn to a number of cases in particular S v S [1972] 117 Sol Jo 34, H v H & C [1989] 1 All ER 262 and Re U (Application to free for adoption) [1993] 2 FLR 992, which all make the same point.

18. Moreover there is the question of what is to happen in the not too distant future. It is a fact, as the judge acknowledged, that the defendant's family is a patriarchal family. The judge referred to the defendant's father as being "the undisputed patriarch of a large family". In the course of cross-examination the defendant reluctantly admitted that his other sisters had married at a young age. One had married at the age of 16. When questioned as to the likelihood of Waseem and Nazir marrying, the defendant said "Well, at the moment, we do not have such intention and we have not thought about such a question." He was immediately picked up on the word "we". His reaction to that was "I mean my two younger sisters. I mean my father do not have such intention." The defendant went on to say that his other sisters had had arranged marriages and that it was for his parents to arrange the marriages of the children.

19. In those circumstances, in view of the importance of the position of the defendant's sisters in looking after the children, it was vital to know what the long-term arrangements were. This was a family where arranged marriages were the norm. Those marriages were arranged by the patriarch. Importantly, in this case, evidence from the sisters and in relation to the likelihood of the sisters getting married, possibly from the defendant's father, should have been available.

20. In the absence of the judge seeing and hearing the sisters I do not consider that the judge could have been satisfied as to the care of the children. As I shall mention below, the absence of any evidence from the sisters is compounded by the fact that the Social Welfare officer does not appear to have had any meaningful interview with the sisters.

21. Whilst not, in any way, wishing to detract from the importance of the court being satisfied in relation to the primary carers of the children, there are a number of other matters which give rise to concern. The 2 sisters speak Punjabi and their ability in Cantonese and English is such that they could give the children no assistance in their schoolwork. Whilst the judge referred to the 2 boys improving, that was against a background where improvement was the only realistic possibility. Sumayyah evidently struggles with her schoolwork. There can be no doubt that if the children were to go to school in England, the plaintiff could be of considerable assistance to them. There is in this respect no equality in the plans put forward by the respective parties.

22. The respective living arrangements in Hong Kong and in London that are described in the reports show that clearly the proposals put forward by the plaintiff would give the children comfortable living surroundings. Unfortunately, the living arrangements in Hong Kong are cramped and the sleeping arrangements could only be contemplated as a short term measure.

23. Ms Yip, on behalf of the defendant, stressed the fact that it was not known what sort of employment the plaintiff would undertake when she returned to London. That is true, but it also has to be observed that the plaintiff has available to her in London accommodation in her father's house which is suitable for both herself and the children. In addition, it would seem that a combination of allowances and benefits that would be available to the plaintiff for herself and her children would put the plaintiff in receipt of an income of approximately ￡11,000 per year which is almost the same as the defendant's income. Given the fact that her accommodation would be provided for, and maintenance payments that are likely to be made against the father, the need for her to work in the immediate future may well be reduced.

The Social Welfare reports

24. In reaching his conclusion the judge said:

"34. ... I have already stated that the exercise of my discretion is wide, but that I must regard the welfare of the children as the first and paramount consideration. When it comes to the practical application of that a court is likely to pay heed to a number of more particular factors to assist. These could be said to give rise to a check-list; they do not amount to presumptions and are readily capable of being displaced by the circumstances of a given case; nor is there any particular order of importance.

35. Among those relevant in this case I include the following: --

...

(g) weight should be given to the findings and recommendation resulting from a Social Welfare enquiry. This is a significant factor; indeed, cogent reasons should be given if a court departs from them. Miss Leung's recommendation follows an investigation comprehensively undertaken."

25. Before considering in more detail the 2 reports to which the judge was referring and the recommendation which the reports contained, I wish to say a few words about the status of the reports.

26. As the judge observed at the commencement of his judgment, section 3(1)(a)(i)(B) of the Guardianship of Minors Ordinance, Cap. 13 requires the court in having regard to the welfare of a minor to give due consideration to "any material information including any report of the Director of Social Welfare available to the court at the hearing;". It is noteworthy that the Ordinance makes no reference to "recommendation". During the course of the hearing of this appeal, this court asked counsel for their assistance as to the way in which the court should approach the report of a Social Welfare officer. Both parties wished to draw to our attention the case of W v W (a minor: Custody Appeal) [1988] 2 FLR 505. In that case, Purchas LJ said at page 511F:

"The appeal has been presented by Mr Cameron on a number of grounds. First, in arriving at the conclusion which he did, the judge differed from the recommendation of the welfare officers and, in so doing, did not give any reasons for his decision. This, Mr Cameron submits, is contrary to the guide-lines in the judgment of this court in the case of Stephenson v Stephenson [1985] FLR 1140, at p.1145 delivered by Wood J, where reference is made to the judgment of Ormrod LJ (as he then was) in Cadman v Cadman (1982) 3 FLR 275, at p.277. The burden of those authorities is to the effect that, of course it is entirely within the discretion of the judge whether or not to accept the recommendation of the welfare officers; but, if the recommendation is not followed, it is highly desirable that the judge should indicate in his judgment the reasons why he has not done so. These may take a number of different forms. He may assess the facts differently; he may have reached a professional view of the impact of those facts upon the welfare of the child; he may have been given evidence of matters not available to the welfare officers; he may even have observed attitudes and behaviour of the parties when they appeared before him which would lead him to differ. But, whatever the reasons are, it is desirable that they should be given. Mr Cameron says no such reasons were given. I shall come in a moment to the part of the judgment over which this submission revolves."

27. It is important, however, that the status of a recommendation in a report from a Social Welfare officer is not raised to the status of a decision which should only be interfered with on grounds similar to an appellate court interfering with an exercise of discretion. The references to the cases referred to are instructive in this regard. Wood J in the case of Stephenson v Stephenson pointed out, at pages 1145-1146, that the role of the welfare officer was to assist the court by informing the court of factors which the court would otherwise not know. He went on to say that the officers usually conclude their reports with a summary of the factors for and against each course which it is open to the court to take. He then said "... in some cases, he or she may feel sufficiently strongly about a case to make a positive recommendation - indeed, on those occasions when they give oral evidence the court sometimes asks for the view of the welfare officer."

28. I would agree with Wood J, that the welfare officer's position to make a recommendation should arise when the circumstances of the case are particularly clear. The welfare officer should not make a recommendation as a matter of course and should certainly not do so where it is a question of a balancing the relative merits of one course or another, unless specifically invited to do so by the court. The exercise of the judge's discretion should not be trespassed upon. In any event, it seems to me that the correct approach to a recommendation made by a welfare officer is set out in the judgment of the Court of Appeal in Re V (residence: review) [1996] 3 FCR 101 at p.110F:

"In a judgment were a Judge gives reasons for his decision and those reasons demonstrate that his decision is not manifestly wrong he is not under any further duty to spell out his reasons for departing from the court welfare officer's report. In this situation the Judge's reasons for reaching his own decision are normally the very reasons for his declining to follow the court welfare officer's recommendation."

29. In this case, the Social Welfare officer appears to have taken the decision to make a recommendation in circumstances where, in my view, she clearly should not have done so. In the first place, it is clear from paragraph 40 of the first report, that the Social Welfare officer had only the most basic communication with the sisters. A statement such as "They nodded their head strongly to show their willingness to stay in Hong Kong to take care of the three children." is hardly an indication that the Social Welfare officer, who could not speak Punjabi, and the sisters, who could speak only rudimentary Cantonese and English, could have had any meaningful conversation, let alone one where the Social Welfare officer should have been satisfied as to the appropriateness of the primary carers of the children.

30. In the second place, the Social Welfare officer saw fit to express a recommendation despite the fact that she was aware that an International Social Service welfare report was being prepared and that she had not seen it. In the light of these two factors, which would appear to be highly important for the welfare of the children, the Social Welfare officer was to a large extent shooting in the dark. Her recommendation must, in those circumstances, be highly suspect. It would appear that the Social Welfare officer's recommendation that the children should not go to England were based on concerns such as the children's ability to adapt; the children's potential relationship with the relatives of the plaintiff in the United Kingdom whom they had not previously met; the age and health of the plaintiff's parents and the difficulties faced with language.

31. None of these factors are questions of fact which the Social Welfare officer had observed. They are matters of opinion bordering on the psychological and it may be questioned as to the qualification of the Social Welfare officer to make observations in that regard which would carry any more weight than anybody else's. Indeed, as regards the last point it would appear that the children would be better off with their mother who can speak English, if they went to an English school, then they would be with their aunts who can only speak Punjabi, if they went to a school in Hong Kong.

32. My reservations as to the qualification of the Social Welfare officer to base a recommendation on the points to which I have referred, are increased by the fact that the Social Welfare officer appears to have had no previous experience in relation to cases such as the present. She said in evidence that she had never previously dealt with removal applications. Her previous experience had been in relation to single parent families and she had prepared about 10 reports for court in the two preceding years. Her inexperience was perhaps exemplified by the fact that she had not read the affidavits that had been filed in the case and that when she came to court she did not have her notes with her.

33. Before concluding this aspect of the case I should also observe that I have some difficulty with regard to the way in which the Social Welfare officer commented on the meetings between the plaintiff and the children. The children were of a very young age. They had been separated from their mother for a long time. When they met the mother they did so as a person whom they had not seen for months and who was thus something of a stranger to them. When they met the mother in the park it was near to where they lived with the defendant. He was, apparently, in the vicinity. The strained relationship between the defendant and the plaintiff must have had some effect on the children. The Social Welfare office, where another meeting was held, can hardly be classed as an ideal location. When the children went to stay with their mother it was in premises which, by all accounts, were distinctly unsavoury. It could hardly be surprising that the children found this unappealing.

34. In these circumstances, I consider that the recommendation in the reports must carry no weight and I have no hesitation in saying that the court should have paid no attention to it.

Conclusion

35. This court is fully aware of the role it plays in reviewing an exercise of discretion by a judge in a custody matter. Nevertheless, for the reasons which I have given I am of the clear view that the decision arrived at below was made in error. Once that view is formed not only is it open to this court to review the decision but this court must do so. In this case it is not difficult to see that the welfare of the children would be better if custody were given to the plaintiff.

36. I have already outlined many of the important factors which lead to the conclusion that the plaintiff should be given custody of the 3 children. The judge considered that the plaintiff's plan was sound. There can be no doubt that the role of a mother in looking after young children is particularly important. The 2 boys are, in my view, still very young. Sumayyah is only a little older, but being a girl, also needs a mother's attention. Whilst reference is made in the Social Welfare officer's report and in the judgment to Sumayyah's expressed preference for staying in Hong Kong with the father, that has to be seen in the context of a child not wishing to have change and perhaps, expressing a fear of the unknown. The apprehension that the children would not be able to settle in a new environment with relatives whom they scarcely know is, in my view, overrated. Young children are adaptable. Although the judge considered that it was important to maintain the status quo, I do not consider that the period subsequent to the children's return to Hong Kong and prior to the hearing was sufficiently long that a change of environment would be unduly disruptive.

37. Importantly, the children are struggling at school and I have no doubt that the schooling which will be available to them in England will be more compatible with their home environment and the assistance which can be expected to be provided at home than would be the case if they remained in Hong Kong. As already noted, the accommodation that is available for the children in England is a great deal more desirable than that which they have been enjoying since they returned to Hong Kong.

38. In saying this, I have not lost sight of the judge's observations in relation to the plaintiff's departure from Pakistan. That does, however, have to be viewed in the context in which it happened. Although Sumayyah was clearly distressed by the suddenness of the unannounced departure, that is wholly understandable. It does not mean, however, that the plaintiff was not acting with the ultimate intention of putting herself in a position to be the children's carer. Certainly, it cannot be said that the plaintiff departed Pakistan with the intention, for example, of living with another partner.

39. Finally, I should make clear that decisions of this nature rank amongst the most difficult which judges are called upon to make. As was said in the cases, the decision has to be that which is considered to be the least imperfect. In this case, it is clear that whatever will there might be, whichever of the parties does not have custody of the children will find it difficult to see the children except on a very irregular basis.

Hon Le Pichon JA:

40. I agree with the judgment of the Vice President.

Hon Yuen JA:

41. I agree that the appeal should be allowed and that it be ordered that the Plaintiff be granted custody care and control of the children and that a removal order be made for her to bring them to England.

42. It is clear from the judgment that the judge had given a great deal of thought to this case, but with respect, he appears to have neglected the fact that given the very long hours that the father has to spend at work, in effect the children's primary care-givers would be his sisters. This was not in the judge's "check-list" because he did not think the children were in the "very young" category (even though the youngest was only 4).

43. The effect of the father's reliance on his sisters was that his plan for the children could only be considered as "secure" for as long as his sisters are able to provide for the basic physical needs of the children. Yet the sisters have remained virtually unknown characters. No reason was given why they were not called at the hearing. The judge had no opportunity to see and hear them directly (with the assistance of proper interpretation), so as to determine for himself their attitudes towards the care-giving task that they have been assigned and their ability to perform that task - not just at present but also in terms of the foreseeable future, and not just their physical ability but also in terms of their own levels of maturity.

44. If, following the other girls in this family, the sisters are married off in their late teens or soon after, the children's lives would be severely disrupted. Who will then be their care-giver? Miss Yip suggested it might then be the grandmother (who lives in Tseung Kwan O) but there was no evidence of what the arrangements then would be. With the prospect of the sisters being married off within a few years being a distinct possibility in this family, these were matters that required evidence to be adduced for the judge's consideration.

45. Even if the sisters are not married off as early as the other girls have been, the judge appears, with respect, to have neglected the fact that before long, as the children grow older, they will have needs that go beyond basic physical care. The sisters are not that much older than Sumayyah, the elder girl being only 12 years older. Would the sisters have the same level of maturity as the Plaintiff to guide Sumayyah as she develops, when they have not themselves had experience of growing up in a cosmopolitan urban environment? These were problems that the father should have addressed and the judge with respect should have taken into account.

46. Miss Yip submitted that the situation here was no worse than situations where children are cared for by domestic helpers and see a parent only after work everyday. With respect, that does not take into account the extraordinarily long hours that the father in the present case works. However committed he may be to his children, the little "quality time" he can give them cannot be compared with the time that the mother can devote to them living in England with much less pressing financial need to work long hours.

47. As for the position of social welfare officers, they are the eyes and ears of the judge outside the courtroom and often the observations contained in their reports are of much value. However I agree with the learned Vice-President in cautioning against the provision of recommendations as a matter of course, particularly if there is insufficient material on which recommendations can safely be made.

48. For instance, the 1st report was prepared after an international social welfare report had been sought but was not yet available. Nevertheless, the 1st report contained a recommendation that the father be granted custody care and control on the grounds that there was "greater uncertainty for the mother to fully implement her childcare plan". When the international social welfare report did become available, it showed that there were no grounds for uncertainty and that the children would be safe and well cared for by their mother in England.

49. In oral examination on this point, the social welfare officer said candidly that in the absence of those uncertainties, it was a "difficult decision to make the recommendation to your Lord[ship] about the custody of the children". Given that situation, the social welfare officer should simply have realized that she had done everything that she could have in providing materials to the court, refrained from making a recommendation that she had difficulty with and left the decision to the judge.