M v. H

FCMP 19 / 2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 19 of 2004

_________________

_________________

______________________

J U D G M E N T

______________________

1. This is a very sad case in which the Applicant Mother applies for the return of her 2 little boys KF and CP, now aged 6 & 7 years respectively, whom she left in the care of their paternal grandfather, the Respondent herein, some 5 years ago after the accidental death of the boys’ father.  The boys have since settled well in their grandparents’ family and have shown strong rejection of their mother whose application is strenuously opposed by the Grandfather.

Background

2. The Mother was born in 1973 to a farming family of 6 children in Kwongtung Province, China.  She completed Form 3 of the secondary school and started working at the age of 18 first as a factory worker and later as a salesgirl in Shenzhen.

3. The Grandfather who is now in his early 60s, was also born and raised in China.  He and his wife Ms L have 6 children.  He spent most of his working life in China as a farmer until about 1980 when he came to work in Hong Kong as a ship maintenance worker.  In 1999 he had an accident breaking his leg and has since retired.

4. On 1^st May 1995, at the age of 22, the Mother married the Father in China.  After the marriage the couples lived with the Grandfather’s family in his ancestral house in Sun Lung Village, Ah Kai Town, Tze Kan County, Kwongtung Province where the Mother became a housewife.  In September 1995 her husband came to join his father in Hong Kong working also as a ship maintenance worker, regularly remitting money to the Mother in China for her support and visiting her from time to time on weekends.

5. In late 1996 or early 1997 the couples adopted the illegitimate son born to the younger sister of the Father after she had subsequently gone missing.  This child, CH, was then raised by both the Mother and the Grandmother in China.  He is however not the subject of dispute here.

6. On 28^th September 1998 the Mother gave birth to her own son CP in China.  Unfortunately, on 26^th April 1999 when she was about 2 months pregnant with the second child KF, the Father died in an accident at work in Hong Kong.  On 1^st May 1999 the Mother arrived in Hong Kong on a 3 months visa for her husband’s funeral.  Initially she stayed at the Grandfather’s home at Shek Lei Estate, Kwai Chung, then at the home of her aunt Madam Ma, and subsequently moved in with her sister-in-law Madam Ho and her family in Yuen Long.

7. During this period of time the Grandfather and his family were given comprehensive social security assistance as a result of the loss of financial support from the Father, and were also given assistance to seek employees’ compensation in the District Court.  Meanwhile the Mother overstayed in Hong Kong where she later gave birth to her second son KF on 18^th November 1999.  In February 2000 she moved back with KF to the Grandfather’s place at Shek Lei Estate.  6 months later in late August 2000 the Mother was deported back to China after giving herself up to the Hong Kong Immigration Department.  At about the same time KF was also brought by the Grandfather to China to be with the Mother and CP at his ancestral home in Au Kai Town.

8. In about February 2001 the Mother left her 2 sons in the care of the Grandfather and his wife in Ah Kei Town and returned first to her family in the same village, and later to work in Shenzhen.  The circumstances under which the Mother left her 2 sons are greatly disputed between the parties, with the Mother accusing the Grandfather of treating her badly, while the Grandfather accused her of abandoning her children, but the upshot was that Mother did sign an agreement giving custody of her sons to the Grandfather, which document was subsequently submitted to the People’s Court of Chi Kam County, Kwongtung Province for approval and record.

9. Meanwhile the employees’ compensation proceedings in Hong Kong arising from the death of the Father brought by the Grandfather, with the assistance of a Declaration and Power of Attorney allegedly made by the Mother and bearing her name chop, for himself and his family members including the 2 children in questions, were concluded in mid-2001, with the compensation of $851,987.50 apportioned amongst the grandparents, 4 of their children, and the 3 boys including the adopted CH, but not the Mother.  As minority interests were involved, a sum of $643,200 was paid into the District Court for the 3 boys in the following proportion :

(i)	$156,000 for CH by monthly payment of $1,000 each;
(ii)	$180,000 for CP by monthly payment of $1,000 each;
(iii)	$307,200 for KF by monthly payment of $1,600 each.

10. These payments have since been paying out of Court on a monthly basis into the Grandfather’s Bank of China savings account for the benefit of the children.

11. Since the Mother’s departure, the Grandfather brought KF back to Hong Kong to live with him and under his care at his public housing unit in Shek Lei Estate, Tsuen Wan, while his wife remained in China to look after CH and CP.  In 2003 CP was allowed to settle in Hong Kong and so later in the same year he left China to join the Grandfather and KF at their home in Shek Lei Estate.

12. At about the same time the Mother took out legal proceedings in the People’s Court of Chi Kam County, Kwongtung Province against the Grandfather for the custody and return of her sons.  Both parties were represented by lawyers and after a hearing, the Mother was granted custody of her sons on 2^nd June 2003.  Although the Grandfather’s subsequent appeal to the People’s Middle Court of Ho Yuen City, Kwongtung Province was also dismissed, by then CP had already left China to join the Grandfather and KF in Hong Kong.

13. On 9^th October 2003 the Mother was also allowed to settle in Hong Kong and so she arrived on 12^th October 2003 and has since been staying with her uncle’s family in Tuen Mun, New Territories.  She then sought and obtained legal aid in the said employees compensation proceedings as well as in these proceedings, which she launched on 4^th February 2004 by issuing an originating summons for an order requiring the Grandfather to forthwith return CP and KF to her as well as their travel documents and other identification documents, and an injunction prohibiting him from removing the children out of Hong Kong.

14. The application was opposed by the Grandfather and a social investigation report was therefore called for at the initial hearing.  In the meantime the children were prohibited from leaving the jurisdiction without leave of the Court, and the Mother was given interim visiting access on Saturdays to be assisted and supervised by the Social Welfare Officer.

15. The 1^st report, which was dated 14^th May 2004, revealed that the officer Ms Tam had difficulties conducting a comprehensive investigation because she found the Grandfather not co-operative in bringing the children to her for interview or for access by the Mother.  Accordingly further report was called for and the Official Solicitor was brought in to represent the children’s interests.

16. In the meantime the Mother started to encounter difficulties in seeing the children after her first access which was a success when she was able to take the boys out for meals and fun without any problem, but in all subsequent access she would experience great difficulties and rejections from them, in particularly from CP, when they would run away from her, scold her with all sorts of accusations, and make rude and derogatory remarks about her, which she suspected was due to improper influence on the part of the Grandfather and his family.  As a result the Official Solicitor suggested that a clinical psychologist should look into the matter and carry out the necessary assessment of the children, which suggestion was accepted by the parties and endorsed by the Court.

17. By December 2004 the Grandfather was granted legal aid in the proceedings, and filed his 1^st affirmation on 24^th December 2004 to formally oppose the application and sought custody of his 2 grandsons to him instead.  He also denies ever exerting any influence on the children against their mother and explains that they reject her because she was mean to them and abandoned them years ago without much contact.  He also believes that she applied for their custody in China so that she could come to Hong Kong, and her present application is motivated by her greed for the compensation awarded to the boys.

18. The Grandfather’s allegations are denied by the Mother who insists that it was his bad treatment of her that drove her away, but she did visit her sons initially about once a week, and after she started working in Shenzhen, she would try to visit them whenever she could, about once a month on average.  She also explains that she signed the agreement at the time when she left to let the Grandfather have custody of her sons at his suggestion that it would enable CP to obtain the right of abode in Hong Kong which she thought was in his best interests in the long run.

19. She claims that thereafter she started to experience difficulties in seeing her sons, in particularly after the Grandfather had brought KF to Hong Kong without informing her or the whereabouts of her sons, she therefore decided to bring proceedings in China to get back the custody of her sons from the Grandfather, but despite the order by 2 Chinese Courts in her favour, the Grandfather has still failed to return the boys to her.

20. On 14^th June 2005 a further social welfare report as well as the psychological assessment report were submitted to Court.  The social welfare report revealed that the Mother had continued to experience difficulties with access as the boys refused to even go out with her, let alone to stay overnight at her place during alternate Saturdays, as she was allowed by an order on 25^th February 2005.  As a result the Mother could only see the boys on some Saturday afternoon at their school through the arrangement and assistance of the social welfare officer and the school teachers.

21. Despite the boys’ strong rejection of their mother, the social welfare officer Ms Tam in her report concluded that their best long term interest lie in the direction of the Mother having custody of the boys, but that if the situation warrants, residential childcare service can first be arranged for the boys for counselling until they are able to establish their relationship with their mother before going to live with her.

22. The clinical psychologist Ms Tong also observed in her report that both boys and in particularly CP have shown great dislike and denigration towards their mother as they are emotionally trapped in the adults’ conflicts, and that psychological treatments to rebuild the children’s relationship with their mother would be extremely difficult given their distrust of their mother and the loyalty conflicts that they are caught between their grandparents and their mother.

23. Nevertheless Ms Tong, as well as her subsequent replacement Ms Wong, supports the recommendations of the social welfare officer and concludes that the present access arrangements are unable to help to rebuild the mother-sons relationship, in particularly for CP who she says should first be sent to a neutral environment such as small group home run by the Social Welfare Department to free himself from the pressure of adults’ conflicts, and to allow him the emotional space to approach and relate with his mother, whereas for KF, Ms Tong feels that it is not necessary to remove him to a neutral environment since it would not be difficult for him to adjust to the custody change and to relate to his mother, towards whom he has been observed to behave well when alone with her, and that most of his rejecting behaviours appear to have been simply copied from CP.

24. This recommendation of removing the boys, whether both of them or just CP to a neutral environment was, unsurprisingly, not attractive to either party, but is supported by the Official Solicitor who however agrees with the Social Welfare Officer that KF should also be removed with CP as it was felt that they have close bonding and could provide support to each other in the small group home.

25. In her report dated 5^th August 2005, Ms Cheung for the Official Solicitor however stressed that the recommendation to remove the children to a neutral environment does not mean that in the long term they should or should not stay with the Grandfather, as it is only an interim measure to take the children away from the tension and conflicts and to give them the much-needed psychological treatment in a neutral environment, with the final question of their custody to be assessed only at a later stage.

26. The parties and the Official Solicitors subsequently decided that it would be appropriate that there be a mini-trial on this particular matter for 3 days in late November 2005 before the main trial on the issue of custody, by then already fixed for 2 weeks in January 2006.  Unfortunately the hearing in November 2005 overran and was eventually carried onto the main trial in January 2006.  Both parties gave extensive evidence at the trial, as did their witnesses as well as the Social Welfare Officer and the clinical psychologists.

The Law

27. Although it was not specifically stated in the heading or title of the originating summons issued by the Mother in these proceedings, or in fact anywhere else that document or in her affirmations in support, it is common ground that her application for inter alia the return of the 2 children to her or to her care and custody is governed by s. 10 (1) of Guardianship of Minors Ordinance, Cap. 13 which provides that :

“	The Court may, on the application of either of the parents of a minor …… or the Director of Social Welfare, make such order regarding-
	(a)	the custody of the minor; and
	(b)	the right of access to the minor of either of his parents,
	as the Court thinks fit having regard to the welfare of the minor and to the conduct and wishes of the parents”.

28. But as regard the Grandfather who is opposing the application and who is also clearly claiming the children’s custody in his various affirmations filed in these proceedings, as he is the grandparent, whom one might commonly call “a stranger”, it is not clear what power the Court has under s. 10, or any part of the Ordinance for that matter, to award custody of a minor to a person who is neither a parent nor the Director of Social Welfare.

29. Section 5 of the Ordinance, however, should be of relevance.  It provides that :

“	On the death of a parent of a minor, the surviving parent, if any, shall, subject to this Ordinance, be guardian of the minor either alone or jointly with any guardian appointed by the deceased parent; and
	(a)	where no guardian has been appointed by the deceased parent; or
	(b)	in the event of the death or refusal to act of the guardian ro guardians appointed by the deceased parent,
	the Court may, if it thinks fit, appoint a guardian to act jointly with the surviving parent”.

30. Clearly in this case with the father having died without appointing any guardian of his children, the Grandfather can ask the Court in the circumstances, if it thinks fit, to appoint him a guardian to act jointly with the Mother.

31. It is also provided under s. 9 of the Ordinance that where 2 or more persons act as joint guardians of a minor and they are unable to agree on any question affecting the welfare of the minor, any of them may apply to the Court for its direction, and the Court may make such order regarding the matters in difference as it may think proper.  Surely this must include such questions as to which guardian the minor should be residing with or in whose care and custody which guardian should have, as part of the welfare of the minor.

32. There is also the case of Re R (an infant) (custody to non-parent) [1974] 1 All ER 1033 when the question of whether the Court had power under s. 9 (1) of the English Guardianship of Minors Act 1971, upon which our s. 10 (1) was based with similar wordings, to award custody of a minor to a person who is neither a parent nor guardian.

33. In that case the parents had 3 daughters.  The second daughter required special care and was therefore sent to live with her maternal great-aunt in February 1971.  In October 1971 the father and mother separated and the eldest and youngest daughters went to live with him.  The father applied for custody of the second daughter under s. 9 (1) of the Guardianship of Minors Act 1971.  His application was dismissed as the Court concluded that it was in the best interests of the daughter to remain with her maternal great-aunt.  The father appealed.  In dismissing the appeal, Arnold J held that the wide language of s. 9 (1) of the Guardianship of Minors Act 1971 indeed embraced the possibility of an order for custody being made in favour of somebody who is neither a parent nor a guardian of an infant child or minor but whom one might for convenience call “a stranger”, and went on to make a custody order in favour of the maternal grant-aunt and to regulate the access both of the father and the mother.

34. In our jurisdiction, as aforesaid where our s. 10 (1) of the Guardianship of Minor Ordinance provides almost identical wordings as s. 9 (1) of the English 1971 Act, I see no reason why our Court should not take a similarly wide view and make such order on custody and access in favour of non-parents such as grandparents under this section as the Court thinks fit having regard to the welfare of the minor, the general principles of which are of course set out in s. 3 (1) (a) of the Ordinance as follows :-

“

…… the Court shall regard the welfare of the minor as the first and paramount consideration and in having such regard shall give due consideration to the wishes of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practical to do so; and any material information including any report of the Director of Social Welfare available to the Court at the hearing …… ”

35. It has been said, of course, that the welfare of the minor is in normal circumstances best served being with the parents, as per Waite LJ in Re W (A Minor) (Residence Order) (1993) 2 FLR 625 at p.639 :

“	…… the welfare of the child is indeed the test, but there is a strong supposition, other things being equal, that it is in the interests of the child to be brought up by his natural parents”.

36. So in the case of Re K (A Minor) (Wardship : Adoption) [1991] 1 FLR 57, where the mother left her baby to a couple to look after at a time of difficulty and stress.  Some seven and a half months later, she changed her mind and asked for the return of her child, but the couple, who were warm and loving and had lavished love and devotion on the child, refused and brought wardship proceedings.  The wardship judge asked herself who would provide a better home for the child and granted care and control to the couple with a view to adoption and terminated access to the parents.  Both the natural parents and the local authorities involved appealed against the judge’s decision.  In allowing the appeal, Butler-Sloss LJ in the Court of Appeal said this : -

“

The mother must be shown to the entirely unsuitable before another family can be considered, otherwise we are in grave danger of slipping into social engineering.  The question is not : would the child be better off with the plaintiffs “  but : is the natural family so unsuitable that, as Fox LJ said, “the welfare of the child positively demanded the displacement of the parental right” ?  I agree with Fox LJ that it is the right of the child rather than the parent and, borrowing from the philosophy of the Children Act 1989, I would rephrase it as the displacement of the parental responsibility.  Once the judge found that this mother genuinely wanted her child back and was a mother who cared properly for the other two children, not to give her at least an opportunity to try to rehabilitate the family was to deprive the child of any chance of her own family”.

37. It is however the Grandfather’s case that this Mother is unsuitable to have the custody of her sons because she abandoned them when they were small and now she wants them back because she is after the compensation awarded to them.  It is therefore encumbrance on me to first examine the evidence on the circumstances of the Mother leaving her sons in the care of their grandparents.

38. In her 1^st Affirmation, the Mother explained that she could not tolerate the Grandfather’s unpleasant manner and attitude to her including shouting and yelling at her for no reason, she therefore decided to return to live with her parents, but she could not take her sons with her as the Grandfather threatened to chop her if she dared to do son.  As her parents’ home was only about half an hour’s journey from the Grandfather’s house, she could therefore frequently visit her sons.

39. The Grandfather told a different story.  In his 1^st Affidavit he alleged that the Mother had not shown much love or affections for her sons and would easily lose her temper on them after their birth.  The situation became worse after her return to China, when she failed to take proper care of the children and used to make a scene on trivial matters, resulting in frequent quarrels between her and the Grandfather and other members of his family, so much so that on the date of 31^st January 2001 she suddenly packed her belongings to return to her family, claiming that she was still young to start a new life and left the children behind with him.

40. The Grandfather further claims that despite his subsequent pleading with her parents at their home and the intervention of the village elders, the Mother refused to change her mind about her sons and eventually agreed to formally give up their custody to him, which agreement was subsequently endorsed by the local People’s Court of Chi Kam County.

41. It is of course not always easy to resolve such conflicting evidence over events which occurred more than 5 years ago, especially when there was no other evidence save for the parties’ own words, although the Grandfather’s evidence was also corroborated by his wife who has filed an affirmation in his support supplemented with oral evidence at the trial.

42. The truth, I believe, can perhaps be found in the report dated 5^th February 2001 (B1:110) from the Rural Committee of Sun Lung Village after intervening in the matter, which was exhibited to the Grandfather’s 1^st Affirmation and stated the following : -

“

….. M while living at this village feels very depressed because of unfortunate death of her husband.  Quarrels arose among family members on trivial matters has caused breakdown of their relationship.  She does not want to stay with the family anymore.  On 31st Januayr 2001 from morning till 2:00 p.m., our village officer Lei had rendered substantial reconciliation work for M, her natural father, mother and elder brother and sister but finally failed.  At 2:30 p.m. that day, she left together with her natural father, mother, elder brother and sister abandoning her 3 natural children. These 3 children are to be maintained by their grandfather and grandmother”.

43. The Mother was then still in her 20s, having recently lost her husband and was told, as the evidence reveals, by the Grandfather to stay in his house in China to look after 3 small children before he was to return to Hong Kong by himself without any concrete plan for financial security for them, and given her then depressed mental state and the fact that the Grandfather might not have been the easiest person to get along with, and I say this on my observation during his lengthy evidence in Court which gave an impression of an authoritative, grouchy and grumpy person, I can understand why the Mother decided to leave her sons in the care of their grandparents in order to look for work to become financially independent and perhaps, in the Grandfather’s words, to start a new life.  It certainly was not the best decision by a mother, especially one with very small children, but given the circumstances at that time it does not deserve, in my opinion, the kind of harsh criticisms from the Grandfather and his family either.

44. Nor do I believe that she had abandoned her sons by failing to visit them at all except once during all these years as alleged by the grandparents, when in fact one of them, the Grandfather, had spent most of his time in Hong Kong and hence it could not be within his personal knowledge whether the Mother did, as she claims, visit her sons from time to time, initially every week when she was still living in the same village, and later about once every month or two after she had found work out of town in Shenzhen, whose evidence seems to have found support from the elder boy CP who disclosed to the Social Welfare Officer in early 2004 that the Mother last visited him sometime in the year before in China.

45. Even if one were to accept the Grandfather’s evidence that the Mother did abandon her sons, which I don’t, should she not be allowed to say that she now regrets very much her action in the past and that she should be given an opportunity to make amend by resuming her parental responsibility towards her sons and re-establishing her relationship with them?  Not so, argued by the Grandfather as he believes that the ulterior motive behind her present action was first to get approval of her single journey permit to come to Hong Kong through her custody proceedings in China, followed by her custody application in Hong Kong in order to get at her sons’ entitlement to the compensation.

46. The Grandfather’s evidence is that the Mother had always wanted to come to live in Hong Kong, but with the death of her husband, she could no longer rely on the ground of reunion with her husband to get the necessary single journey permit from the Chinese Authorities to come to Hong Kong, but for some reason unknown her application for the permit was unexpectedly approved in early 2003.  However, when the Grandfather was informed by the Chinese Authorities of the matter, he queried their approval of her application and disclosed to them that the Mother had already given up custody of her sons to him hence there was no reason for her to come to Hong Kong to see her sons, as a result her permit was subsequently withdrawn, which explains, he argues, why she then had to apply for custody of her sons in China, thinking that it was the only way to come to Hong Kong, and the fact that she subsequently successfully obtained the permit for Hong Kong, the Grandfather argues, goes to support his case.

47. The Mother does not dispute that she, like many Mainland residents, had always wanted to come to Hong Kong, but denies that she used the custody proceedings in China in order to get the single journey permit.  She insists that it was because the Grandfather refused to let her see her sons or to let her know where they were that caused her to apply for their custody in China, hoping to be able to bring them to Hong Kong with her, and then when she learnt that the Grandfather had tried to stop her from getting the single journey permit, she was able to persuade the Chinese Authorities to let her leave by showing them the judgment from the Chinese Court.

48. It is again just the Grandfather’s words against the Mother’s without any independent or documentary evidence which is important in determining the correct sequence of the events relied on by the parties, but it does beg one obvious question :  If what the Grandfather says about the Mother’s abandoning her sons and never visited them is true, why then was he so concerned about her coming to Hong Kong that he had to disclose to the Chinese Authorities that she had given up custody of her sons to him and queried their justification for granting the single journey permit to her?  In other words, why was he so concerned about her being allowed to come to Hong Kong?

49. The likely answer, in my mind, could well be because he did not want the Mother to come to Hong Kong to interfere with his arrangements for his grandsons which, if true, goes to support the Mother’s case that he had refused to let her see her sons or tell her their whereabouts.

50. This in fact appears to be supported by the judgment of the People’s Court of Chi Kam County (B1 : 36, 38) which recorded that the Grandfather in the custody proceedings in China in fact made no comments on the Mother’s case that he had tried to stop her from leaving China to see her sons.

51. It is however also the Grandfather’s case that the Mother, having arrived in Hong Kong, instituted her present custody application solely for monetary gain :  To get her sons’ entitlement to the employees’ compensation.  He relies on the following : -

(i)

that she had received certain donations from Apple Daily News after the death of her husband which she had kept for herself without sharing with her sons or the Grandfather’s family;

(ii)

when she visited Hong Kong in 2002 on a double journey permit, she found out about the amount of employees’ compensation awarded for her sons and that she herself had been excluded from the compensation due to the fact that she did not have custody of her sons, she therefore planned the whole thing including the custody application in China as well as the present proceedings in order to get her sons’ share of the compensation, which is the reason why when she was allowed to come to Hong Kong in October 2003, the first thing she did was to apply to re-open the employees’ compensation case while her present application for custody of her sons was made only sometimes later.  This shows, the Grandfather argues, that the Mother is only interested in her sons’ compensation rather than their welfare.

52. The Mother does not deny that she did receive some donations from readers of Apple Daily News upon the tragic death of her husband, as did the Grandfather initially which was also of similar amounts of $100,000.  She insists that she did share some of the earlier donations with the Grandfather, although she did try to keep the last sum received of about $15,000 from him or his family because she says she needed the money for herself and her family and hence she did not want the Grandfather to know about this last sum of donation from the newspaper, but insists that this has nothing to do with her present custody application.

53. As to her application to re-open and re-apportion part of the employees’ compensation case to her, the Mother’s explanation is that she thought she had the judgment from the Chinese Court in her favour and hence it was not necessary to institute similar proceedings in Hong Kong for her sons’ custody until she was told otherwise by her lawyers here, which explains the slight delay in the custody application in Hong Kong.

54. It is not in dispute that the Mother knew about the employees’ compensation long ago when she first came to Hong Kong for her husband’s funeral in 1999 when she was accompanied by one of her husband’s sisters Ms H to the Labour Department to process the application.  This was also readily admitted by the Grandfather in his 1^st Affirmation.  The Mother must therefore have been told that she, being the widow and mother of 3 children of her deceased husband, would be the main dependent and applicant of such application.  If she was indeed greedy and was after the compensation, it begs the obvious question of why she then subsequently left her sons with the Grandfather and went away to work, instead of holding on to the children in the Grandfather’s household so as to keep any eye on the compensation, as afterall, being the main dependent and the mother having custody of 3 children of her deceased husband with full dependency, she would have been entitled to the bulk of the compensation?  The Grandfather has simply failed to provide any answer that would make sense of his allegation.

55. Nor does he have any valid explanation as to why the Mother would make a Declaration (B1 : 25) and Power of Attorney (B1 : 28) with a name chop to enable him to make the application for employees’ compensation instead of signing the documents herself.  It is her evidence that she never made those documents and was not aware of them until much later.  The Grandfather insists that she knew about the documents but as she did not want to return to his home village in China to attend before the Notarial Officer and therefore she used her name chop so that he could bring the documents to China, as she was then overstaying in Hong Kong and once she left she would not be allowed to return.

56. This however still does not explain why she could not be simply asked to sign her name on the documents, instead of using a name chop, something which she never used before as she always signed her own name, and either way would not have made any difference as she would not be present in front of the Notarial Officer anyway.  Furthermore, if the Grandfather needed the Mother’s Declaration and Power Attorney, the contents of which clearly show that their sole purpose was for the application for employees’ compensation in Hong Kong, he could have simply asked his Hong Kong lawyer to prepare the necessary documents for this purpose and then asked the Mother, who was then in Hong Kong, to attend at his lawyer’s office to sign them, with his lawyer as witness, rather than making the documents himself and in such a manner before a Chinese Notarial Officer in China with a name chop but in the absence of the Mother.  His action aforesaid simply does not make any sense unless it was because he knew the Mother would not have agreed to sign these documents in the first place.

57. It is of course correct for the Grandfather to say that the Mother appeared to have shown serious interest in the employees’ compensation.  In her 1^st Affirmation she stated that it was in October 2002 when she came to Hong Kong on double journey permit and found that that the Grandfather had applied for the compensation but she was not granted any money at all.  It was then that she said she went on to discover about the Declaration and Power of Attorney.  She also made enquiry with one of his daughters the said HYL about the compensation but was told that they could not get anything.  So upon her arrival in Hong Kong in October 2003, she applied for legal aid almost right away to re-open the employees’ compensation case, and her lawyers were subsequently able to ascertain from the Court documents that indeed she was not given any compensation at all because the Grandfather had disclosed to the Court that she had left the family leaving custody of the 2 boys to him.  She therefore believes that the Grandfather had not told the Court all the relevant circumstances including her known whereabouts after leaving the boys with him.  In any event she has confirmed that she no longer wishes to pursue her claim for her share of the compensation.

58. Nevertheless, this raises another question the answer to which is not altogether clear :  Why is it that the Mother was excluded in the final apportionment of the employees’ compensation when it was clear from the initial documents including the requisite Social Investigation Report on dependency filed in the employees’ compensation application that the Mother was amongst the dependents ?  The Grandfather explains that it was because she had given up custody of her sons, but surely that should not have affected her own right and entitlement as the widow?   If she was indeed after the compensation as alleged by the Grandfather, given the circumstances aforesaid and the many unanswered questions over the Grandfather’s actions, one cannot help but suspect that it certainly did not appear that the Mother was the only one who was after the compensation.  In any event she has confirmed that she no longer wish to pursue her application to re-open the employees’ compensation case.

59. Ms Tam, the Social Welfare Officer in these proceedings, nevertheless does not believe that the Mother’s present custody application has been motivated by her greed for the compensation.  She wrote this about the Mother in her report of 3^rd January 2005 (A1 : 67, 75):

“

Although M left the matrimonial home in mainland after Lunar New Year 2001, she kept on visiting CP in mainland.  She also applied to the Court in mainland to resume her custody on the boys.  M has tried to maintain her bonding with the boys.  After M comes to Hong Kong, she has been perseverance in building the mother-son relationship, despite the poor response from the boys.  She treasures the opportunity in meeting the boys, and usually arrives for access in time”.

60. When told at the trial about the Grandfather’s suspicion of the Mother’s motive behind her custody application, Ms Tam maintained her favourable view of the Mother and stated that, from the many contacts she had had with the Mother the past 2 years, and from her observations of the Mother’s interactions with her sons during access, many of which were under difficult situation due to the children’s rejection of her, but that she would always handle them with patience and sensitivity, Ms Tam found it difficult to believe that the Mother was doing all these just for the compensation.

61. Having heard and seen the Mother in her evidence throughout the trial, I find her to be a sensitive and gentle but quietly determined person, and I must confess that I have the same difficulty as the Social Welfare Officer in believing that greed could be the Mother’s motive behind her present application.

62. It is one thing to say that she was concerned about the employees’ compensation which was afterall her right and entitlement as the widow and main dependent of her deceased husband, but to say that it was the reason behind her present application to get back her sons is too simplistic and speculative unsupported by any evidence capable of standing up to close scrutiny.

63. Since her arrival in Hong Kong, the Mother has been staying with her uncle’s family in a 2-storey village house in Tuen Mun, New Territories.  She supports herself by working as a cleaner in construction sites earning an average about $5,000 per month.  She has the full support of her uncle and his family in her application for custody of her sons who have offered their assistance in looking after the boys while she works, and if necessary she says she can always quit her job to become full time mother to her sons, although with them already in primary school, she does not think that they need her full time care.  Her uncle has also filed an affirmation as well as given evidence at the hearing in her support, claiming that his home has sufficient room and space for the 3 of them who are welcome to stay as long as they like.

64. In her 1^st Social Investigation Report, despite her difficulty in getting co-operation from the Grandfather for a comprehensive investigation, Ms Tam was nevertheless able to reach the following view about the Mother’s application : -

“

……  The children have lost their father, and thus the love, care and concern from their mother is very valuable to their development.  Ideally, it is the best for the children to get the love, care and concern from the parent as well as from extended family members.  Having difficulty to have both, it is preferable to get one with the less possibility to undermine the other.  M offers an appropriate and feasible childcare plan if she gets the custody of the children.  Considering the need for fostering the mother-child relationship since the children’s tender age, the investigating officer recommends that the custody of the children, CP and KF, be granted to their mother …… ”

65. What seems to have been undermining the mother-child relationship, according to Ms Tam’s report, is the Grandfather’s “negative comments on M in daily living in the presence of the children, which also happens when the investigating officer visits and interviews them” which have influenced the children’s perception on their mother.

66. In the same report Ms Tam gave the following description of her observation of the Grandfather : -

“

40.

The in-law relationship between H and M is poor.  When the investigating officer visits H, Ms L and the children, H grumbles on M, sometimes in the form of self-talk, while Ms L and the children watch VCD program on television.  H grumbles a lot on M about her desertion of the children, her agreement to let their custody granted to him in the pat in mainland, CP cannot return to mainland to study, financial difficulty after payment of employee compensation is stopped.  H also queries if M fights for the custody for financial reason.  The late HYC’s employees’ compensation case was based on some Chinese documents dated 6th September 1999, as presented by H.  However, M shows another Chinese Court document dated 6th January 2004, which states that those Chinese documents dated 6th September 1999 were wrongly issued.  Hence M appeals the employees’ compensation case.  H is angry that the monthly employee compensation is stopped in April”.

67. Ms Tam then went on to cite further instances of what she believes to be Grandfather and his family undermining mother-child relationship and influencing the children in her several progress reports on access.  The following examples from her report of 9^th August 2004 would be illuminating : -

“	11.	The in-law relationship between M and the paternal family remains poor.  H, Ms L and the paternal aunt grumble against M, sometimes in front of the undersigned with the children.  The undersigned has to remind them not to talk ill of M in front of the children.  Ms Ma reckons that they undermine her mother-son relationship.
		.
		.
		.
	16.	On 22nd May 2004, H and Ms L bring the children to office at 11:05 a.m.  CP enters the playroom.  M enters the playroom then.  KF enters the playroom after he finishes eating his cake.  The children play building blocks there, and briefly go out the playroom to drink water on their own.  M stays at the playroom with the children.  Ms L also checks the children outside the playroom, which distracts their activities inside the playroom.  Later the undersigned interviews H and Ms L at another interview room, and explains to them that they can leave after handover the children to M, and M would return the children to them at the front door of G / F of the paternal home.  However, H grumbles over access requirement, and proposes that each party gets a child. H and Ms L refuse to leave.
		.
		.
	20.	On 29th May 2004 access, H and Ms L bring the children to office at 11:45 a.m.  Upon the undersigned’s advice, Ms L beings the children to the family room for access with M.  M, Ms L and the children stay in the family room.  Then the undersigned interviews H at another interview room.  The undersigned reminds H to be punctual for access at 11 a.m., as well as explains the access between M and the children only, and M would return the children to him at G /F of the paternal home at 5 p.m.  However, H grumbles against M, and reiterates that each party gets a child.
		.
		.
	22.	At 1:10 p.m., H wants to leave, with the children and Ms L.  The undersigned explains to H to let the children access to M.  The children leave the family room as well.  Suddenly H goes into the family room and was hostile towards M.  The undersigned duly advises H leave the family room.  Then the undersigned interviews M at the family room.  M understands that the children want to leave, and she shares that CP refuses to interact with her.  Besides, CP threatens KF not to play with him if KF interacts with M.  Thus KF also does not interact with her.  M agrees to terminate the access if the children insist to leave.
		.
		.
		.
	25.	The undersigned goes to the lift lobby to invite Ms L and Ms H to return the office, while another social worker’s assistance is enlisted to accompany the children.  However, Ms L and Ms H refuse.  Besides, Ms L and Ms H grumble against M and the undersigned at the lift lobby in the presence of the children and other passers-by.  CP cries at the lift lobby.  The undersigned and another social worker try in vain to calm them.  M is informed of the situation, and she agrees to let the children leave with Ms L and Ms H.
	26.	The undersigned then informs Ms L and Ms H that the access ends, and they can leave with the children.  However, Ms L and Ms H do not leave and continue to grumble at the lift lobby in the presence of the children and other passers-by.  The undersigned and another social worker try in vain to calm them.  Then the undersigned and another social worker return to office.  Eventually, Ms L and Ms H leave with the children at 12:45 p.m.  M leaves later at 12:50 p.m.
		.
		.
		.
	On the other hand, the relationship between M and the paternal family remains poor.  The paternal family grumbles against M, while M reckons they undermine her mother-son relationship.  The paternal family blames M, and the general animosity of the paternal family towards M will be sensed even if not directly communicated to the children”.

68. Ms Tam’s views were in fact shared by Ms Wong, the second of the 2 clinical psychologists involved when she made the following observations about the grandparents in her report of 14^th June 2005 (A1: 119, 121): -

“

In the interview session with the grandparents, I attempted to solicit their cooperation in alleviating the pressure of the children by demonstrating their acceptance and developing some positive interaction with M.  However, they indicated their stance clearly that they were unable to do so given the feuds between them.  Although they knew that their denigration against M repeatedly in front of the children would impede the children’s progress of rebuilding relationship with their mother, they were unable to compromise on this regardless of the children’s welfare.  The grandfather was found to be very emotional every time when he touched upon the access arrangement.  He cursed Ms Tam, the social worker officers, for siding with M and attempted to snatch from him the children.  While the grandparents believed that they had done their best to persuade the children to see M, they did not admit that they had been empowering the children to vilify and reject their mother.  For instance, there were no consequences to the children for their denigration and disrespect of their mother.  And the grandparents would never teach the children to look at their mother from different perspectives, such as the positive side of the mother or the objective and empathetic way of seeing things”.

69. It is quite clear that these observations of the Social Welfare Officer and the clinical psychologist, which were not challenged at the trial, tend to support the view that the Grandfather and his family members have been undermining the mother-child relationship which has led to the boys’ rejection of their mother, as evidenced by the many unsuccessful access by the Mother.  The Grandfather however argues that the boys’ rejection, especially that of CP, was the natural consequence of the Mother’s abandonment of her sons and has nothing to do with him or his family.  He relies on the following allegations : -

(i)	that the Mother did not show much love or affection for the children, and very often lost her temper easily and channelled her anger towards them, and that on one occasion she even placed a chopper near the neck of CP and threatened him to stop crying;
(ii)	that she was so determined to abandon the children on that occasion in February 2001 that even though the 2 elder children were crying bitterly with CP clinging tightly to her and begging her not to leave, she just flung the children’s hands off her trousers and left them without ever visiting them again.

70. He argues that these incidents had caused so much trauma to the children that it is only natural that they reject their mother, which situation is further exacerbated by her lack of contact or access with them over the years which has led to the present poor mother-child relationship.

71. Although the Grandfather’s evidence over the chopper incident was corroborated by his wife at the trial, it is not clear when exactly did the incident occur, but even assuming that it was sometime shortly before the Mother left and not earlier, when CP would have been only slightly older than 2 years old, it is argued on behalf of the Mother, who denies the allegation, that even if the incident did occur, it is doubtful that it has any effect or impact on such a small child as CP, which doubt is also shared by both the Social Welfare Officer Ms Tam and the clinical psychologist Ms Tong, both of whom found it unusual for a child at this age to be able to remember such an incident but without any other details thereof.

72. They also suspect that CP might have in fact learnt about the alleged incident from other sources as there were serious inaccuracies in the other matters raised by CP, such as he told Ms Tam in her 1^st report (A1 : 17, 24) that he saw his mother stealing money from his grandfather’s wallet at home when he was 4 years old, when in fact his mother already left when he was only 2 1/2 years old, or his recollection of his father buying him snacks and toys when he was 4 years old, when in fact his father died when he was only 7 months old, or when he blamed his mother for causing his father’s death, which is of course absolutely incorrect.

73. Many of CP’s other accusations against his mother also appear to have been learnt from adults as they could not have come from his personal knowledge, such as his accusations to the Official Solicitor of the Social Welfare Officer siding with the Mother and that his mother just wanted to get his father’s compensation (A1 : 46, 55), that people from the Legal Aid Department forced him to live with his mother, as told to the clinical psychologist (A1 : 78, 79), or that his father’s death was caused by his mother who also stopped him from leaving Hong Kong so that he could not return to China to be with his elder brother, as told to Ms Tong in her psychological report (A1 : 78, 79).

74. Furthermore, if indeed not only did the chopper incident actually occur, but it did also traumatise CP as alleged by the Grandfather to such extent that, years later, it still causes him to reject his mother, why then would he be clinging to her on that occasion in February 2001, crying and begging her not to leave him?  There is simply no valid explanation either from the Grandfather or the clinical psychologist, and the logical conclusion that one may draw in the circumstances, is either that the chopper incident never occurred and was only fabricated by the Grandparents, or that it did occur but had not traumatised CP at all or so much as to cause him to reject his mother.

75. There is however no question that the Mother did leave her sons in February 2001, whether by a traumatic act of abandonment as alleged by the Grandfather, or otherwise, it would have affected the children one way or the other, especially CP who should be old enough to realise that their mother had left and was no longer living with them.  This however does not necessarily cause CP to so reject the Mother in the manner as detailed in the various reports, according to the Social Welfare Officer and the 2 clinical psychologists, unless there were other contributing factors, such as the loyalty conflict that he has for his grandparents, and, more significantly, their influence on him by their animosity and resentment towards his mother thereby undermining his relationship with her.

76. Perhaps the most telling evidence in support of this arguments, in my view, is to be found in the photographs taken by the Mother’s uncle during her 1^st access to the boys since these proceedings in which both appeared happily and intimately with their mother (B1 : 368).  These photos may not be worth a thousand words, but when shown to the Social Welfare Officer Ms Tam and the clinical psychologist Ms Wong at the trial, both agreed that they showed a totally different behaviour by CP to his mother from those they have since come to know and observe.  In fact, Ms Tam described what she saw from the photographs in her report of 9^th August 2004 (A1 : 39) as follows : “There are smiles on the children’s faces, which suggest that they have happy moments during the access”.  By all accounts, CP did not appear in the photographs to have been so affected by the incidents alleged by the Grandfather, which begs the question :  Why did CP subsequently change his attitude and behaviour towards his mother, and in such drastic and hostile manner ?  The logical conclusion, as observed by both the Social Welfare Officer and the clinical psychologists, must be because he has been influenced by the Grandfather and his family.

77. I have no doubt, from the evidence before me, of the resentment and animosity of the Grandfather and his family towards the Mother.  She says it was because he has always looked down on her and her family and was in fact against her marrying his son.  I believe it has more to do with his conviction that she did abandon her sons and is now after their compensation.

78. However, it still does not explain why his resistance to the Mother’s application would be so bitter and strenuous.  In other cases of similar circumstances, I am sure most grandparents would have been glad to return the children to their parents, with words to the following effects :  “Take your children back, we are through taking care of them for you, it is time that you resume your parental responsibility!”  Not so in this case, and I think the real reason can be found in the Grandfather’s answer to exactly the same question put to him at the trial when he replied : “She (the Mother) dumped her sons on us as she pleased, we have since raised them well, now she wants them back, if I give them to her, I would lose face!”.  This, I believe, must be one of his main reasons for refusing to return the children to the Mother.

79. It is however argued on behalf of the Grandfather that regardless of his reasons or motive for opposing the Mother’s application, the facts that the boys have formed a close relationship with the Grandfather and his family, that they have received satisfactory care from them, that they are happy and healthy with good performance at school, all of which have been confirmed by the various social investigation reports and corroborated by the affirmation of a school teacher and a letter from the headmistress, and that as both grandparents are still healthy and capable of continue to take care of the boys who have settled well in their present living environment, the Court should not lightly interfere with such satisfactory arrangement.  In other words, their status quo should not be disturbed.

80. There is no question that status quo, which entails the continuity of existing relationships, emotional ties and bonds, as well as continuity of environment, is an important factor in considering as what is in the best interest and welfare of a child, and the disruption of it resulting in the separation of that child from his primary carer may be highly detrimental to his mental and physical well-being.

81. In D v M (minor : custody appeal) (1982) 3 All ER 897, CA, Ormrod LJ said this on 903 : -

“	It is generally accepted by those who are professional concerned with children that particularly in the early years, continuity of care is a most important part of a child’s sense of security and that disruption of established bonds are to be avoided whenever it is possible to do so”.

82. The Grandfather also relies on the case of Re H (a minor : custody) (1990) FLR 51 CA where the parties were married in India with the father English and the mother Indian.  They lived in England and had a son.  The marriage was unhappy and in 1984 on a visit to India, the mother refused to return to England and remained in India with the son.  In 1986 the son returned to England with his father and was placed in the care of his paternal uncle and his family while the father worked.  In 1987 the mother came to England to see her son and started divorce proceedings.  The paternal uncle and aunt sought care and control.  Although the judge found that the mother was a warm and loving person and had much love to offer her son, he also found that the boy in his present background had changed from a shy, difficult and backward boy into a normal school boy, and concluded that it was in the boy’s best interest to remain where he was for the foreseeable future with access to the mother.  In dismissing the mother’s appeal, the Court of Appeal held that in custody cases relating to young children, although it was well recognised as a matter of human nature that the natural mother would usually be the right person to have the care and control of a young child, it is however not a principle of law, and given the unusual circumstances of the case, where the child had been subjected, almost from birth, to a series of changes in his home background and since the judge had conducted the balancing act meticulously, there were no grounds for holding that the judge, in reaching this conclusion, had been plainly wrong.

83. In another case relied on by the Grandfather, Re A (an infant) (1959) CLY 950, (1959) Times, 25 March, CA, where an uncle and aunt in Corsica had obtained custody of the child in question under a French court order.  Upon their application in the English Court which was supported by the father, the mother was ordered to return the child from England to them.  Upon appeal, the Court of Appeal in affirming the decision of the lower court, held that it was not a case where the rule of supremacy of the mother’s claims could apply.

84. Similarly, in the leading case of J v C [1969] 1 All ER 788 where a Spanish boy was sent to live with his English foster parents whilst his natural parents tried to establish themselves economically.  During the first ten years of the boy’s life, he only spent 18 months with his parents, and the rest of the time with his foster parents, being brought up as an English boy.  When his parents claimed for his return to live with them in Spain, the House of Lords held that there was no presumption that the welfare of a minor was best served by allowing him to live with his parents, as he hardly knew them and spoke little Spanish.  He was well-settled in England, and the parents were ill-equipped to cope with the child’s problems in adjusting to a new way of life.  The parents’ interest in having the boy returned were outweighed by the child’s welfare so it was held that care and control should remain with the foster parents.

85. It is clear from these decisions that the notion of the welfare of the child being the first and paramount consideration requires the Court to focus on the child’s welfare independent of parental rights and wishes, and there is a strong argument in favour of the maintenance of the status quo against a parent who has lost contact with a child, or who has never established a bond with the child.

86. It is however worth noting, in my view, that the facts of this case can be distinguished from those referred to in that the parties and the children involved all live in the same country here, are of the same culture and speak the same language, hence the impact of any disturbances to status quo should not be the same as it was otherwise feared in those cases.

87. This status quo argument, however, is only useful where existing arrangements are satisfactory, as Ormrod LJ said in S v W (1980) 11 Fam Law 81, CA : -

“	the status quo argument depends for its strength wholly and entirely on whether the status quo is satisfactory or not.  The more satisfactory the status quo, the stronger the argument for not interfering.  The less satisfactory the status quo, the less one requires before deciding to change”.

88. So is the status quo of the 2 boys satisfactory?  As far as the physical side is concerned, the Social Welfare Officer Ms Tam seems to think it is adequate, as she said this in her 2^nd report of 9^th August 2004 : -

“

The children receive satisfactory childcare under the care of H and Ms L.  In addition, childcare on KF improves, as reflected by the kindergarten teacher.  The relationship between the children and the paternal family is also good.  Besides, the children show good sibling bonding, and thus it is more desirable to let them grow up together”.

89. The above observations were maintained in all her subsequent progress reports, but Ms Tam is clearly not happy about the boys’ emotional development as she believes that mother-child relationship, which she thinks is very valuable to their development, has been seriously undermined by the Grandfather and his family.  She gave the following reasons for her support of the Mother in her 1^st report of 14^th May 2004 : -

“

The children have lost their father, and thus the love, care and concern from their mother is very valuable to their development.  Ideally, it is the best for the children to get the love, care and concern from the parent as well as from extended family members.  Having difficulty to have both, it is preferable to get one with the less possibility to undermine the other.  M offers and appropriate and feasible childcare plan if she gets the custody of the children.  Considering the need for fostering the mother-child relationship since the children’s tender age, the investigating officer recommends that the custody of the children, CP and KF be granted to their mother M”.

90. In all her reports Ms Tam has stressed that with the children having already lost their father, the love, care and concern of their mother have become very important and valuable to their development, in particularly in their “long term interests”.

91. This need of the boys to develop their emotional bonding with their mother is shared by the clinical psychologist Ms Tong who found that there is a lack of a stable attendant figure to the boys in the long run in the Grandfather’s childcare plan, which she described in her psychological report of 4^th January 2005 (A1 : 78, 80) as follows : -

“	Throughout assessment process, it was pretty hard to solicit H’s cooperation and obtained his view towards child’s welfare due to his mistrusts towards professionals.  Hence, appointments had been further postponed.  With some effort to avoid miscommunication and clarification of the assessment purpose, he became relatively more approachable.  H considered himself the better custodial parent-of-choice because he believed M did not genuinely love the children and abandoned them in the first place.  He expressed that despite all the troubles in taking care of CP and KF, such as lost of personal freedom and difficulties in handling them who were argumentative, he wanted to take care of them personally.  He opined that, with an extended family, CP and KF would be taken care of by their uncles and aunts if he and his wife were too old to take care of them in future.  Towards the childcare plan, he had no specific view.  Allegedly, he would agree CP to continue his education in China if the boy so wished.
	.
	.
	.
	In short, in terms of providing physical care, I did not see any factor that might make either H or M’s childcare plan not work.  However, in terms of child’s emotional need for bonding with a stable attachment figure, H’s tentative “plan” of letting CP to return to and received education in China and was more likely to lead to adjustment difficulties in the boy again, taking into account the major life changes he had experienced in the past years, the disruption in his sibling relationship with KF, and the lack of a stable attachment figure in the long run”.

92. The Social Investigation Reports also reveal that the Grandfather’s original childcare plan might not have been altogether satisfactory in the first place.  He complained to Ms Tam in her 1^st report (A1 : 23) that CP was not allowed to leave Hong Kong because of these proceedings, and in her 2^nd report (A1 : 37) he wanted CP to continue his studies in China, while KF would still require assistance from the grandmother for bathing and cleansing after toileting, which means that he had intended for the 2 boys to live apart from each other, which raises the question of who was supposed to look after CP on his return to China, as the grandmother would be required to care for KF in Hong Kong ?

93. Although it appears from the Grandfather’s evidence at the hearing that it is no longer his plan to return CP to China, and hence both boys will continue to live and grow together in Hong Kong, both Ms Tam and Ms Tong are convinced that it would be in their best interest in the long run to develop their emotional bonding and relationship with their mother, their only surviving parent, and that they would not be able to do so as long as they are under the care of their grandfather, who has clearly shown not only great resentment and animosity towards the Mother in the presence of the boys and thereby adversely influencing their behaviour towards their mother, but also a total lack of insight and understanding of the boys’ needs to develop and maintain their relationship with their mother through regular contact and access which has so far been disastrous, as Ms Tong summed up the Grandfather’s attitude on access in her report as follows : -

“

H also claimed that he did not object the children see M, as long as the children went for the access voluntarily.  Upon probed, he admitted that he did not see the benefit for the children to see their mother who was irresponsible.  He agreed that the children were under great pressure, yet he saw nothing he could do to alleviate their stress except reducing the access frequency”.

94. I wholly endorse these observations of Ms Tam and Ms Tong and share their grave reservation about the Grandfather’s ability to help the children to develop their emotional and psychological growth in the long run.  There is no question that the grandparents have, so far, provided adequate care for the 2 boys, but children do not just need physical care, especially when they grow older and require less care on the physical side, when emotional care, parental guidance and discipline take over as more important and essential part of their growth and development, and it is in these important areas that the boys will unlikely receive if they are to remain under the care of their grandparents, who have selfishly and irresponsibly allowed their personal feud with their former daughter-in-law to involve the children, to the extent that they have, directly or indirectly, intentionally or otherwise, influenced them to say and do things that one would not allow to a stranger, let alone to their own mother.

95. If it is true that the boys have acted on their own without any influence from the Grandfather, and I have already rejected that possibility, then it amply demonstrates the Grandfather’s total failure to properly control and discipline them by allowing such behaviours, especially those of CP, to persist for almost 2 years since their first meeting with their mother in Hong Kong, despite the many concerns raised to them by the Social Welfare Officer and the clinical psychologists.

96. If on the other hand, such behaviours of the boys were indeed engineered by the Grandfather against their mother, as suspected by all those involved in this case who have adopted a neutral stance, then the Grandfather is clearly guilty of even greater failure in his responsibility towards his grandsons, as well as his total lack of insight and understanding of their needs, in which case one cannot be criticised for being too pessimistic about the boys’ future welfare if they were to remain under his care and custody.

97. It is true that, having left her sons in 2001 and has not played any important parental role over them the past several years, and in view of the children’s present attitude towards her, the Mother will no doubt be facing an unenviable task of trying to re-establish her relationship with the boys in particularly CP if her application is allowed, but with her resolve and determination, as amply demonstrated in her evidence in Court and readily observed by the Social Welfare Officer and the clinical psychologists, and with her better understanding of the children’s future needs, I have no doubt that she will be able to provide a better future for her sons than the Grandfather, which is also why the Social Welfare Officer has recommended in all her reports that it would be in the best interest of the children in the long run for their custody care and control be given to the Mother.

98. I am of course mindful of the view of the Court of Appeal in WSM v FSY (a minor : custody appeal) CACV No. 325 of 2004 when Cheung JA commented about recommendations made in social welfare reports as follows : -

“

We will further add that a social welfare report is not a special category of material information, nor should the recommendation assume a status somewhat akin to a legal presumption which needs to be rebutted.  Ultimately the decision making lies with the judge based on the available evidence and guided by the relevant principles”.

99. The Social Welfare Officer Ms Tam has been involved in this case for almost 2 years by now, having submitted a total of 5 investigation and progress reports, and is probably more familiar with the parties and the children as well as their situation than any other persons involved in the case.  Although there have been some criticisms from those representing the Grandfather about her reports, such as her seemingly hasty recommendation in favour of the Mother in her 1^st report despite her difficulty in conducting comprehensive investigation and was not certain of the mother-son relationship, or her attempt to ascertain the children’s view despite admitting that they were too young to do so, none of them are so seriously flawed as to undermine the accuracy of her other findings and observations as recorded in her various reports, which were not seriously challenged or disputed by the Grandfather at the trial in any event.

100. There appears however a stronger argument against the other recommendation of the Social Welfare Officer by the Grandfather, which is also shared by the Mother but for a different reason, and has in fact turned out to be the most difficult issue for my decision : to remove the boys to a neutral environment such as a residential care run by the Social Welfare Department to facilitate the building of mother-son relationship before eventually to the custody care and control of the Mother.

101. The reasons behind this suggestion are set out in Ms Tam’s report of 3^rd January 2005 (A1 : 76 – 77), mainly because it is felt that the boys should be removed from the grandparents’ influence in order to facilitate mother-son relationship, but in view of the boys’ present poor relationship with their mother, it would be better to first place them in a neutral environment where they can also receive counselling and psychological treatment before going to the Mother.

102. This suggestion was in fact first raised by the clinical psychologist Ms Tong in her report of 4^th January 2005 (A1 : 81) where she considered the various options for the boys’ future arrangements which I find useful to set out hereinbelow : -

“	To sum up, while both H and M refrained from verbally admitting that they could not communicate or cooperate with each other.  However, their relationship was so damaged that it was highly unlikely they put aside personal feud and cooperated with each other for children’s sake in the foreseeable future.
	3.	In custodial case, the degree of cooperation between the warring adults is one of the crucial factors in considering what welfare plan is in the child’s best interest.  It is important that the child could continue to have physical and emotional access to carers with whom he / she has the need to keep the emotional tie.  Sole custody has to be considered in high-conflict custodial case and that carers could not cooperate with each other.  The most outstanding feature of this case is firstly, CP’s emotional disturbance and secondly, the uncompromising attitude of the paternal grandfather.  This assessment showed that KF needs the emotional tie with his mother and that M had also demonstrated that she was able to handle him.  With CP, he was currently expressing immense anger towards early separation with his mother and at the same time experiencing adjustment problems in living in Hong Kong.  While it is hard to tell whether M’s few contact with CP and KF in the past years was deliberate abandonment or merely environmentally driven, she was at least so focused on other things such as husband’s death and in-law relationships that she had not made herself connected or bonded with his sons.  Taking all the above into account, I have the following opinions :
	a)	Continuing the existing pattern of access between mother and children would be futile in maintaining the mother-son relationships because the children, not necessarily by adult coaching, were already drawn into the custodial battle;
	b)	The current access mode of seeing M and the two children together at the same time be stopped as the two children’s needs differed so greatly that CP’s negative reaction would be counter-conducive to KF’s relating to his mother;
	c)	KF’s custody be granted to his mother.  As shown in the joint session, KF should have little difficulty in relating to his mother;
	d)	CP’s custody be granted to M.  As an interim measure, CP be placed in a neutral environment such as small group home so that he could be freed from adults’ conflicts and received help to handle his emotional disturbance.  In this regard, psychological follow-up could be arranged for him and M;
	e)	To maintain children’s ties with their grandparents, regular supervised access by social work officer be arranged between CP and KF and the grandparents separately;
	f)	Children should have their legal representation.  Their transition from grandparents to mother should be anticipated with emotional outbursts and protects.  To mitigate grandparents’ emotional reactions and ensure smoother transition, the process would better be supervised by children’s legal representation and social worker.
	g)	CP’s progress be reviewed in 6 – 9 months time.
	I believed the aforementioned arrangements would have the greatest chance to minimize the negative impacts on the children while at the same time preserve their emotional ties with both significant carers in the long run”.

103. As pointed out earlier in this judgment, although both Ms Tam and Ms Tong are in agreement that a neutral environment would be appropriate to neutralise the grandparents’ influence and for psychological treatment, they differ in one important aspect :  while it is Ms Tam’s suggestion that it is for both of the boys, Ms Tong believes that it is necessary for CP only, as she found that KF has mainly been copying his elder brother’s behaviour towards the Mother and if left by himself he should have little difficulty relating to his mother.

104. While agreeing with Ms Tong’s assessment of KF, Ms Tam reasons that as the boys have very close bonding with each other, they would not have to be separated if they go to the neutral environment together where they can keep company and lend support to each other.

105. Whether it is for both boys or just CP, this recommendation is, as pointed out at the outset of my judgment, not agreeable to both the Mother and the Grandfather, but is, surprisingly, supported by the Official Solicitor.

106. The Mother’s argument is that it is a drastic step which must be exercised with the utmost caution as it runs the risk of causing future psychological and emotional disturbance to the children which cannot be ignored nor under-estimated, and that if only CP is to be removed, in view of his strong bonding with KF who obviously needs the support of his elder brother, it will be even more disastrous to CP and may even deepen his rejection of his mother.  She suggests that both children should simply be placed in her care and custody with full support and assistance from the Social Welfare Officer.

107. The Grandfather shares the same concern over the adverse impacts on the children if they were to be removed to a neutral environment, albeit for a different reason, as he believes that as long as the children remain in his care, especially with CP who is a cheerful and healthy boy with good academic performance and enjoys good relationship with teachers and peers, that his present emotional disturbances are due to the ongoing custody dispute and that once the proceedings are over, he will resume to his normal life under the care of his grandparents.

108. I must confess that I share the parties’ concern and reservations about those risks to which the boys may be exposed to, although the Social Welfare Officer and in particularly the clinical psychologist have provided some equally valid reasons for their suggestion which was in fact, according to the clinical psychologist, actually adopted by the High Court in a wardship matter of similar facts under HCMP 6221 of 1999.

109. Due to the nature of the matter, that case has not been reported, but with the kind permission of Deputy High Court Judge Gill, the wardship judge in that matter, the parties have been allowed to refer to his judgment which was made on 11^th August 2000 after a 5 days hearing.

110. In that case the parents of the ward, a 7 years old girl at the time of the judgment, placed her in the care of a friend as a childminder when she was only 15 months old while they were busy making their living.  In 1997 when the girl was due to start kindergarten, her parents made a tentative approach to retrieve her so she could be enrolled in a kindergarten near where they lived, but when the childminder was opposed to this course, the parents decided to leave the girl where she was.  In 1999 when the parents again tried to enrol their daughter into a different kindergarten, there was a confrontation with the childminder who refused to hand over the girl.  When the parents went to the Social Welfare Department for assistance, they discovered that the childminder had in fact back in 1997 falsely reported to the Department that the girl had been abandoned by her parents, and on the application of the Director of Social Welfare, the girl was then placed under the guardianship of the Director by the Juvenile Court of the Magistracy and under the care of the childminder in June 1997.

111. Upon learning of the competing interests between the parents and the childminder over the girl, the Juvenile Court invited the Official Solicitor to represent the girl and made orders the culmination of which was the Director of Social Welfare’s application on 8^th October 1999 for wardship in the High Court.  The resultant Social Investigation Report and clinical psychological reports, the latter happened to be also prepared by the same Ms Tong in this case, revealed that the parents’ interim access and contact with the girl had been discouraging as the girl had displayed a marked antagonism towards them, being rude and making derogatory remarks to them, and refusing to contemplate leaving the childminder.  She was found by Ms Tong to be acting out a parent alienation syndrome, and that at her such young age her accusations of her parents of having abandoned her would only have come from the childminder.  Ms Tong therefore recommended that the girl be removed from the childminder’s care and the direct exposure to her hostility, and be placed in a neutral environment from which attempts to improve the parent-child relationship could be renewed.  This recommendation was supported by the Director, the parents and the Official Solicitor except the childminder, so the matter was urgently brought before the wardship judge for a decision on the recommendation.

112. After referring to the various authorities including those cited in this judgment such as J v C, Re K and Re KD, and on the principles enunciated therein, Deputy High Court Judge Gill gave the following reasons for his decision in favour of the clinical psychologist’s recommendation : -

“	This principle (of the supposition that other things being equal, that it is in the interests of the child to be brought up by his natural parents) may be harder to displace in Hong Kong than many other countries which share the same “first and paramount consideration”, embodied in sec. 3 (1) GMO.  This is because it is perhaps more common here than elsewhere for parents to place their children with others for significant periods of their dependent lives, usually for economic reasons.  The placement should not, all things being equal, put at risk the right of the parents to restore the family unit when the time is right to do so.
	But the presumption, if there be one, must be displaced where recognition of the overriding principle does not support an order in favour of the natural parents.
	Returning to the facts before me, there is much to favour (the Childminder)’s case that (the Ward) should stay where she is; to preserve the status quo.  I have no doubt that she has a profound loyalty to the cause of (the Ward)’s wellbeing.  She is well settled in (the Childminder)’s house.  She is well loved by the Childminder and those of the family still living at home.  She is doing well at school and the extra-curricular activities of piano and dancing.  If (the Childminder) has behaved unsatisfactory in the past and might have been selective with the truth in these proceedings, it is because she sees herself as (the Ward)’s salvation; the only person who truly cares for (the Ward), the only person who (the Ward) truly loves, the only person who properly provides for her.  Without question there is love, mutual love between them, and (the Childminder) harbours a sincere wish to do the very best for (the Ward).
	But there are disquieting features.  Given the findings of the psychologist after many hours of observing the interactions of the parties during access it is quite apparent that (the Ward)’s negative attitude and conduct towards her parents is enhanced by what she had learnt from (the Ward).  (The Childminder) was quite ready to admit from the witness box that she had told (the Ward) from an early age that she had been abandoned by her parents; surely the most heart-rending words for young ears to hear.  And in evidence she repeatedly said that (the Ward)’s greatest concern is that she will be sold off if she is returned to her parents.  Far from putting that notion to rest, I have the firm view that she has fostered the belief, keeping alive and to the forefront the young girl’s fears.  Miss Tong’s tests reveal problems and difficulties that significantly adversely affect her child caring capabilities.  Miss Tong believes that if (the Ward) continues to live in her household her mental health will likely suffer.
	These are important factors which weight against preservation of the status quo, though superficially that course has appeal.
	I turn to consider the position of the parents.  Unhappily, Miss Tong’s observations and test results show that (the parents) are seriously deficient in parenting skills.  (The father) in particular has a low flash point, loses his temper quickly and is capable of rounding on his daughter.  The two of them frequently quarrel.  I suppose given the continuing difficulties and frustrations this is not surprising.  But it hardly promotes a loving and intimate family circle for (the Ward)’s return.
	What is encouraging, however, is that they are persevering with their attempts to establish a parental relationship with (the Ward).  No doubt because of Miss Tong’s counselling they, in particular (the mother), have begun to demonstrate patience and tolerance and a real endurance in the fact of a frustrating lack of progress.  Even (the father) is learning to control his temper and tongue.  The essential difference between the two sets of parties warring for the right to look after (the Ward) essentially boils down to this – both have serious shortcomings, but (the childminder) has no insight whilst the parents do ……
	…… It is yet too early to say where, long term (the Ward)’s best interests lie.  The last seven months, though damaging, have provided valuable data.  It is quite apparent to me that the next step must be for (the Ward) to be placed as soon as possible in the neutral environment of a small group home, run and administered by SWD.  Mr Chiu reports there is an available place in a suitable one coming up on 1st September and that is being held open pending my decision.  (The Ward), for the meantime, shall go to live there.  Undoubtedly she will be distressed about this and that concerns me.  But it is most necessary to remove her forthwith from a household where hostility towards her parents is so actively promoted.  Of course there must be regular access by both parents and (the childminder).  But that must be supervised and monitored to ensure (the Ward) does not come under negative influences ……”

113. It is clear that the reasons behind the recommendations of the clinical psychologist in that case are essentially the same as the ones given here.  But the similarities between the 2 cases also end there.  That was a wardship matter and the wardship judge in dealing with the welfare of his ward has unfettered power to do what he thinks is necessary or appropriate for the ward, including implementing those recommendations of the Social Welfare Officer and the clinical psychologist.  It was also a case where the Director of Social Welfare had already been given the guardianship of the ward, and accordingly also had the right to place the ward in a neutral environment if it were deemed necessary or appropriate for her welfare.

114. Although the application before me was issued under the same s. 10 of the Guardianship of Minor Ordinance, as in that wardship matter, the Director of Social Welfare is not a party, nor has he been granted the guardianship of the 2 boys.  It does not of course mean that I cannot make the same kind of order to remove the boys to a neutral environment, the power for which is however governed by s. 13 (1) of the Cap. 13 Ordinance which provides that : -

“	(1)	Where an application made under section 10 relates to the custody of a minor, then subject to sections 14 and 15–
		(a)	if by an order made on that application any person is given the custody of the minor, but it appears to the court that there are exceptional circumstances making it desirable that the minor should be under the supervision of an independent person, the court may order that the minor shall be under the supervision of the Director of Social Welfare;
		(b)	if it appears to the court that there are exceptional circumstances making it impracticable or undesirable for the minor to be entrusted to either of the parents or to any other individual, the court may commit the care of the minor to the Director of Social Welfare”.

115. It therefore appears that I have to be satisfied that there are exceptional circumstances making it impractical or undesirable for the 2 boys to be entrusted to either the Mother or the Grandfather, in which case I may then commit their care to the Director of Social Welfare so that the boys can be placed in a neutral environment run by the Director, no doubt at all time while making the decision, to bear in mind of the s. 3 principle of the children’s welfare.

116. I do not deny for a second that exceptional circumstances do exist in this case, all of which I have already referred to before.  But are they making it impractical or undesirable for the boys to be entrusted to the Mother?  She certainly does not think so, as she is convinced that once they are removed from their grandparents’ influence, she should be able to handle whatever problems she may have with Chi Ping.

117. As I have already indicated earlier, I totally agree with the Social Welfare Officer and the clinical psychologist that the boys should be removed from the grandparents’ influence to enable them to rebuild their relationship with their mother, but I have some serious reservation over the practicability and desirability of placing them, or at least CP, in a neutral environment at this stage.

118. Firstly, according to the Social Welfare Officer, it will take time, perhaps even months, to find a place in a suitable small group home for CP.  If it is for both boys, it may take even longer since openings have always been limited, very often available only after a child has left, unlike in that wardship case when a place was then already available.  The Officer has one in mind in the Causeway Bay area which may take a shorter waiting time, but it is by no means guaranteed.

119. Secondly, according to the clinical psychologist, CP may have to stay in the small group home for at least 6 to 9 months, may be more, depending on the progress of his situation, which means not only that he will have to adjust to a totally new environment in the small group home, but he will also have to change to a new school in the same neighbourhood .  Even assuming that a place can be found for him in the new school at this time of the year, when most schools are in the middle of the 2^nd term and for some, in the last month or two before the school term examination, one cannot help but be very concerned about all these changes will have on his emotions as well as his school performance, without even taking into account of the inevitable adjustment that he will have to go through after leaving the small group home into the Mother’s care.

120. Thirdly, there is also the likely adverse impact on KF whether or not he is to join CP in the small group.  As Ms Tong has rightly pointed out, KF is a lot more easily and readily receptive to the Mother, it is therefore not necessary to place him in an neutral environment, hence all these possible adverse impacts that may come with such a move will certainly outweigh, in my judgment, any possible benefits that may have by putting both boys together for companionship and support to each other, as proposed by the Social Welfare Officer.

121. Lastly, in that wardship matter, although the inclination of all concerned in there was to eventually return the ward to her parents, due to some serious deficiencies in their parenting skills, the court was then unable to decide on the final question of the ward’s custody, but for the reasons given there it was necessary to place her in the neutral environment as soon as possible.  Here I am satisfied that the boys’ best interests lie with their mother, and that they should be returned to her care as soon as possible without first going to the neutral environment for the reasons aforesaid, and also because I believe that the Mother, with the assistance and support of her uncle and his family, as well as the Social Welfare Officer and clinical psychologists, should be capable of handling CP’s initial reaction and rejection.  If it then becomes apparent that I should reconsider the recommendation of placing one or both boys in a neutral environment, no doubt the Mother and / or the Director can and will urgently bring the matter back before me.

122. To ensure that the Mother will receive the necessary assistance, if necessary, from the Social Welfare Officer, in particularly as to the arrangement in removing the boys from their grandparents into her care, and also to provide any necessary counselling and / or treatment for the children to help them to rebuild their relationship with their mother, I also make the s. 13 (1) (a) order that both boys shall be under the supervision of the Director of Social Welfare for at least 12 months, with extension if necessary, with directions that both progress reports and clinical psychological report on them be submitted in 6 months.

123. The Grandfather and his family should of course have reasonable access to the boys, but as suggested by both the Social Welfare Officer and the clinical psychologists, such access should in the meantime be arranged and supervised by the Social Welfare Officer until further order.

124. Upon the removal of the boys into their mother’s care, the current monthly payments of the boys’ share of the employee compensation payable to the Grandfather should of course be revised, but it is a matter for those advising the Mother to bring to the court which originally dealt with the compensation.

125. As both parties are legally aided, it will not be necessary to deal with the issue of costs save that their own is to be taxed on Legal Aid Regulation.  Lastly, I must not conclude without expressing my gratitude to Ms Cheung of the Official Solicitor, Ms Tam, Ms Tong and Ms Wong of the Social Welfare Department, as well as Ms Wong and Ms Chan for the respective parties for all their help given in what has been a very difficult case.

126. My orders are therefore as follows : -

1.	Custody care and control of both children to the Applicant.
2.	Both children are to be placed under the supervision of the Director of Social Welfare for 12 months, with liberty to apply for further extension.
3.	The Respondent is to hand over the children to the Applicant as soon as practicable through and with the assistance of the Director of Social Welfare.
4.	The Respondent is to have reasonable access to the children to be supervised by the Director of Social Welfare.
5.	There be progress report by both the Director of Social Welfare and clinical psychologist in 6 months.
6.	No order as to costs including all costs reserved.  The Parties’ own costs is to be taxed on Legal Aid Regulations.