MJCK v. LGLC

FCMC 14170/2023

[2024] HKFC 154

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 14170 OF 2023

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D E C I S I O N

( Schooling )

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Introduction

1.  This application involves the issue of which pre-nursery school the child of the family, a boy now aged 2 years and 7 months old (“the Child”), shall attend for his upcoming pre-nursery school year of 2024/2025.

2.  Parties were married in 2019 and separated in late 2023.

3.  The petitioner (“F”) is aged 45 and claims to be self-employed.

4.  The respondent (“M”) is aged 41 and is an assistant professor at the University of Hong Kong with teaching days falling on Thursdays and Fridays.

5.  Prior to separation, parties resided at the property located at Bel-Air Residence, Pokfulam, Hong Kong registered under F’s name (“F’s home”).

6.  M now lives with her parents and the Child at the property in Ma On Shan, New Territories, Hong Kong (“M’s home”). The property was registered in the joint name of M and M’s father.

7.  The current interim care and access arrangements are as follows:

i.  M’s care: 6pm on Saturday to 10am on Thursday;

ii.  F’s care: 10am on Thursday to 6pm on Saturday.

8.  Under the current arrangements if the Child attends school in the morning, he will go to school from M’s home 4 times and back to M’s home from school 3 times a week on Monday to Thursday, totaling 7 times between school and M’s home. The Child will go to F’s home from school 2 times a week on Thursday and Friday, and to school from F’s home 1 time a week on Friday, totaling 3 times between school and F’s home.

9.  Besides, Mediator assisted CDR is fixed on 21 October 2024 whilst trial of the Children Proceedings is fixed on 9 December 2024 with 4 days reserved.

Parties’ proposal

10.  F proposes 3 pre-nursey schools for the Child in order of preference as follows:

i.  International Montessori School, Sheung Wan (“IMS”);

ii.  Guidepost Montessori, Pokfulam (“Guidepost”); and

iii.  Mighty Oaks International School, Kennedy Town (“Mighty Oaks”).

11.  M also proposes 3 pre-nursey schools in order of preference as follows:

i.  Yew Chung International School, Kowloon Tong (“YCIS”);

ii.  Box Hill (HK) International Kindergarten and Pre-school, Ma On Shan (“Box Hill”); and

iii.  Victoria Educational Organisation (Harbour Green Campus), Tai Kok Tsui (“Victoria Harbour Green”).

The relevant legal principles

12.  The general principles governing children’s matters are set out in section 3 of the Guardianship of Minors Ordinance (Cap. 13) and the paramount consideration is the welfare of the Child.

13.  In terms of schooling decisions, there is no exhaustive list as to the factors that have to be considered by the Court. Each case, and weight of each factor, will be determined on its own facts on a case by case basis[1]. Nevertheless, past authorities have revealed some factors that have been considered in particular case or cases. For example:-

(1)  Importance of stability in schooling (see CCMJ v SSM fka SKL, unrep. (FCMP 67 of 2010) (Deputy Judge Own (as he then was); 30 August 2013);

(2)  Language of schooling (see: MT v. HYC [2020] HKFC 55);

(3)  Convenience of commute/transportation (see: STY v. LMSC [2018] HKFC 170);

(4)  Background of the family (see: A v B, unrep. (FCMC 9824 of 2015) (Judge Melloy; 22 August 2016);

(5)  Special consideration for primary caregiver’s views (see: W v F , unrep. (FCMC 809 of 2004) (late Judge Carlson; 21 June 2004) and STY v. LMSC, supra).

14.  Some of the above factors will be discussed further below if I consider relevant in the present case.

Discussion

15.  To start with, I must repeat that the schooling issue for the children of the family really should be a decision that the parents make on their own after sensible discussion between themselves rather then left to any third party.

16.  Unfortunately, the parties cannot come to any consensus despite mediations. Since neither party are willing to compromise and agree on such an important decision for the Child, the Court will need to do so even if it is done so unwittingly. Instead of commenting which school is better, I will have to do a balancing exercise and consider which school would best suit the Child and his needs both in the short term and long term.

Convenience of commute/transportation

17.  For a young child going to study in the pre-nursery school instead of secondary school, I do consider that the location of the pre-nursery school is not just relevant but the court shall put much more weight on this factor.

18.  The 3 schools proposed by F are all far from M’s home but close to F’s home. Box Hill is very close to M’s home but a bit far from F’s home. Besides, it only has afternoon classes from 1:15pm to 4:15pm[2] and F said that it may not be suitable to the Child who is used to have afternoon sleep. More importantly, if the Child attends Box Hill in the afternoon, he will go between this school and M’s home on Monday to Wednesday, totaling 6 times. The Child will go between school and F’s home on Thursday and Friday, totaling 4 times. In terms of convenience of commute, I consider that Box Hill may not be appropriate.

19.  F alleges that it takes 30 to 40 minutes from M’s home to IMS by driving. M said that as she tried personally, it took close to 60 minutes in the morning. F did not confirm the availability of school bus to/from M’s home for IMS. Thus, I accept her submission that it is burdensome to the Child as M does not drive and she would have to arrange the commute crossing multiple tunnels.

20.  In terms of location, YCIS can be said to be a mid-point between the 2 homes. School bus is available to/from M’s home for YCIS. F can choose to drive the Child to/from F’s home or take other appropriate transport. It will not burden the Child too much.

The Child’s special needs

21.  The Child is suffering from mild expressive speech delay and gross motor development delay. Needless to say, he needs to receive professional support for such delays. It could be On-Site Preschool Rehabilitation Services (“OPRS”), Early Education Training Centre (“EETC”) or other services by private clinics.

22.  OPRS is offered by Box Hill, YCIS, Guidepost and Mighty Oaks, but not Victoria Harbour Green. It is not clear if IMS provides OPRS.

23.  EETC government clinics are at Sandy Bay or Shatin.

24.  Parties agreed that pending the determination of the schooling issue, the Child will attend EETC at Sandy Bay on interim basis.

25.  In my view, it seems no harm for the Child to have both services of OPRS in school and EETC at Sandy Bay at the same time unless there are some other good reasons not to have both or they are mutually exclusive to the other.

26.  In this particular case, no doubt the schools which offer OPRS shall be a better option or higher preference than those not. Hence, Victoria Harbour Green may not be suitable.

Background of the family and language

27.  None of the family members attended Montessori education system. They all attended schools with conventional teaching methods. I accept that it would be easier for the parties to understand and assist the Child for his academic challenge if the Child studies in Box Hill, YCIS, Victoria Harbour Green and Mighty Oaks, but not IMS and Guidepost.

28.  All the schools proposed by M have Cantonese, Mandarin and English learning whilst IMS does not have Cantonese. I accept that Cantonese remains the mother tongue, rather than just a colloquial dialect, of the parties and their own families. If the school does not have Cantonese, it may adversely affect the Child’s communication and socialization with most of the members of the parties’ own families.

29.  IMS is certainly not the best option.

Importance of stability

30.  F argued that the Montessori method and philosophy is the best fit for the Child’s character. I have some reservation about this argument since the Child is only 2 years and 7 months old with mild expressive speech delay and gross motor development delay. Indeed, it is difficult to tell which education system fits him best in the meantime.

31.  In my view, if the Child studies in IMS or Guidepost, which only provides the unique nature of the Montessori education system, it is highly likely that sooner or later he would have to leave this education system to conventional one in Hong Kong. I consider that in the long term, it fails to provide the Child with stable education as he may have to adapt a new learning system in the future.

32.  F’s alternative proposal is to get the Child enrolled into Victoria Harbour Green and then to Victoria CWB once a spot is available in the latter. I consider that this is unrealistic and uncertain as no one can guarantee when a spot is available in Victoria CWB.

Tuition fees

33.  YCIS requires a payment of HK$150,000 for debenture. M has already paid and is not asking F to reimburse her at this stage.

34.  IMS requires personal nomination HK$120,000 or annual capital levy for HK$35,000 per year or HK$150,000 capital note.

35.  As both parties have high financial level, I consider that tuition fees are non-issue.

Alleged agreement to enroll the Child to schools on Island side

36.  F alleged that the parties had agreed to enroll the Child schools on the Island side but M denied. In my view, the court is never bound by the parties’ agreement even if it exists. The paramount consideration is always the welfare of the Child.

Conclusion

37.  No doubt, all schools suggested by the parties are good schools in and of themselves. However, insofar as it relates to the overall welfare of the Child, YCIS is the better choice than others and suits his needs more. Having carefully considered all the relevant factors and in the best interest of the Child, I order the Child to attend YCIS for the upcoming academic year of 2024/2025.

38.  As to the question of costs, I see no reason to depart from the usual order, namely no order as to costs. I now make no order as to costs for this application including all costs reserved in relation thereto.