CCMJ v. SSM formerly known as SKL

FCMP 67 / 2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

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BETWEEN

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REASONS FOR DECISION

(Injunction)

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Introduction

1.  On 5 October 2012, this Court handed down its Judgment after a 16-day trial whereby the Respondent (Mother) was granted sole custody, care and control of the child in question (hereinafter referred as “N”). Access was adjourned for further determination with 1 hour reserved. Directions were given for parties to produce submissions on access.  The Respondent (Father) sought to appeal against this Court’s Judgment.  

2.  On 11 January 2013, this Court dismissed the Father’s application for leave to appeal with costs to the Mother, to be taxed if not agreed.

3.  On 25 June 2013, the Court of Appeal dismissed the Father’s application for leave to appeal with costs to the Mother, assessed on a gross sum basis at HK$40,000.  The Mother was legally aided throughout the custody trial in this Court, in the appeal throughout until now. 

4.  The issue of access has now been fixed for hearing on 7 November 2013 at 10:30 a.m. which both parties agreed would need 1 day rather than 1 hour.  

The present application

5.  The child in question N who is now 4 years and 9 months old has completed her K2 kindergarten in Hong Kong Preschool (“HKPS”) this year.  It is unfortunate to see parties are unable to resolve amicably their views as to N’s further education in the coming September school year, which will start next week, and have to resort to litigation again.  The need for the present application affirmed this Court’s findings after the substantive custody trial last year that joint custody in the present case simply does not work in practice.  Bearing in mind the tender years of N, battles of litigation over every aspect of N’s upbringing seems likely unless the parents are able to compromise sensibly before N reaches her majority.

6.  On 6 August 2013, the Father issued the present Summons to seek injunctive reliefs to prevent the Mother from placing N at Primary One at KLT Funful English Primary School (“Funful”).  Prior to the Mother’s enrolment for N in Funful for Primary One, the Father had applied for enrolment for N in 3 international schools for Primary One, namely, (a) Beacon Hill School (“BHS”) of the English Schools Foundation, (b) Chinese International School (“CIS”) and (c) Kellett School.   However, the applications for BHS and CIS were rejected after the interviews.  I was informed by Counsel Miss Rattigan today that no interview was given by Kellett School.

7.  Taking into account the reasons for rejecting N given by BHS in their letter of 7 February 2013, the Father considered it is in N’s best interests to stay in HKPS for one more year for the K3 kindergarten starting September 2013 whereas the Mother considered N should start Primary One education in September 2013.  Around July 2013, the Mother applied and successfully secured a place for N in Funful which is an international school in Kowloon Tong within the vicinity of the Father’s place of residence and HKPS.   The Father disagreed Funful is an international school since it is not included within the list of ‘International Schools’ of the Education Bureau’s e-prospectus.  Apart from whether Funful is an international school, there are also other challenges and concerns by the Father about Funful as set out in his Affirmations which include the following :-

(a)  the quality and standard of teachers at Funful is low;

(b)  Funful does not have facilities such as sports facilities, library, computer room, art room and music room;

(c)  students at Funful have to walk across a 3-lane road with busy traffic to a small public park for physical education class;

(d)  Funful does not run an IB, Primary Years Programme (“PYP”), UK education system or any other appropriate Curriculum; and

(e)  Funful, although is located in Kowloon Tong, it is not listed as one of the schools within the Kowloon City District (which includes schools in the Kowloon Tong area) in the booklet on “Overview of Primary Schools 2012” published by the Committee on Home-School Cooperation.    

8.  The Father filed his 15^th Affirmation in support of the Summons.  Pursuant to this Court’s directions, the Mother filed her 4^th Affidavit in Opposition followed by the Father’s 17^th Affirmation in reply.  There is the Father’s further supplemental 18^th Affirmation filed on 27 August 2013.

9.  The Father’s Summons was first listed for hearing on 9 August 2013. In light of the school term starting 2 September 2013, the Summons was listed for hearing yesterday on an urgent basis with 2 hours reserved. 

The Issue

10.  There is only one central issue here, namely, should N (who has completed K2) continue with her kindergarten studies (which will be in K3) for 1 more year and start her Primary One in September 2014 or that she should start her Primary One education now in September 2013?

The applicable legal principles

11.  It is trite law that the Court in deciding questions relating to custody or upbringing of minors would have regard to the best interests of the minor as the first and paramount consideration (see s.3(1) of the Guardianship of Minors Ordinance, Cap.13). 

12.  In the case of H v. N [2012] 5 HKLRD 498, which is the first hearing on section 3(1) since the amendment in April 2012 of the statutory provisions whereby the terms “welfare” and “wishes” of the minor to become “best interests” and “views”, Mr. Justice Poon in his Judgment restated the approach to be taken by the Courts when considering section 3(1) also discussed about the term “best interests”.  

13.  At paragraphs 24 and 25 of the Judgment, His Lordship said :-

“24. The term ‘best interests’ is not defined. For one thing, it is simply impossible to give an exhaustive statutory definition that embraces every eventuality. More importantly, the flexibility without a statutory definition enables the court to identify and look into all the welfare issues concerning the minor as they arise from the particular circumstances of the case and carefully consider and evaluate all the matters pertaining to those issues.

25. A cursory research of the cases readily shows that the court has given the word “welfare” its widest meaning. Thus, it is not limited to monetary or material needs, the minor’s physical well-being or physical comfort but emcompasses medial, moral, religious and emotional issues including his ties of affection and all other welfare issues. The same must be true for the term “best interests” too.”

14.  With these principles in mind, I now decide the Father’s application.

Discussion

15.  It is not the duty or the task of the Court to comment or classify schools by saying, for instance, School A is better than School B or vice versa.  However, from day to day experience, parents quite often would like to classify schools by reference to their popularity, banding, resources, locality and discipline.  With all things being equal, I will not venture into the parties’ personal views as to whether the 3 schools chosen by the Father are better than Funful or vice versa.  Such exercise or focus of the Court when determining child’s best interests, in my view, is wrong and may be lacking impartiality if not being discriminative.

16.  I will confine myself to consider the best interests of N by looking at the objective environment where N is now being exposed.  Considering the Father’s application is by nature injunctive reliefs restraining the Mother from sending N to Funful, the core question to be looked at is whether to maintain the status quo of N’s studies at kindergarten or sending N to start Primary One is in her best interests ?

Primary One Admission Scheme (“POA”)

17.  There is no dispute that N is eligible to participate in the Government’s POA scheme for allocation of Primary One place in September 2014. There is a rigid timetable requiring students to enrol around middle of September if the child is going to participate in such scheme for a place at Primary One the following year.  The other requirement under the POA scheme is that the child must reach the age of 5 years and 8 months when he or she is enrolled in Primary One in a particular year.  This age requirement is fixed by reference to the child’s birth on or before 31 December of a particular year. This explains for the 8 odd months after the age 5 as school term starts in September every year.        

18.  At one stage there is an issue as to whether N could join the POA scheme for allocation of a school place within the school net 41.  The Mother accepted the school net 41 on condition that it would not attract criminal liability to use the Father’s Kowloon Tong address (within school net 41) since N is living with her as the sole custodian in Tseung Kwan O which is within another school net.  This issue is now clarified by the EDB on 12 August 2013 that they would not accept Father’s place of residence, which is within school net 41, for the allocation.

19.  Counsel Miss Rattigan submitted that the POA scheme also provides discretionary places for students not living within a particular school net to apply for schools in that school net.  Therefore, the answer from EDB would not affect N’s right to participate in the POA scheme.  Details of the POA scheme operation is produced under pages 95 to 96 of the Hearing Bundle.  In my view, the issue of POA scheme is relevant and important for the purpose of the Father’s application to the extent whether N will lose out the chance of participation had she started her Primary One now.  Father in his 15^th Affirmation at paragraph 11 had said :-

“11. ……..I verily believe that the Respondent is making such move to defeat my application to enrol N to the 41 school net since N will automatically lose the chance of being allocated a school place under the POA school net scheme in September 2013 if she is already studying Primary One this September(my emphasis)…….”

20.  I noticed that in the Mother’s Affirmation in opposition, there was no disagreement to the Father’s statement that N would be losing her right under the POA scheme had N started her Primary One education September 2013. Further, Counsel Mr. Kevin Li for the Mother had not made any submission that N’s right under the POA scheme would be unaffected even if N started Primary One in September 2013.  On this issue, I accept Father’s case that N would not be eligible for the POA scheme had N started Primary One education in September 2013.  

21.  Counsel Mr. Li submitted that N could still enrol other schools afterwards even if N start Primary One at Funful in September 2013. Furthermore, Funful is a local international school, N will have the benefit of acquiring English within the matrix of Chinese language.  There is also the submission that such benefit would not exists in those international schools chosen by the Father as the emphasis of those schools is mostly English.  With respect to Mr. Li, I do not agree.   First of all, the question is not N cannot change schools afterwards.  In my view, continued stability and certainty in studies are important for child of tender age.  A child having to change schools within Primary education, unless necessary, is certainly not in the child’s best interests. The child will be losing out contact with friends within the school or classmates within the class whom he or she is familiar, he or she is also needed to face different teachers and school environment.  Secondly, there is no evidence produced by the Mother to show that the international schools chosen by the Father do not provide the same level of Chinese.  Quite often international schools also focus on Chinese though the language barrier more common to be Putonghua rather than Punti. 

22.  The other submission by Mr. Li is that had one of the 3 schools chosen by the Father accepted N for Primary One this year, N would have given up K3 in HKPS anyway and started her Primary One in September 2013.  It only happened that Funful was chosen by the Mother that the Father now disagreed and alleged to be a change of education plan for N.

23.  Counsel Miss Rattigan submitted this is exactly the point because it now proved N, besides the issue of N’s age only 4 years and 9 months by September 2013, is in need of better English training which N is acquiring at Clever Clubs.  On the age issue, N is still young and immature for Primary One which will accept child of 5 years or above by September school year.  This age requirement also appeared in the website of Funful.  Furthermore, there is a massive difference over a child’s learning and understanding ability even for a few months age difference.  If N is going to Primary One this year at the age of 4 years and 10 months, there will be classmates who may be up to 1 and a half years older than N in the class.  This is not in N’s best interests. 

24.  I agree with Miss Rattigan.  First of all, the parties’ dispute is not a battle competing for which primary school, the one chose by the Father or the one chose by the Mother, which N should start her Primary One.  Mr. Li’s submission that the Father challenged Funful because it was chosen by the Mother could only stand for argument if this is a choice of 2 different primary schools.  This is not the case here and also not the central issue framed by this Court.  Since both parties are in consensus that the long term education plan is for N to receive education overseas, I believe a strong command of English language is an advantage which N is now acquiring.   I am prepared to accept the comments of BHS on N to be candid.  Furthermore, I am prepared to take judicial notice that for children of tender years, a few months in age can make a difference when it comes to learning and understanding.   

25.  I have considered the 2 School Progress Report of N at Clever Clubs where N has been attending to improve her English ability.  The Clever Clubs was located at the BHS.  This English study programme was arranged by the Father after he was informed by BHS the reasons for not accepting N’s entrance to BHS Primary One in September 2013.  On these reports, it can be seen N is developing well on a number of tasks and the teachers’ comments on N’s performance are positive.

26.  I have also considered the school reports of N at HKPS for K2 kindergarten.  N’s performance on all areas is either excellent or very good.  The teachers’ comments are also positive.  This is encouraging.

27.  I noted the Mother in her Affirmation sets out 3 headings, namely, Education Plan for N (paragraphs 5 to 7); No.41 School Net Application (paragraphs 8 to 9) and Enrolment of N for Funful (paragraphs 10 to 28).  As rightly submitted by Counsel Miss Rattigan, there are either no or insufficient evidence to support the matters or views stated by the Mother.

The Court’s view

28.  Considering all the evidence and circumstances, I am satisfied that it is not in N’s best interests to start Primary One education in September this year.   I also believe N should not be deprived of her rights under the POA scheme is of equal importance to maintaining the status quo. 

29.  Since this application involves determination of the best interests of the child N, unless it is shown that the Mother had unreasonably contested the Father’s application, the normal rule is to make no order for costs. Having considered the Mother’s opposition, I find there is no basis for me to depart from the normal rule on costs on children’s matters.

30.  Accordingly, I decided not to grant any costs order save and except the Mother’s own costs be taxed in accordance with Legal Aid Regulations. 

Orders

31.  I now make the following Orders :-

(a) The Mother (i.e. Respondent) be restrained from sending the minor N to KLT Funful English Primary School for Primary One in September 2013;

(b) The Mother (i.e. Respondent) do send the minor N to HKPS for K3 in September 2013;

(c) There be no Order as to costs of the Father’s (i.e. Applicant’s) Summons dated 6 August 2013 including all costs reserved;

(d) The Mother’s (i.e. Respondent’s) own costs be taxed in accordance with Legal Aid Regulations.

32.  This is a costs order nisi which will become absolute unless any party applies to vary the same within 14 days.