MG v. LHH

FCMP 137 / 2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 137 OF 2007

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J U D G M E N T

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Introduction

1. This is an application by a mother for custody and care and control of her two very young children, V who was born on the 27 June 2006 and S who was born 11 months later, on the 29 May 2007.  S was nine weeks premature.

2. I should say at the outset that although the mother has framed this as an application for custody, in reality she is asking for the return of the eldest child, V, to her full time care.

3. The parents are not married.  Although the parties are not in agreement over who finished with whom, there is no doubt that the relationship did eventually break down and that they are now living apart.

4. The father is living with his parents in KT.  The mother is presently living within walking distance of the father’s home. 

5. As one might expect the mother relied heavily on the assistance of others from time to time, after the birth of V.  For a while the couple hired a child minder, initially full time and then part time.  The mother’s own parents also visited from the Mainland to assist, although the father alleges that they did not come specifically to help take care of V.  In any event, it is I think accepted that it was the father’s mother, i.e. the grandmother, who became the most involved in helping to take care of V on a day-to-day basis.

6. In July 2007 the grandmother offered to take care of V. The mother agreed.  On the 7 August 2007 the mother told the father that she intended to take V back to her home.  She was not allowed to do so.  Matters escalated, words were said and the Police were called.

7. On the 10 August 2007 the mother made an ex parte application for custody and care and control of both children.  There have been two orders since then and although V has remained living with her father and her grandparents, the mother has seen her regularly. Likewise the father has seen S regularly.  S has remained living with his mother. 

8. I should say at the outset that I consider these children to be very lucky – in that they have parents and grandparents who clearly care for them very much and want what is the best for them.  It is very unfortunate, in my view, that the parties were unable to resolve this matter between themselves.

9. Be that as it may, it is now my duty to determine what is in the best interests of these particular children at this particular point in time.

What then are the issues?

A.  The main issue it seems to me is where should the children now live?

B.  Further how should the parents share the care of these children going forward?

C. Once that has been determined, what formal orders should be made by the court? (I.e. orders for custody/joint custody, care and control/shared care and/or access).

The parents  

10. The mother is from the mainland and previously worked as a part time waitress.  She is 34 years of age.  She does not work outside the home at present.  She is a full time mother.  The father is a bus driver.  He is 31 years of age.  He and his family previously emigrated to Canada. The father works shifts.  His preferred shift is either from 5:30 am – 1:30 pm or from 5:00 pm to 1:00 am.  He can request certain shifts.  He helps care for V when he is at home.  Otherwise, the grandmother takes care of her.  Both children see the other parent regularly, usually once a week at the mother’s home and once a week at the Grandmother’s home.

The law

11. As these parents are unmarried, sole custody of both children prima facie vests in the mother. (See s. 3 (1) ( c) Guardianship of Minors Ordinance, Cap 13).

12. Under s. 3 (1) (d) the court may order that :-

the applicant shall have some or all of the rights and authority that the law would allow him as father if the minor were legitimate.

13. The father indicated in his acknowledgment of service that he intended to contest the proceedings.  He has said in his affirmations that he wishes to continue to take care of V.  During his oral evidence he said that ideally he would like to take care of both children.  He seeks custody of them both.

14. The principles relating to applications such are these are the same as those relating to applications pertaining to children generally within matrimonial proceedings.  The court shall look first to the welfare of the child. Their welfare is regarded as being of first and paramount consideration. (See s.3 Guardianship of Minors Ordinance, Cap 13).

Case law

15. Case law has further enunciated a number of principles.

16. It is generally considered to be in the best interests of a child to be cared for by a natural parent.  The role of the mother is considered to be of particular importance in the lives of very small children, especially where she is able to fulfill the role of a full time parent.  This is so even where there are other very devoted and caring members of the extended family who are equally capable of fulfilling that role.

17. The status quo of children is important, but will nevertheless need to be assessed on a case-by-case basis, depending on individual circumstances.  Status quo will be more important in some cases than others.

(See L v C CACV333 of 2007, Aslam v Ali CACV 144 of 2003 and P v P CA 256 of 1996).

Social investigation report

18. Recommendations made to the court in social welfare reports although not binding are generally considered to be persuasive.  Although I accept that the court is not bound by the recommendations made, I am mindful of the fact that the social welfare officer has been actively involved with these children and that she is the “ears and eyes” of the court.  The social welfare officer has had an opportunity to observe the parties’ in a way that the court cannot.

19. Mr. Surman for the father says that the social welfare officer’s report is fundamentally flawed in that it presupposes that the mother was the main carer for V until these present proceedings were issued in August 2007.  I accept on the evidence that V has spent a lot of time with her Grandparents, especially her Grandmother and that she has on occasions been cared for by her for extended periods of time without the assistance of any third parties and in the absence of her mother.  It is for example accepted that V was with the Grandparents in Canada for 50 days from November 2006 – January 2007.   

20. I am also mindful of the Social Welfare Officer’s central recommendation namely that:

It is in the best interests of the children to receive primary care from their natural parents, at least one of them if not both. Given that neither party favours joint custody and taking consideration of the role of mother as the natural parent, I would like to recommend for the Court’s consideration, that the Applicant has custody of the two children in question with reasonable access to the Respondent as agreed by both parties. Notwithstanding the issue of custody, I hope that both parents with support from the grandparents, will continue to maintain their co-operation in providing love and care to the two young children in their lives going forward.  

21. I will consider the recommendations made by the Social Welfare Officer when I discuss the issues below.

Discussion

A.    Where should the children now live?

22. The father’s case, in a nutshell, is that the mother cannot cope with two such small children.  He says that he can provide a better living environment and appropriate care.  He as the natural parent can look after V and S when he is not at work and otherwise the grandmother, who is a young 57 year old, is able and very willing to do so.  He says that as a working parent he provides a good role model for the children. Further he says that the mother does not have support, as she has no family in Hong Kong and very few friends.  In contrast he has good support.  He also queries the mother’s parenting skills, pointing in particular to some health problems that S has experienced in the recent past.

23. The father wishes the status quo to remain or in the alternative to have both children live with him.

24. I intend to consider these concerns one by one.

Ability to cope

25. There is no doubt that coping with two very small children who are only 11 months apart, is very hard work, especially when you are a single mother and recently arrived from the Mainland.

26. The mother’s ability to cope was clearly of some concern to the Social Welfare Officer.  In particular the SWO explained that she had spoken to the mother about the practicalities of taking two small children in and out of her present flat.  She was satisfied with the explanation given by the mother.  Having heard the mother give evidence on this point so am I.

Living environment

27. The father produced copies of photographs, which showed the outside environment of both parties’ respective flats.  It is clear that the grandparent’s flat is in a more desirable area than that of the mother. The mother’s flat was chosen by the parties when they were together, and was presumably within their means at the time.  The grandparents apparently own another flat in KT.  In the father’s closing submissions he states that the Grandparents are willing to allow the children to live there.  No evidence was produced in relation to this second flat and this point was not further elaborated upon during the hearing.  In any event the mother hopes in time to be granted a public housing unit.

28. I am satisfied that although this is one factor that I may take into account that on its own it is not sufficient reason to retain the present living arrangements.

Natural parent

29. Case law indicates that a natural parent is always to be preferred to that of a surrogate, however caring that surrogate may be.  I have no doubt that the grandmother has been exemplary in her care of V and that both she and her husband love V very much.  The father points out that he, as a natural parent also provides care for V on a daily basis.  However he is not able to provide full time care and that is the crux of the matter.  In contrast the natural mother is now willing and able to provide that care for V.

Role model

30. The father says that as a working parent he is a good role model for the children.

31. Whilst I would accept that, I would not wish in any way to denigrate the role of the mother as a full time parent.  Both roles are of equal importance and are to be respected.

Support 

32. The father clearly has a good support network.  In contrast the mother has limited support.  I accept that.  I would hope however that the parties will continue to support each other going forward and that the grandparents will continue to play an active and important role in the children’s lives. I do not accept that the lack of support is reason to deny the mother the right to have both children live with her.

Parenting skills

33. As is often the case in circumstances such as these, both sides have questioned the parenting skills of the other.  Having read the affirmations and having heard the parties give evidence, I am satisfied that both the mother and father are good parents and are capable of fulfilling their respective roles in that respect. 

Status quo 

34. The father says that V has been living full time with him and his family on and off since birth and certainly since 7 August 2007.  He says that the grandmother has always provided a lot of the daily care for V.  Given the fact that the mother was pregnant with S shortly after the birth of V and she then encountered difficulties both during the pregnancy and after his birth, which was premature, it seems to me that that is hardly surprising.  At no time though did the mother relinquish her rights as a mother.

35. As stated above the father also points to the fact that the grandmother took V with her to Canada and looked after her there for 50 days.  It is submitted that this

was a crucial time frame because it demonstrates their ability to take care of V without the Applicant’s assistance and also with the lack of an amah/domestic helper for a lengthy period of time.

36. As I have said I accept that the grandmother is able and very willing to look after V.  I do not in any way doubt her capabilities in this respect. However that is not reason enough to order that V remain living with her and the father.

37. Also as indicated above, although the issue of status quo is important, it will nevertheless need to be assessed on a case-by-case basis.  In this case it seems to me that the status quo should not be the determining factor when deciding what is in the best interests of these  particular children.

Sibling unity

38. One other factor, which is also of very real concern, is that of sibling unity.  Wherever possible the courts will try to ensure that children are brought up together.  This case is no exception.  The father says that he would like to look after S as well but acknowledges that this is unlikely given his tender age.  The Social Welfare Officer comments as follows:

Another consideration is the issue of sibling unity. It is a pity that the two children-in-question was put under split caring arrangement upon separation of their parents shortly after birth. To split up the children of the family is inherently undesirable from the point of view of their welfare, which is the first and paramount consideration. This should be avoided as far as possible unless there are exceptional circumstances, which is not warranted in this case.

39. I agree.

Conclusion

40. In conclusion it seems to me that V and S should live with their mother for all of the reasons set out above. 

B.    How then should the parents share the care of these children going forward?

41. Both parties have put forward proposals.  In view of my finding given above I will only consider the proposals put forward for access where both children are living with their mother.

42. The mother says that on the father’s day off at the weekend

She will arrange to bring the children out, so that they may all have a normal family outing, as if the parents were not separated.

43. In addition she proposed free access i.e. for the father to see the children at any time.  When pressed she agreed that access could be twice a week.

44. The father suggests access three times a week on Monday, Wednesday and Friday from 13:30 hrs to 15:30 hrs at the Grandmother’s home.

45. In addition it is proposed that there be overnight staying access to both children once a week from 13:30 hrs on Friday to Saturday at 12 noon or Saturday to Sunday at the same times.

46. It seems to me that there are difficulties with both parties’ suggestions.  In so far as the mother is concerned, although it is admirable to suggest that there be a normal family outing each week, this is not within my powers to order.  If the parties feel that that is appropriate then that is a matter for them to organize as and when they feel able.

47. From the father’s perspective, although I accept that V can and should have overnight staying access given the circumstances it seems to me that this is not appropriate for S at this stage.  This will change as he gets older.

48. Consequently I will make an order that the father have two hours access to both children three times a week on Monday, Wednesday and Friday from 13:30hrs to 15:30hrs, or at such other times by agreement between the parties.  This is to allow for the father’s changing shifts.

49. In addition there will be overnight staying access for V once a week from 13:30 hrs on Friday to Saturday at 12 noon at the Grandmother’s home.   

C.    What formal orders should be made by the court? (I.e. orders for custody/joint custody, care and control/shared care and/or access).

50. Both parties have indicated that they are not in agreement to joint custody because they don’t believe that they will be able to co-operate with each other going forward.  Given that the Social Welfare Officer has recommended sole custody to the mother.  These assertions have not been tested in any way, nor have they been analysed. It seems to me that the above arrangements will require the parties’ to co-operate with each other on a regular basis.  (I have heard, for e.g. that the mother does not have the father’s mobile number.  This will need to change).  The parents will need to communicate directly with each other from time to time, as well as with the assistance of the grandmother. They will also need to make decisions about their children going forward.

51. I am also mindful of the fact that the father has only limited legal rights at present as the parties are unmarried.  It seems to me imperative that his legal rights as a father be recognized.

52.    Consequently, for all of these reasons I will make an order as follows: