C v. S

                                             HCMP 929/2017

[2021] HKCFI 278

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 929 OF 2017

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JUDGMENT

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Table of Contents

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A.  Introduction

B.  Main Relevant Events

C.  N’s Present Condition

D.  Schedule of Agreed and Disputed Issues

E.  The Witnesses and the Evidence

F.  General Credibility of Father and Mother

G.  Issue (1)

G.1  Legal Principles

G.2  Father’s Case

G.3  The 1^st Abuse Allegation

G.4  The 2^nd Abuse Allegation

G.5  The 3^rd Abuse Allegation

G.6  The 4^th Abuse Allegation

G.7  The 5^th Abuse Allegation

G.8  Conclusion on the 5 Abuse Allegations

G.9  Mother’s direct attempts to suborn N

G.9.1  Allegation (1)

G.9.2  Allegation (2)

G.9.3  Allegation (3)

G.9.4  Allegation (4)

G.9.5  Allegation (5)

G.9.6  Allegation (6)

G.9.7  Allegation (7)

G.9.8  Conclusion on Father’s Allegations (1) to (7)

G.10   Mother’s Parental Failings

G.10.1  Failing to Encourage or Enforce Access

G.10.2  The Report Card Incident

G.10.3  The “Password Dispute”

G.11  The Evidence of Ms So

G.12  The Evidence of Mr Lam

G.13  The OS Reports

G.14  Conclusion On Issue (1): Parental Alienation

H.  Issue (2) and Issue (3)

I.  Issue (3), Issue (4) and Issue (5)

I.1  General Principles

I.2  Ascertainable Views of the Child

I.3  N’s Physical, Emotional and Educational Needs

I.4  Nature of N’s relationship with each of her parents    and with other persons

I.5  The likely effect on N of any change in her circumstances

I.6  N’s age, maturity, sex, social and cultural background     and any other characteristics of N that the Court     considers relevant

I.7  Other Welfare Checklist factors

I.8  N’s Custody, Care and Control

I.9  Access

J.  Costs

A.  INTRODUCTION

1.  As Mother decided not to proceed with her application to de-ward N prior to the commencement of the present trial, the remaining two disputed applications for this Court now to decide are:

(1)  Father’s application for custody, care and control of N;

(2)  Mother’s application for variation of the access arrangements.

2.  The detailed background of these wardship proceedings has been set out in numerous published judgments and will not be repeated here.  As of todate, there have been no less than 16 published judgments/decisions handed down by Judge Own in the Family Court (“Judge”), 7 judgments/decisions in the Court of Appeal on leave to appeal applications/interlocutory appeals and 9 judgments/decisions in these wardship proceedings.  Further there have been no less than 18 social welfare reports (referred to individually as “SWR”), 3 reports from the Official Solicitor as guardian ad litem for N (referred to individually as “OS Report”). I will follow abbreviations in previous decisions/judgments unless otherwise indicated herein.

3.  Mr Richard Todd and Ms Athena Wong appeared for Father at the trial and Ms Belinda Ma and Ms Peggy Pao appeared for Mother who is on legal aid.  Mr Jason Chan, the present representative of the Official Solicitor (“OS”), appeared as guardian ad litem/representative of N.

B.  MAIN RELEVANT EVENTS

4.  Although the parties have submitted an “Agreed Chronology” on 19 October 2020 as directed by this Court, it contained disputed inclusions, and no references to the page numbers in the trial bundles, and further between March to May 2013, the events were not even set out in a chronological order, which was confusing and unhelpful.  Upon the Court’s further directions, a further chronology was then submitted by the Father on 5 November 2020, which was again not agreed by the Mother, as Father’s chronology contained various disputed comments/interpretations by him.  The Mother did not submit any further chronology.  All this goes to demonstrate the way that the parties have been conducting this litigation, and that they were not even able to set out simple undisputed facts in a chronological order.  Their legal representatives did not seem to be able to assist either.

5.  To recapitulate, the ward N was born in November 2008, and is now 12 years old.  Father and Mother, who were not married, separated on 10 May 2009, when Mother left home with N.  N was then only 6 months old.

6.  Parties were not able to agree to N’s arrangements, and Father commenced the proceedings in the Family Court (“FCMP 67/2010”) on 25 March 2010 seeking custody and access.  On 19 October 2010, an interim access order was made, which was subsequently varied on 8 November 2011 (“2011 Access Order”)[1].  Briefly, under the 2011 Access Order, Father was to have:

(1)  weekday access every Thursday from picking up N from her school to 8:30pm in the evening; and

(2)  weekend staying access every Friday, from the time of picking her up from school to 9 pm on Saturday;

(3)  holiday staying access over Christmas 2011 and Lunar New Year 2012;

(4)  additional staying access over two nights in January 2012.

7.  As seen above, at that time, Father was enjoying quite generous access arrangements to N.  Eventually, the trial over custody, care and control took place before the Judge.  After a 16 day trial spanning from 29 February 2012 to 27 July 2012 (“2012 Trial”), on 5 October 2012, the Judge handed down a judgment (“Custody Judgment”) and granted N’s sole custody, care and control to the Mother with general access to the Father, details to be determined and pending determination or further order, the then access arrangements were to continue (“Custody Order”)[2].

8.  This was 8 years ago and N was then not yet 4 years old.

9.  The then access arrangements which were ordered to continue pursuant to the Custody Order were those set out in the 2011 Access Order.

10.  The Father had tried to appeal against the Custody Order, but eventually on 25 June 2013, the Court of Appeal refused to grant him leave.

11.  The matter did not rest there.  Five months after leave to appeal was refused by the Court of Appeal, on 5 November 2013, he issued a summons for variation of the Custody Order (“1^st Variation Application”).  Father sought an order that the parties be granted N’s joint custody and that Father be granted N’s sole care and control[3].

12.  While Father’s application for leave to appeal was going on and prior to his issuing the 1^st Variation Application, there was an “abuse allegation” made by the Mother on 9 March 2013 (“1^st Abuse Allegation”), as a result of which Father’s access to N was suspended as from 14 March 2013. 

13.  On 20 March 2013, the Judge ordered that Father’s access to resume and that the access arrangements in the 2011 Access Order to continue[4]. Later , on 10 June 2013, Father’s access to N was increased and Father was entitled to staying access for half of N’s summer school holidays with leave granted to Father and Mother to temporarily remove N out of Hong Kong of not more than 7 days during the summer school holidays[5].

14.  As said, Father then took out his 1^st Variation Application.

15.  Subsequently, the then interim access was varied by an order on 13 March 2014[6], in that Father’s interim access was increased to roughly half a week on an alternate weekly basis, namely one week from Wednesday (after school or 9:30am if no school) to Saturday at 9:30 pm and second week from Thursdays ( after school or 9:30 am if no school) to Sundays at 10 am (“2014 Access Order”). Later, there was also an order made on 2 July 2014 for Father to have staying access on an alternate weekly 7-day basis for the summer holidays in 2014.  At the time of the 2014 Access Order, N was only 5 years 4 months old and was attending kindergarten.

16.  After the 2014 Access Order, the trial for N’s financial provision took place before the Judge over a period of some 9 months between June 2014 and March 2015. The Judge handed down his judgment on 5 June 2015. 

17.  It was on 30 May 2015 that Mother made her second “abuse allegation” (“2^nd Abuse Allegation”), as a result of which Father’s access was suspended again pursuant to an order made on 4 June 2015.  It was not until 14 August 2015 that Father was granted interim supervised access from 2pm – 5 pm on 4 days in August 2015 at the office of the social welfare officer.  On 31 August 2015, Father was granted further supervised access.

18.  On 21 September 2015, Father’s access under the 2014 Access Order was ordered to resume[7]. This was however followed by another “abuse allegation” (“3^rd Abuse Allegation”) about a month later on 24 October 2015, and Father’s access was again suspended.

19.  On 12 November 2015, Mother applied to vary the 2014 Access Order to supervised day access.  The 3^rd Abuse Allegation led to an interim order on 9 December 2015, when Father’s access was again ordered to be supervised , for 3 hours per week at the office of the social welfare officer[8].

20.  On 7 March 2016, Father applied to resume access as per the 2014 Access Order.  The Mother on the other hand opposed this and sought Father’s access to continue to be supervised.

21.  On 8 March 2016, Father decided to withdraw his then 1^st Variation Application.

22.  Thereafter, by consent, on 31 March 2016, Father was granted interim access every Saturday from 10 am to 9 pm conditional on Father’s compliance with various undertakings/conditions (“2016 Access Order”)[9], and the undertakings/conditions (“Undertakings”) were:

(1)  that the interim defined access to take place in the Kowloon Tong premises with Father’s parents and his domestic helper Norma and/or Jennifer;

(2)  should Father take N out of the Kowloon Tong premises, the helper Norma and/or Jennifer must accompany them throughout;

(3)  Father to undertake to continue all the medical appointments of his own psychological treatment at the Kowloon Hospital and to take all medication as prescribed;

(4)  Father to be responsible for picking up and returning N together with domestic helpers Norma and/or Jennifer after each interim access;

(5)  Father to be responsible for delivery of N to any extra curricular activities or tuition classes during the interim access.

23.  The Kowloon Tong premises referred to in the above order is a house in Kowloon Tong owned by a company belonging to Father’s parents (“Kowloon Tong Premises”) and where Father has been living since 2001[10].

24.  Father’s application to resume access under the 2014 Access Order and Mother’s application to vary Father’s access to supervised day access were both ordered to be adjourned to a two day substantive trial.  After the trial, on 30 September 2016, the Judge ordered their respective applications be dismissed, and further ordered that unless Father was to apply within 21 days for the final determination of general access pursuant to the Custody Order, Father was to have reasonable access to N (ie without any defined access terms) (“Reasonable Access Order”)[11].

25.  Father applied for leave to appeal against the Reasonable Access Order, which he later obtained from the Court of Appeal.  In the meantime, Father continued to have access to N on Saturday from 10 am to 9 pm pursuant to the 2016 Access Order until the 4^th Abuse Allegation set out hereinbelow.

26.  On 20 January 2017, Father applied for defined access over Chinese New Year and for N to visit her ailing grandmother.

27.  Then, on 21 January 2017, another incident was alleged by Mother to have taken place (“4^th Abuse Allegation”), as a result which Father’s access to N was suspended again.

28.  Notwithstanding that the Judge had made an order on 24 January 2017 for Father to have defined access daily for 3 days over Chinese New Year in the company of Mother[12], such access eventually did not take place following the 4^th Abuse Allegation whereupon Father’s access to N came to a halt.

29.  On 19 May 2017, Father issued the present wardship proceedings and made an urgent application for access to resume.  On that day, this Court ordered that Father to have interim access along the same terms of the 2016 Access Order and subject to the same Undertakings (“May 2017 Access Order”).  Notwithstanding this Court restoring the 2016 Access Order, there were disputes over the pickup point and venue which resulted in a further order on 21 September 2017 (“September 2017 Access Order”).  There was non compliance by the Mother of the terms of the May 2017 Access Order (as supplemented by the September 2017 Access Order) and a further order was later made on 29 September 2017 with a penal notice endorsed against the Mother. Again, Mother failed to comply alleging that it was N who did not want to attend access.  This resulted in an urgent application before G Lam J who made it clear that whether N wanted to attend access or not was not an answer to an order requiring delivery of N to the pickup point stated in the September 2017 Access Order and Mother was ordered to pay costs of those applications.

30.  On 4 October 2017, Mother then took out an application to vary the May 2017 Access Order as supplemented by the September 2017 Access Order.  On 12 October 2017, this Court granted the order sought by Father in the originating summons herein, namely that he was granted all the rights and authority that the law would allow him as father if N were born within wedlock.

31.  The Father eventually had access on 7 October 2017 after a 9 month disruption after the 4^th Abuse Allegation and since then, Father had been having access which should take place weekly on Saturday morning for about 2 to 3 hours at the Parent-Child Contact Centre (“Contact Centre”) of the Hong Kong Family Welfare Society (“HKFWS”).

32.  However, less than a month later there was the so called “Watches Incident” at the Contact Centre during the access session on 4 November 2017.  This will be further elaborated later in this judgment.

33.  On 13 November 2017, Mother issued a summons to de-ward N.   

34.  It was at a directions hearing before this Court on 18 December 2017 that the Court was informed that N had told Mother that she had “visual images of stabbing her mother to death and ideation of killing her maternal grandparents, God and Buddha”, and that on 12 December 2017, N’s then treating government clinical psychologist Mr Alex Lam (“Mr Lam”) had written a referral letter for N to consult a government psychiatrist at the YMT Child Service.  Mother had taken N to see a private psychiatrist around middle of December without notifying Father.  N was diagnosed to be suffering from obsessive compulsive disorder (“OCD”). As an appointment to consult a government psychiatrist would take time to set up, this Court was of the view that N should receive urgent treatment from a private psychiatrist.  This was met with no objection from Father at the hearing who undertook to pay for such fees but the parents were not able to agree which private psychiatrist N should consult.   On 3 January 2018, a private psychiatrist Dr Joanna Lam (who was not Father’s choice) was selected and appointed by this Court to be N’s treating psychiatrist.  On 1 March 2018, despite Father’s opposition, this Court also ordered N to be separately represented by the OS.

35.  Subsequently, by an order of this Court on 20 June 2018, N started to receive treatment at the YMT Child Service as well as continuing to receive treatment from Dr Joanna Lam until 18 September 2020, when this Court made an order that the so called “parallel treatment” from Dr Lam was no longer necessary.

36.  Although access generally did take place at the Contact Centre, there were other disputes/disagreements between the parties including what was called a “School Report Incident”, and then on 21 September 2019, there was another allegation by Mother (“5^th Abuse Allegation”).  This was again followed by suspension of access, which was eventually resumed on 2 November 2019.  Suffice to say, at this stage, for various reasons including the Covid 19 pandemic, there have been further disruptions in Father’s access to N.

C.  N’S PRESENT CONDITION

37.  N is now 12 years old and she has been attending primary 6 since September 2020 at the same school since primary 1.  On 25 July 2020, N’s then academic performance in primary 5 was assessed to be in Group D in a range of 5 Groups A to E with A being the strongest and E being the weakest.

38.  Due to the Covid 19 pandemic, N has been attending online classes on and off, and as seen later, there was a further dispute between Father and Mother over Father’s access to N’s school apps and passwords.

39.  As said earlier, this Court had ordered N to receive treatment at the YMT Child Service as well as from Dr Joanna Lam.  Dr Lily Ho, the government psychiatrist at the YMT Child Service had on 30 June 2020 prepared a very brief medical report[13] in which Dr Ho opined that the prognosis of N was highly affected by her communication and relationship with her family but that N was mentally stable at the last follow up appointment with Dr Ho on 7 April 2020.

40.  Later, as seen in a more detailed medical report dated 13 August 2020 prepared by the government clinical psychologist Dr Winifred Mark at the YMT Child Service[14], N was first known to the YMT Child Service on 29 May 2015 but no psychiatric diagnosis was made at that juncture, and N’ case was closed subsequently on 18 September 2015 with no psychiatric diagnosis warranted.  N was then seen again at YMT Child Service on 5 October 2018 by Dr Lily Ho after an order of this Court as mentioned earlier.  As said, N was diagnosed with OCD and later N was referred by Dr Ho to Dr Mark for cognitive behavioural therapy (“CBT”). 

41.  As reported by Dr Mark, after receiving the CBT sessions, N was increasingly able to generate balanced thoughts and that by August 2020, N had not been reported to have any intrusive thoughts and Mother had not observed any compulsions in N.  N’s OCD symptoms were considered to be subclinical by August 2020, and that on a psychiatric level, N had reached a relatively stable condition and ready for ending the then course of CBT, and that N’s case would be closed by end of 2020 if N’s OCD remained stable. 

42.  At the trial, this Court was informed that N’s psychiatric condition had continued to remain stable.

D.  SCHEDULE OF AGREED AND DISPUTED ISSUES 

43.  The parties have submitted a Scott Schedule containing their agreed and disputed issues in the present trial. As set out in the Scott Schedule[15], the issues were:

(1)  Has there been parental alienation by the Mother? (“Issue (1))

(2)  If there is a finding of parental alienation, should the Father be granted custody, care & control?  (“Issue (2)”)

(3)  If there is a finding of parental alienation, what should access be for either parent?  ( “Issue (3)”)

(4)  If there is a finding of no parental alienation, what should the access to the Father be?  (“Issue (4)”)

(5)  Should sole custody be granted to the Father if care and control goes to him? If not, joint custody?  (“Issue (5)”)

(6)  Should the Father be granted with joint custody if care and control does not go to him?  (“Issue (6)”)

E.  THE WITNESSES AND THE EVIDENCE

44.  There were a total of 14 of Father’s affidavits and 9 of Mother’s affidavits filed in the present proceedings which were included in the trial bundles, in which they had respectively exhibited certain affirmations/affidavits previously filed in FCMP 67/2010, and which were also included in the trial bundles.  They both attended trial and were cross examined.

45.  Father had called the following persons to support his case:

(1)  his friend Dr Winnie Wong Sau Yee (“Dr Winnie Wong);

(2)  his brother Mr Chan Cheong Lung Daniel (“Daniel”)

(3)  A psychiatrist Dr Hung Bing Kei Gabriel (“Dr Hung”);

(4)  Daniel’s domestic helper Ms Parsini Lestariningsih (“Sini”);

(5)  A domestic helper who works in Father’s household, Ms Reotita Norma R (“Norma”);

(6)  Another domestic helper who works in Father’s household, Ms Epil Jennifer De La Cruz (“Jennifer”)

46.  There have been a number of social welfare officers (referred to individually as “SWO”) involved in this case at various times.  Mrs Lam Yeung Kit-ching was the SWO who had prepared 3 reports in 2017 and 2018 and Ms So Hau Ping (“Ms So”) was the SWO who had prepared the 2 recent reports in 2020.  By the time of the trial, Mrs Lam had retired, and only Ms So attended the trial to given oral evidence and to answer questions by the parties.

47.  Even though the previous SWOs did not attend the present trial for questioning, under section 3(1)(i)(B) of the Guardianship of Minors Ordinance, Cap 13, this Court has to give due consideration to any material information contained in those SWRs in the trial bundles.

48.  The government clinical psychologist who was treating N from 10 November 2015 until January 2018, Mr Lam Ho Ming (“Mr Lam”), also attended trial to give oral evidence and to answer questions.

F.  GENERAL CREDIBILITY OF FATHER AND MOTHER

49.  Father and Mother were of course the main witnesses in this trial, and their evidence very much depended on their credibility.

50.  At the outset, I would mention that I find Father’s answers during cross examination in relation to two matters unsatisfactory.  In one of Father’s answers in relation to N’s schooling, Father had said that N had been accepted by a English School Foundation (ESF) school but Mother did not allow N to attend the interview as she and N had to go to Canada.  As seen in a decision given on 8 July 2016 by the Judge in FCMP 67/2010, there was no acceptance of N by the ESF school and there was only an appointment for an interview with that ESF school on 10 August 2016, which according to Father was for N to commence at the school for the school term commencing September 2016, ie a month later.  Father had, amongst other things, relied on the interview appointment to oppose and/or to place a condition on Mother’s application to take N to Canada for a holiday.  It was quite clear in the Judge’s decision that Father did not notify Mother or discuss with her before Father accepting the interview appointment, and there was no consent from Mother for N to change school for September 2016.   

51.  I accept what was submitted on behalf of Mother, what Father said under cross examination about having secured a place at the ESF school for N and Mother not allowing N to attend the interview was far from what the Judge had found, and what Father said under cross examination was thus, to say the least, misleading.  In fact, for reasons set out by the Judge in his decision, the Judge had said that he was not satisfied that it was in N’s best interests to attend that interview.

52.  The second matter was in relation to Father’s residential address.  Father had not stated his residential address in his affirmations/affidavits filed in these proceedings.  According to what was stated by the SWO Ms So in her SWR, Father had requested her to keep his residential address confidential.  Ms So confirmed during the trial that it was Father who had asked her to keep his residential address confidential. Even though Father had not asked Ms So’s predecessors to do so, I do not see any reason as to why Ms So would want to make up this part of her evidence.

53.  When Father was asked about this, he said he knew nothing about the requirement in Order 41 rule 1(4) of the Rules of the High Court.  However, as pointed out by Mother’s Counsel Ms Ma, it was Father who instructed his solicitors to write to the Family Court in 2014 for leave for his witness Dr Winnie Wong not to disclose her residential address, and further it was Father who instructed his present solicitors to write in 2018 in respect to the Judge’s then query to provide his residential address.

54.  When asked by this Court what was the address he provided in his affirmations/affidavits, Father said it was the business address of his solicitors and that it was provided as his correspondence address. He then tried to explain that if his parents saw any legal documents, they would be very sad, and that although his father had passed away, his mother is now very old and that he did not want to cause any psychological harm to his mother.  However, his explanation simply did not make sense and his answer was evasive.  Since he was legally represented throughout these proceedings, there was no reason as to why legal documents would not be sent to his solicitors and instead be sent direct to his home.

55.  As said, in those SWRs prior to those prepared by Ms So, Father’s address was stated to be that of the Kowloon Tong Premises. On the other hand, Father had in the past tried to give an impression that he was only living there temporarily.  This was seen during the financial provision trial when Father’s then evidence was that he was using the One Silver Sea property as his place of residence to oppose Mother and N being allowed to reside there[16] and later seen in particular in a long email marked “without prejudice” which he sent to Mother on 2 January 2017 (“WP Email”)[17].  In this email, he had said he was only frequently at the Kowloon Tong Premises for convenience sake, ie for access and also for looking after his parents.  As said earlier, the Judge had already said that he had been living there since 2001.  In any event, for reasons of his own, Father had not been forthcoming in his evidence as to why he did not provide his residential address in his affirmations/affidavits.  

56.  As will be further set out later in this judgment, I have found Father evasive in other answers as well, and he had also cherry picked evidence from various reports.  I do not find him a reliable witness. 

57.  There were no general submissions on Mother’s credibility in Father’s Closing Submissions.  In any event, having heard Mother’s evidence, by comparison to Father, I find Mother generally more direct in her answers during cross examination, and for reasons set out later in this judgment, I have preferred her version.

G.  ISSUE (1)

58.  Issue (1), ie parental alienation, is the main ground for Father’s application to vary N’s present status quo and to seek that custody, care and control of N be granted to him.

59.  In his 1^st affirmation filed herein on 20 April 2017, Father stated that this matter had a long history and a series of unfounded child abuse allegations laid by the Mother[18], and that those repeated unfounded allegations, coaching and the serious alienation by Mother had adversely impacted repeatedly on N’s growth and her mental and physical health[19].  In Father’s 2^nd affirmation herein, he had further set out the “pattern of alienation of Mother over the years”, the pattern being since 2013, in each and every instance of Mother’s allegations, she (i) first alleged an abuse incident; (ii) then blocked his access despite the court order in place and (iii) further alleged that N refused access as she was very fearful of him[20]. 

60.  As set out earlier, there were 5 Abuse Allegations relied on by Father, and four of them were incidents of alleged physical abuse and one incident was of an alleged sexual abuse.

G.1      Legal Principles

61.  In the decision in these proceedings of 28 May 2020, [2020] HKCFI 937, this Court had quoted the definition of the CAFCASS in UK[21], as referred to by Lord Justice Peter Jackson in paragraph 8 of his judgment in Re S (Parental Alienation: Cult) [2020] EWCA Civ 568.  What Jackson LJ had stated was as follows:

“8. ..… For working purposes, the CAFCASS definition of alienation is sufficient:

‘When a child’s resistance/hostility towards one parent is not justified and is the result of psychological manipulation by the other parent’

To that may be added that the manipulation of the child by the other parent need not be malicious or even deliberate.  It is the process that matters, not the motive.”

62.  In fact, in paragraphs 7 – 13 of his judgment, Jackson LJ had set out the law on parental alienation which this Court finds most helpful.

63.  To start with, Jackson LJ had said in paragraph 7:

“7. At the outset, it must be acknowledged that, whether a family is united or divided, it is not uncommon for there to be difficulties in a parent-child relationship that cannot fairly be laid at the door of the other parent. Children have their own feelings and needs and where their parents are polarised they are bound to feel the effects. Situations of this kind, where the concerned parent is being no more than properly supportive, must obviously be distinguished from those where an emotionally abusive process is taking place. For that reason, the value of early fact-finding has repeatedly been emphasised.” (emphasis added)

64.  I will not set out in full all those paragraphs 9 – 13 in Re S, which are summarised as follows:

(1)  Where a child's relationship with one parent is not working for no apparent good reason, signs of alienation may be found on the part of the other parent….(para 9);

(2)  Where a process of alienation is found to exist, there is a spectrum of severity and the remedy will depend upon an assessment of all aspects of the child's welfare, and not merely those that concern the relationship that may be under threat….(para 10);

(3)  Whilst a change in the child's main home is a highly significant alteration in that child's circumstances, such a change is not regarded as "a last resort” …..The judge must consider all the circumstances and choose the best welfare solution ( para 10);

(4)  Cases at the upper end of the spectrum of alienation place exceptional demands on the court.  It will recognise that the more distant the relationship with the unfavoured parent becomes, the more limited its powers become…. (para 11);

(5)  Unhappily, reported decisions in this area tend to take the form of a post mortem examination of a lost parental relationship…. (para 12). 

(6)  In summary, in a situation of parental alienation the obligation on the court is to respond with exceptional diligence and take whatever effective measures are available.  The situation calls for judicial resolve because the line of least resistance is likely to be less stressful for the child and for the court in the short term…. (para 13). 

(emphasis added)

65.  In the present case, the term “child abuse” has been used freely throughout by the parties.  The Court’s attention was not drawn to any definition of “child abuse” in the authorities submitted by the parties.  In so far as this Court can find, and as seen in  the “Child Protection Fact Sheet” published in June 2010 by the National Society for the Prevention of Cruelty to Children (NSPCC), a charity in UK specialising in child protection,  there are 4 types of child abuse , namely (i) physical abuse ; (ii) emotional abuse; (iii) sexual abuse; and (iv) neglect, and as seen in the Fact Sheet, “bullying” has also been included therein[22].  It is further set out in the Fact Sheet that “physical abuse” may involve hitting, shaking, throwing, poisoning, burning or scalding, drowning, suffocating, or otherwise causing physical harm to a child. (emphasis added), and that physical harm may also be caused when a parent or carer fabricates the symptoms of, or deliberately induces, illness in a child. 

66.  In his judgment in CCL v SW FCMC 10564/2009, unrep, 17 December 2012, HHJ Bruno Chan had quoted with approval what was stated by Lord Nicholls of Birkenhead (who gave judgment for the majority) in Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80 as to the correct burden and the standard of proof to be applied in considering allegations of harm to a child[23].  To summarise, (1) any allegation of abusing or harming a child has to be proved; (2) whilst the standard or proof is on balance of probabilities, it is subject to a higher evidentiary burden in cases where serious abuse was alleged; (3) the burden of proof is on the accuser.

67.  With the above in mind, I turn to the present case.

G.2      Father’s Case

68.  As set out in Father’s Closing Submissions[24], Father’s focus on Issue (1) was essentially said to be:-

(1)  The times Mother had prevented access, and that these were typified by extraordinarily trivial or exaggerated incidents which Mother had magnified to justify her unilateral decision to sabotage access (“Incidents”);

(2)  Mother’s direct attempts to suborn N;

(3)  Mother’s parental failings.

69.  As seen in Father’s Closing Submissions, the Incidents which were relied on by Father were those in the 5 Abuse Allegations[25].  

G.3      The 1^st Abuse Allegation

70.  The Incident in the 1^st Abuse Allegation took place on 9 March 2013.

71.  According to Mother[26], when N came home after access at around 9 pm that day, Mother found that her right cheek appeared to be red with two scratch marks, and that N told her that Father hit her for lack of concentration when doing homework, and Mother said she then sent a text message to Father at 9:29 pm.  In the text message Mother stated that N told her that Father had hit N’s face hard many times and Mother asked Father whether this happened or not[27].

72.  In his reply text message, Father denied that he had hit N as alleged by Mother.

73.  Mother had produced a photograph taken by her of N of her injuries, and a copy of the text message she sent to Father.  The photograph showed some darkened area around N’s right eye, but no scratch marks were discernible[28].

74.  The Incident was not reported to the police by the Mother, nor did Mother take N for any medical examination.  Mother had produced an affirmation from a barrister Edward Chan Man Hon[29], who had been previously a solicitor and the former handling solicitor of Mother’s case.  Mr Edward Chan had made his affirmation as a factual witness for Mother at the time.  He confirmed that on 9 March 2013, he had received a call from the Mother at about 9 pm who told him that N said she was hit on the face by Father.  According to Mr Edward Chan, Mother said she first noticed two light marks on N’s face and had initially assumed that they were scratch marks, and that he then told Mother to take a snapshot of N’s face with the mobile phone and sent the photograph to him.  Mr Edward Chan claimed he could see the two marks on N’s face and that he thought N’s face was slightly red too, which was confirmed by Mother.  Mr Edward Chan said he had several telephone conversations with Mother that evening discussing what could or should be done about the matter, and that further along the conversation, N revealed to Mother that she was hit on the face many times and on the hand twice by Father.

75.  It was Mr Edward Chan’s evidence that he had covered with Mother the pros and cons of reporting the Incident to the police and that although N was only 4 years old, she would no doubt sense that something “big” was going on if police was involved, and that balancing the situation, he would prefer not to involve the police and that Mother seemed to agree with him.  Mr Edward Chan then said before the end of his conversation with Mother he told her she should make an application to court as soon as possible to suspend or vary the conditions of Father’s access pending a full investigation into the matter[30].

76.  Mr Edward Chan did not submit any witness statement in these wardship proceedings, nor was he called to give any oral evidence at the trial.

77.  On the other hand, in the present trial Father had called his friend, Dr Winnie Wong, to give evidence on his behalf.  Dr Winnie Wong had confirmed during trial the contents of her affirmation of 25 May 2020 containing her witness statement, in which she adopted the contents of her two earlier affirmations in FCMP 67/2010, the 1^st one dated 19 March 2013 and 2^nd one dated 17 November 2014[31].  

78.  It was Dr Winnie Wong’s evidence that in the evening of 9 March 2013, at about 6 pm, she was invited to have dinner with Father and N at Kowloon City and when she met N, N was sleeping comfortably and calmly upon Father’s shoulder for the first half of the dinner, and when N woke up, she had dinner together with them, and that according to Dr Winnie Wong’s observation, N seemed to be very happy and intimate with Father.

79.  Dr Winnie Wong confirmed that she was also in the car when Father drove N back to his home at Kowloon Tong to pick up his helper to accompany N back to Mother’s home.  It was Dr Winnie Wong’s evidence that she did not see any scratches, marks and/or wounds on N’s face or anywhere else on her body which was uncovered by her clothes, and that she only saw a very happy child.

80.  Mother suspended access after the Incident on 9 March 2013.  There was a hearing on 20 March 2013 before Deputy District Judge Simon Lo, as he then was, and the Deputy District Judge ordered that Father’s access be restored and further directed a SWR be submitted.

81.  The SWR was submitted by a Ms Chow Yuet Ming on 21 May 2013[32]. Mother had reported to Ms Chow her allegation in relation to the Incident on 9 March 2013 and that according to N, Father said she was spiritless when doing homework, and he hit her face several times and her hands twice.  Mother told Ms Chow that she suspected that Father was impatient in teaching N in her homework.

82.  Mother had told Ms Chow that she sought legal advice but decided not to make a report to the police nor did she take N for medical examination, and she only hoped that access could be suspended until the matter was clarified.  Mother said this was the first time that she discovered injury marks on N’s body, and that the injury on N’s face was minor, and that there was no need for any special treatment.  Further, according to Mother, the injury marks had disappeared after 2 to 3 days, but as N had some unsettling emotions such as having nightmares and not willing to go to Father’s home, Mother expressed her wish for N to undergo a psychological assessment to ascertain the impact of the Incident on N[33].

83.  According to Ms Chow[34], Father completely disagreed with Mother’s allegation.  Father showed the SWO a video recording taken on 23 March 2013, which he was recorded to have shown N a photograph of her injuries, asking N how she got those injuries, and N had said that she was “scratching” in the school bus, and that when Father asked N again on 1 April 2014 as to how she got her injuries, N gave more or less the same answer.  Father insisted he did not hit N, and that N was very fragile, there was no need for him to exercise any physical discipline, and that he had written remarks on N’s homework book on more than one occasion that that this had nothing to do with her facial injuries[35].

84.  Ms Chow in her report however stated that when she interviewed N alone on 24 April 2013, N did express to her that Father had used his hand to hit her face, and N further used her finger to point at her right face to show Ms Chow where she was hit by Father, but N was reluctant to answer other questions raised by Ms Chow.  However, Ms Chow also reported that later Father produced to Miss Chow a video recording on 18 May 2013 during which Father had asked N whether he had hit her, and N had said no and when Father asked N as to whether she had told Ms Chow that he had hit her, N said she did, but then N said it was Mother who taught her to say this and that if N did not, Mother would be angry and that Mother would threaten her that she would not be able to spend overnight with Father[36].

85.  Anyway, according to Ms Chow, Mother had told her that after the Incident on 9 March 2013, N became very attached to her and that the evening before each access, N would ask Mother would pick her up after school and that N was still mentioning about Father hitting her and that she did not want to go to Father’s home.  On the other hand, Father had shown Ms Chow more video recordings said to be taken on 1, 2, 4, 5 and 6 April 2013 respectively after N was handed over by Mother to Father for access, when N was recorded as crying and saying that she wanted to be with Mother and that she was also unwilling for Father to carry her, and was repeatedly asking Father’s helper Norma to carry her.  When asked by Father, N had said she was worried that Mother might scold her for being carried by Father.

86.  However, in her report, Ms Chow had also stated that she had spoken to N’s school principal who expressed to Ms Chow that on Monday 11 March 2013 (2 days after the Incident and the 1^st day of school after Father’s weekend access), that N’s face was clearly red then and when the school principal asked N, N refused to answer and went over to her class teacher.  Later the class teacher reported to the principal that N said Father had hit her.  Further, later that day, Mother had also called the class teacher asking the school to pay attention to N’s emotions that day and Mother also disclosed that N had been hit by Father, but thereafter N did not mention the Incident again at school[37].

87.  Anyway, Ms Chow concluded that (i) there was no police report or medical evidence in relation to the alleged child abuse by the Mother; (ii) by the time of the matter was brought to the attention of Ms Chow, it was already a number of days after the Incident; (iii) Father’s recordings were made by him unilaterally and it was difficult for the SWO to draw any conclusion from what was said in the video recordings; (iv) although N did mention Father had hit her face with his hand, she was unwilling to answer any further other questions asked by Ms Chow.  Ms Chow further pointed out that in fact N had by then undergone questioning by different people and she had given different answers to different people.  Having considered all this, Ms Chow was of the view that there was no need to investigate further into the Incident or to subject N to further questioning, as this would only lead to further distress and harm to N[38].

88.  Ms Chow reported that from her observation, there was no fear expressed by N towards Father, and that N was natural and close to Father and also her paternal grandparents.  Ms Chow was thus of the view that there was no reason to reduce access time, and in fact access time could be further increased[39].

89.  During the trial, when cross examined over this Incident, Mother said according to N, Father was teaching her mathematics and when N was not able to understand or to follow, Father became very angry and hit her face with open hand near the eye.  Although in her 5^th affirmation in FMCP 67/2010, Mother’s evidence at that time was that Father had hit N on her right cheek, due to the passage of time, this inconsistency would not mean that Mother was not giving truthful evidence.

90.  Having said this, Father is tall, being about 6 ft 2 in, and it seems that if he did hit N’s face many times with force as complained by Mother in her text message, N would have suffered quite serious injuries.  In fact, from what Mother herself had told Ms Chow, the injury was minor and that it disappeared after 2 or 3 days.  Thus, it would appear there had been some exaggeration in what N had told Mother.  Having said this, it would appear that N’s school principal still noticed the redness on N’s face on the Monday 2 days following the Incident. 

91.  Dr Winnie Wong gave evidence as a factual witness on behalf of Father.  She had made it clear that she is a friend of Father’s and that there has been no romantic relationship with Father.  What is clear is that she was not actually present at the time when Father was supervising or teaching N to do her homework, when the hitting had allegedly taken place, and that Dr Winnie Wong only saw N during dinner time and in the car when N was being driven back to Mother. 

92.  Dr Winnie Wong had said during the trial she first met Father in January 2013 through mutual friends, and that Father was most concerned about N’s health and her legs and as Dr Winnie Wong had special interests in musculo skeletal medicine that was why Father wanted her to explain to him this field.  It was also Dr Winnie Wong’s evidence that the dinner on 9 March 2013 was not the first time she met N and that the first time was at about end of February 2013.

93.  What was odd was that Father did not seem to have mentioned Dr Winnie Wong’s evidence to the SWO Ms Chow, who was directed by the Family Court to investigate into the 1^st Abuse Allegation, but, and yet Dr Winnie Wong was mentioned later by Father in June 2014 to another SWO when preparing a SWR on Father’s 1^st Variation Application in relation to N’s development in her legs, knees and back[40].  By comparison, Mother did report to Ms Chow she had sought legal advice at the time and decided not to make a report to the police upon legal advice[41], and as said earlier, Mother did produce Mr Edward Chan’s affirmation to support what she had said.

94.  Dr Winnie Wong’s 1^st affirmation was in fact made 10 days after the Incident.  Also, as Dr Winnie Wong herself had said, her main interest in N was in relation to N’s musco-skeletal issues. Anyway, in my view, as N’s facial injury was minor, the fact that Dr Winnie Wong did not notice such injury during dinner when most of the time N was sleeping on her father’s shoulder and later in the car would not necessarily mean that the Incident did not take place.  

95.  Further, although Father did not object to N undergoing any psychological assessment as indicated by Ms Chow, yet he refused to allow this assessment to be carried out by any clinical psychologist at the Social Welfare Department saying that he was then receiving counselling services from a Dr Bill Tsang at the Caritas Family Service, and yet when Ms Chow contacted Dr Tsang, he said he did not have any contact with N after the Incident until 3 May 2013 when he was told by Father[42].

96.  This Court’s attention was not drawn to any of the video recordings made by Father of N mentioned by Ms Chow.  However, as pointed out by Mother in her affidavit, during the 2012 Trial, Father had also produced various video clips, and in the Custody Judgment, the Judge had already said that he would not place any weight or any evidential value to the contents for video recordings taken by Father given the fact that they were all self serving and capable of being manipulated[43]. In fact, as Ms Chow herself had also stated, those video recordings were made by Father unilaterally and she found it difficult to draw any conclusions there from.  It was not clear under what circumstances or surroundings or in what context those video recordings were made by Father or whether they had been edited, and in any event, they had not been produced in the present trial.

97.  In Father’s 2^nd affirmation dated 25 July 2017 filed in the present proceedings, his evidence was that the 1^st Abuse Allegation was made up by Mother after he had made repeated requests to Mother for access during the Easter holidays, and that the day before Mother’s 1^st Abuse Allegation, his solicitors had written to Mother that he would be making an application to court if the parties failed to reach agreement, and that Mother made the 1^st Abuse Allegation as a pretext for denying him access to N during the Easter holiday.  Father also claimed that the 1^st Abuse Allegation took place shortly after an incident on 9 February 2013 when the police was called as Mother, along with her father and sister-in-law caused a disturbance at his parents’ home with threatening language as Mother was trying to take N away but the police told her that N wanted to stay with Father[44].

98.  None of Father’s above allegations were reported by Ms Chow in her SWR and there was no evidence that Father had mentioned such allegations to Ms Chow at the time.  Nor were these allegations of Father’s put to Mother during the trial.  I see no sufficient evidence to support Father’s above allegations.  In any event, on 20 March 2013, Father was granted defined staying access over N’s Easter school holidays in April 2013 and access pursuant to the 2011 Access Order was resumed on 21 March 2013.

99.  What is clear is that there was no fact finding hearing held at that time.  Having considered all the evidence, I find there was no sufficient evidence that Mother had made up a story about the Incident in the 1^st Abuse Allegation.  I accept Mother’s evidence that she was indeed told by N that Father had hit her face hard many times.  Further, there was no reason why N herself would want to make up such a story and in any event, I find there was no sufficient evidence that N had done so and that the Incident did take place, even though it was possible that there could have been some exaggeration on N’s part. 

100.  As I have found that Mother was indeed told by N that she was hit on her face hard many times by her father, it would not have been unreasonable that the Mother would want to suspend access until the matter had been investigated.  As the investigation showed there was no sufficient evidence of any abuse by Father, Father’s access to N was resumed after about 11 days. Further, as Ms Chow had found after her investigation, there was also no fear in N being with Father. 

101.  Thereafter as mentioned earlier, on 10 June 2013, Father’s interim weekly staying access was increased and he was also granted staying access for half of summer school holidays as defined, with leave to take N out of jurisdiction for not more than 7 days.  In fact, there was a further supplemental SWR on 25 October 2013, this time by another SWO Miss Wong Bo Ling.  According to the SWO, the access ordered on 10 June 2013 was carried out smoothly in the past 4 months[45] although notwithstanding this, and apart from access, unfortunately, there were still disputes, conflicts and misunderstanding between Father and Mother over N’s schooling, health and care etc[46]. As further seen in that SWR, N had been observed by a government clinical psychologist Dr Anita Leung to be close to both her parents but she was often caught in her parent’s conflict and this could have a long and deep effect on her psychologically, intellectually and emotionally, but fortunately at that time, the parental conflict was assessed to be not serious[47].  

102.  It was on 5 November 2013 that Father then issued his 1^st Variation Application seeking sole custody care and control of N, and Father’s access to N was later increased under the 2014 Access Order[48]. With the consent of Mother, Father was also granted staying access on an alternate weekly 7 day basis during the summer holidays in 2014[49].  

103.  The Judge had called for a further SWR as a result of Father’s 1^st Variation Application and the SWR prepared by Miss Kiu Ching Ha was submitted on 18 June 2014.  This SWR revealed that Father had since May 2014 arranged for N to receive treatment from Dr Bill Tsang.  It was indicated in Dr Tsang’s report of 27 May 2014 that N did disclose of having nightmares, and fear of being alone and of “monsters”, and Dr Tsang opined that N was suffering from anxiety and that both parents were aware that N’s anxiety originated from parental disputes.  However,  it was also stated in that report that both parents reported that the then access arrangement was smooth[50].

104.  It was also reported by Miss Kiu that during the home visit on 6 June 2014, N took the initiative to tell Miss Kiu that she wanted to live in her father’s home and only went to her mother’s home when she had the time[51].

105.  As further reported by Miss Kiu at that time, the parental conflict was not high and the parents had no dissented views over the major decisions affecting N’s welfare, and Ms Kiu opined that early settlement of the custody, care and control and access issues would definitely lower the anxiety level of N.  It was Miss Kiu’s views that although Mother was granted N’s sole custody, joint custody had actually been put into practice and that and that the parents shared the care and control of N almost equally.  Miss Kiu then recommended the parents be granted joint custody of N, and that instead of the parents arguing about the number of days in a week in which N should be spending with either parent, Father and Mother should seek counselling and therapy on co-parenting and relieving N from further distress[52].  

106.  Having considered all the above, I find no sufficient evidence N had exhibited any fear, or resistance or hostility towards Father at that time.  On the contrary, N had taken initiative to tell the SWO Miss Kiu that she wanted to live in Father’s home and only went to Mother’s home when she had the time.  There was no sufficient evidence Mother sabotaged access or N had been subjected to any parental alienation on the part of the Mother. 

G.4      The 2^nd Abuse Allegation

107.  On 1 September 2014, N commenced attending primary one at her present school, which both parents in the end had agreed to be their first choice[53].

108.  It was Mother’s allegation that Father had on Saturday 30 May 2015 hit N and injured N’s face on the lower side of her right eye, and Mother suspended Father’s access.  This time, Mother also made a report to the police.  Father made an urgent application on 4 June 2015 for access, whereupon the Judge gave directions, including that the parties to write jointly to obtain a medical report on N and suspended access temporarily until further order.

109.  Mother filed her 12^th affidavit in FCMP 67/2010 in response to Father’s application and to set out her reasons for suspending Father’s access[54]. As seen in Mother’s said affidavit, after staying access with Father from 27 – 30 May 2015, N’s maternal grandmother picked up N when N was driven back by Father accompanied by his helper, and maternal grandmother noticed that N had a “scar under her right eye”, and asked the helper who said she did not know.  When N was asked by her maternal grandmother at home, N said she was cut by the edge of a sticker.  By the time Mother got home that evening, N had already gone to sleep.  The next day, ie Sunday, when Mother asked N, N said when she was studying mathematics with Father in the morning of Saturday 30 May 2015, Father had hit her head with a stack of test papers, and that Father had also hit her head with his hands and poured tea on her face out of frustration of her performance during her studies, and then according to N, Father had told her to say that her scar was from a cut by the edge of a sticker and not to mention about the incident to anyone.  Upon hearing what N reported, Mother said she then made a report to the police.

110.  According to the Mother, the police came and N told the police what she had told Mother and that N had also said that the Incident was not an isolated event and that there had been 4 to 5 similar incidents in the past.  N was then sent to the Tseung Kwan O Hospital that night for medical examination and N told the doctor about the Incident again[55].  Following the medical examination, a police officer then took a statement from Mother.

111.  Mother was told that N would need to stay in hospital for observation for about a week.  N was admitted to the Tseung Kwan O Hospital on 31 May 2015[56] and remained there from 31 May to 10 June 2015.

112.  On 9 June 2015, N was interviewed by the police in the presence of a domestic violence SWO, which interview was video recorded. The interview took about an hour and was in the absence of Mother, and according to the Mother, after the interview the police told her that what N said accorded with what N had told Mother. 

113.  The police also took a statement from Father and according to Mother, Father was put on police bail.  As a result, there was a Multi-disciplinary Case Conference (“MDCC”) held on 16 June 2015.  The MDCC found there was no child abuse by Father.

114.  Prior to the Incident, Mother said she had agreed to Father having extra access with N on Father’s Day on 21 June 2015 but since the Incident, N had expressed her unwillingness to see Father.

115.  On 2 July 2015, the Judge directed, amongst others, a SWR in relation to resumption of access and subsequently one was submitted by the then SWO Ms Yim Heung Mui on 6 August 2015[57].  The Judge ordered Father to be granted interim supervised defined access to N at the office of the SWO until 31 August 2015.  Subsequently, by consent, Father was granted further interim supervised access until 12 September 2015.  Eventually, on 21 September 2015, the Judge ordered that Father’s access to resume pursuant to the 2014 Access Order as from 23 September 2015[58].

116.  Father’s then case can be gleaned from Ms Yim’s SWR of 6 August 2015, namely that Father insisted that he neither hit, slapped nor poured tea onto N during her revision of mathematics test papers.  Father said he brought N to swimming after revision and N appeared to be very joyful as indicated in photographs, and Father stressed that he did not notice any abrasion on N’s face before swimming and said he guessed that the abrasion might have resulted from wearing the swimming goggles[59].

117.  In his 23^rd affidavit filed herein on 8 June 2020, Father had exhibited a copy of an affirmation made by one Madam Tsang Lai Ming on 1 December 2015[60]. Madam Tsang had stated therein her daughter JJ was a friend of N’s in the same playgroup and that Madam Tsang said she met Father the first time on 31 August 2014.  She stated that on 30 May 2015 JJ and N had gone swimming at the Kowloon Cricket Club and that Father had picked her and JJ up in Kowloon Tong at about 3:30pm and that there were Father and N in the car and that N had no injury on her face.  They arrived at the Kowloon Cricket Club at about 4 pm and JJ and N then went swimming.  At about 6 pm, she took JJ and N to the changing room to change and that she had noticed that there was a red mark on N’s face and when she asked N, N had said that it was because the swimming goggles were too tight and she later told Father.  Father said he was aware of that and that later he had adjusted the goggles.  According to Madam Tsang, N was very happy throughout that afternoon.  The Court was informed that Madam Tsang had sadly passed away and was thus not available to be cross examined during the trial.

118.  I do not attach any weight to Madam Tsang’s affirmation as firstly, she was not available for cross examination; secondly, Madam Tsang’s affirmation was made some 5 months after the Incident and there was no explanation as to how or why Madam Tsang would have remembered that it was on 30 May 2015 that her daughter went swimming with JJ. 

119.  Thirdly, there was in fact no sufficient evidence that Father had mentioned to the police or MDCC at the time that he had a witness, namely Madam Tsang.  Fourthly, there was no mention in Ms Yim’s SWR that Father had a witness at the time, ie Madam Tsang.  If Father had mentioned this, most likely Ms Yim would have spoken to Madam Tsang at the time when Ms Yim was preparing her SWR on resumption of access, as Ms Yim had spoken to other persons mentioned in her SWR.

120.  Although Ms Yim had in her SWR mentioned that the [MDCC] could not rule out the possibility of the abrasion was caused by swimming goggles[61], this was not what was actually stated in the minutes of the MDCC and in fact, in so far as this Court can see, there was no reference to “swimming goggles” in the minutes of the MDCC.  All MDCC stated was that the actual cause of the injury could not be ascertained. 

121.  In the Father’s 1^st affirmation filed in these proceedings, Father had produced photographs in “CCMJ-3” which on the exhibit cover page, they were stated to be dated 30 May 2015.  However, the actual date on each of the 3 photographs exhibited was “31/05/2015”, and the respective time taken was 16:14, 19:57 and 19:58 and in fact N and JJ were seen holding some sort of a trophy[62].

122.  As seen in the medical report of the Tseung Kwan O Hospital, it was on 30 May 2015 that N was first admitted to the AED ( Accident and Emergency Department) for suspected child abuse and that through the AED N was then admitted to the hospital to stay on 31 May 2015.  Thus, those photographs of N exhibited by Father could not have been taken on 31 May 2015.  It is not quite clear why the dates on those photographs were not correct.

123.  Having considered all said above, I also do not attach any weight to N’s photographs bearing the date of 31 May 2015.

124.  In the medical report, under “Description of injury” it was stated “a 1 cm in length linear abrasion inferior to right eye”.  Under “Medical Opinion and Diagnosis” was stated “Suspected NAI” (non-accidental injury)[63].

125.  As seen in the minutes of the MDCC of 16 June 2015, the MDCC was held after receipt of referral by the Family and Child Protective Services Unit (FCPSU) for investigation into “suspected child abuse incident”[64]. The MDCC was attended by a Dr Ng from Tseung Kwan O Hospital who tabled a medical report and a nursing report and who had highlighted the findings therein, and further Dr Ng had supplemented his/her evidence by showing a photo of the injury on N’s face.  A Ms Carol Wong Man-Yan of the Hong Kong Police Force was also present, amongst others, who highlighted N’s disclosure in the video-recorded interview taken by the police on 9 June 2015.

126.  The MDCC members concluded that although there was an abrasion on N’s face, the actual cause of injury could not be ascertained and that based on the members’ knowledge of the father’s personality, he was not an aggressive and impulsive father and that he had genuine concern and love for the girl.  The level and nature of risk to the girl was thus considered by the MDCC members to be low”[65]. The MDCC members then considered that the case could not be concluded as a child abuse incident.  As said earlier, there was no mention by MDCC of Father’s allegation of swimming goggles.

127.  In his 1^st affirmation filed herein, Father had produced a copy of the Judge’s decision of 21 September 2015 in which he ordered resumption of Father’s access pursuant to the 2014 Access Order.

128.  The hearing before the Judge were based on submissions and arguments made by Counsel on affidavit evidence.  What MDCC concluded was that case was not a child abuse incident.  The Judge found no sufficient evidence to support any child abuse by the Father and concluded that in the absence of any finding or conclusion of child abuse, previous access should be resumed.  There was no cross examination of the parties at the hearing.  There was no actual factual finding by the Judge as to whether N actually did tell Mother that she was hit by Father as alleged by Mother, nor was there any actual finding that Mother had made up the entire story. 

129.  What could be seen from Ms Yim’s SWR on 6 August 2015 was that N had expressed no fear of the Father during access and later in a further memorandum from Ms Yim dated 1 September 2015, even though N was anxious or tense initially when seeing Father, she warmed up and became relaxed.  It was under those circumstances that Ms Yim had recommended resumption of access as before the Incident and this was what the Judge ordered.

130.  In his 1^st affirmation in the present proceedings, Father had claimed that he had explained to Mother at the time that N’s swimming goggles probably caused the “minor red mark under her eye” but that notwithstanding his explanation, Mother still made a report to the police[66]. Father had described Mother’s allegation was a “false allegation” and/or “unfounded allegation”[67].

131.  Father was clearly alleging that Mother had made it all up, but as I have said earlier, there was no such finding by the Judge at the time. Further in Mother’s 14^th affidavit filed in the present proceedings, she had produced copies of her 5^th, 8^th, 10^th, 12^th,15^th,16^th, and 18^th affidavits filed in FCMP 67/2010[68], and Mother had confirmed on oath during the present trial the truth of her 14^th affidavit which included what Mother had said in relation to what N had told her regarding the Incident in the 2^nd Abuse Allegation in Mother’s 12 affidavit in FCMP 67/2010.

132.  In his 1^st affirmation , Father claimed that Mother’s unfounded allegation also resulted in “serious alienation”[69].  In his 2^nd affirmation filed in these proceedings, Father had described what N had was “only a minor skin irritation”[70].  Father further said that from what some parents at N’s school told him, he verily believed that “Mother was pressuring the police to issue criminal charges against me to cut my access with our daughter off completely and then request for additional child maintenance[71]”.

133.  First, it was not merely  “minor red mark” or a “minor skin irritation” as described by Father.  During the trial, when asked to confirm that N did not have any injury on her face when she started staying access with Father on 27 May 2015 and that she had one after the staying access, Father said he would not term it as an injury.  His answer was clearly evasive.  As mentioned earlier, it was clearly stated in the medical report under “Description of injury” that there was a 1cm in length linear abrasion inferior to N’s right eye found upon medical examination.  Thus, the doctor had described it as an injury.

134.  Secondly, there was no sufficient evidence that Mother had exerted any pressure on the police to bring charges against Father.  Ms Yim had reported that on 16 June 2015, all members of MDCC concluded that it was not a physical child abuse case but she went on to say “Meanwhile, the police was seeking legal advice on how to dispose [of] of the case”[72]. Thus, it seemed that notwithstanding the MDCC’s conclusion, the police had to seek its own legal advice.  In fact, as seen in the MDCC minutes, it was highlighted by the chairman of the MDCC that the police although present would remain neutral as criminal investigation by police was still in progress at the date of the MDCC.  It was Mother’s evidence in her 16^th affidavit filed in FCMP 67/2010 on 21 December 2015 that she was later told by a Ms Wong from the police, as well as a SWO Mr Ho (probably the Student Guidance Officer serving N’s school Mr Ho Chi Wing who was present at the MDCC),  the police decided not to prosecute Father but they had warned Father not to discipline N in the way he did[73]. There was no sufficient evidence to contradict what Mother had said.  

135.  Thirdly, at the time of the 2^nd Abuse Allegation, the trial on financial provision had already been completed and whether Father’s access to N was cut off or not would have nothing to do with whether Father should pay additional maintenance for N, and this allegation of Father’s was also not put to Mother during cross examination in the present trial.

136.  Fourthly, as to Father noting that the 2^nd Abuse Allegation was raised shortly prior to the preparation of a SWR in connection with his 1^st Variation Application, it is not clear what he was trying to say or imply.  According to Ms Yim’s SWR of 6 August 2015, the updated report on Father’s 1^st Variation Application was called for by the Judge on 10 June2015 which was after the 2^nd Abuse Allegation[74], and this appeared to be by agreement of the parties and that it was thereafter, on 2 July 2015 that the Judge called for a further report in relation to resumption of access.  In fact, even though Ms Yim in her report on resumption of access was in favour of Father, it was Father who then decided to postpone his 1^st Variation Application and expressed that he considered it not necessary to discuss his views on his 1^st Variation Application with Ms Yim[75].  The reason as to why he decided to postpone his 1^st Variation Application was, according to what Father told Ms Yim at that time, N had become a different child with obvious pressure and anxiety[76].

137.  In the present 15^th affidavit herein, Father’s evidence was that he withdrew his 1^st Variation Application in 2015 “for the mental well-being of [N] when he learned from the government psychologist’s report for MDCC, which investigated the unfounded 2^nd Abuse Allegation made by [Mother], that [N] was so distressed and in fear of her Mother’s punishment and in fear of displeasing her Mother for liking and meeting her Father”[77].

138.  However, it was not quite clear as to which government psychologist report Father was referring to.  There were two psychologist reports mentioned in the MDCC minutes, one by Ms Irene Cheung of Yaumatei Child Psychiatric Centre dated 15 June 2015 on N and one by Ms Mandy Chan from the Kowloon Hospital Psychiatric Department on Father himself.  Ms Irene Cheung’s report concerned a referral by the Student Health Service Centre prior to the 2^nd Abuse Allegation on N’s anxiety disorder with chronic stress caused by family problem.  Although Ms Cheung did state that N reported that she was afraid of being punished by Mother and that N had become tensed up and looked distressed when she mentioned that meeting her father might displease her mother, but N had elaborated that she had to be cautious in what she said in order to avoid upsetting either side of her parents.  N further admitted to Ms Cheung that she was being put in a difficult position, and that Ms Cheung had considered it important for N’s parents to seek professional help in order to facilitate communication between them.

139.  As for Ms Mandy Chan’s report on Father himself, it was stated in the MDCC minutes that in gist, Ms Mandy Chan’s preliminary impression was that Father had adjustment episode over the custody issues and that her work focus would be on [Father’s] mood regulation and enhancing the father-daughter communication.

140.  In any event, it was clear that in August 2015, according to Ms Yim, Father had only wanted to postpone his 1^st Variation Application (which was in fact not formally withdrawn until 8 March 2016).  It was also clear that at the time Father did have the opportunity to seek a fact finding hearing in relation to the 2^nd Abuse Allegation but he did not.

141.  During the present trial, Mother had said N told her at the time that it was a slap by Father using the work sheets and that Mother accepted that maybe it was the paper that had grazed N’s face.  Later, when Mother was asked whether she took what N said at face value, she had said she told N not to lie as she was going to call the police.  Further, when she was asked why she did not restore access when the MDCC concluded there was no child abuse, Mother had answered that she was told by the experts at the MDCC that even though it was concluded that it was not a child abuse incident, it did not mean that the Incident did not happen or Father did not hit N, and therefore, she still had concerns over access. 

142.  Under cross examination, Mother had made it clear that she would not accept that Father did not hit N on that occasion.  It was submitted on behalf of Father in Closing Submissions that the MDCC found that this was not a case of child abuse and then in brackets “(M’s case that the incident was serious whilst not actually being child abuse is not supported by the reports or the actions of the authorities who found the goggles explanation entirely credible).”[78] As said earlier, there was no mention by the MDCC of swimming goggles and it was not clear which authorities had found Father’s goggles explanation entirely credible, nor was it clear what Father’s submissions were based on.   

143.  The MDCC minutes of the 2^nd and in fact also the 3^rd Abuse Allegations were not even produced to this Court or included in the trial bundles by Father nor were N’s medical reports at the time, and this Court had to direct these be produced after the trial. 

144.  Anyway, it was not actually put directly to Mother that she had completely made up the 2^nd Abuse Allegation. 

145.  In fact, in the 1^st OS Report dated 19 March 2018 which was prepared at that time by Ms Juliana MK Chan on behalf of OS[79], at a meeting in the afternoon of 16 March 2018, N had told Ms Chan that she remembered Father taking her to Taiwan for holiday when she was in kindergarten, and that she got on well with the Father until several incidents happened since Primary 1, and that N had said she started to feel unhappy and to dislike Father after being hit by him when he was not happy with her school performance, and she remembered that he used the examination paper to hit her head and splashed tea on her.  N had also explained that Father could teach her slowly with patience if she did not understand.  Ms Chan had reported that it was N who took the initiative at the beginning at the meeting to explain how she felt about Father, about the few incidents that made her dislike Father and reasons why her chest felt painful[80].  At the meeting, N was alone, and she was not accompanied by any party during the meeting, save that Ms Chan’s assistant was present in the meeting to take notes.  As reported by Ms Chan, N did not appear to be nervous, she talked and responded well to questions asked of her, and she was not shy in expressing her feelings and views.

146.  What is clear from the MDCC minutes was that, as said earlier, the matter was referred to MDCC for consideration by the Family and Child Protective Special Unit (FCPSU) and there was a recorded interview of N by the police.  Further, a Dr Ng from the Tseung Kwan O Hospital had tabled the medical report of N and showed photographs of her injury.  Although N took the initiative to tell Ms Chan about being hit by Father and why she started to dislike Father, there was no evidence that N had been coached by Mother or any one.

147.  Notwithstanding the Father’s denial, having considered all the evidence, I do not find that there was sufficient evidence that Mother had made up a story about the Incident, and that I find that N did tell Mother that she was hit by Father on her head by some examination/test paper/s.  I also find that there was no sufficient evidence that N had lied to her mother or made up a story about the Incident.  In fact I find more probable than not, as Mother had said to the SWO Ms Yim and also during the present trial, Father had poor temper control, and that N was indeed hit by Father on her head by some examination/test paper/s on that occasion.  However, as Mother herself had also admitted at the trial, it could be the paper that had grazed N’s cheek accidentally and caused an abrasion.  There was no sufficient evidence that Father had intended to cause any injury or harm to N, and I accept that there was no sufficient evidence that the Incident was a child abuse and there could be exaggeration on N’s part.

148.  The Incident and N’s hospitalisation and also the investigations of the police and the MDCC came at a time when N was going to have her examinations.  As a result, N was not able to take part in her examinations properly and according to Father, N did poorly in her examinations and N was the only student in her class who had to repeat primary one.  Father claimed that N’s self-esteem and self-confidence was deeply hurt and he seemed to be blaming Mother for this.

149.  I accept that N’s hospitalisation and the subsequent police and MDCC investigations would have distracted N from concentrating on her studies or preparation for her examinations and certainly did not help her performance at school.  However, I do not think one can simply point the finger at Mother, as Father had done, as the evidence showed that N had not been doing well in her first term in primary one.  This can be seen in her school report for 2014-2015[81]. Further, as reported by the Student Guidance Officer serving N’s school, Mr Ho Chi Wing, to the MDCC members, N was performing below average academically in primary one[82]. In fact, the MDCC members had also raised their concern as to whether N was suffering from attention deficit disorder or dyslexia in view of N’s substantial lagging behind academically[83].

150.  The Mother said she could not recall whether she had asked Father about the Incident before calling the police.  Father said she did and he tried to explain the injury was caused by the swimming goggles.  In any event, the relationship between the parties was, and in fact continues to remain, one of deep mutual distrust.  Whether Mother did or did not ask Father about what she said N told her, as she had said, she would not have accepted Father’s explanation of swimming goggles.  In any event, Father had denied hitting N, and alleged Mother made a false allegation against him, which he has continued to do until the present.  The deep mutual distrust between her parents certainly did not help N. 

151.  The evidence showed that at the time Father had been receiving psychiatric and clinical psychological treatment at the Kowloon Hospital since March 2015, and he had also been receiving counselling service from medical social service unit of the Kowloon Hospital[84].  Further, N herself had also been assessed by the Student Health Service Centre as having anxiety disorder with chronic stress caused by family problem and she was referred to Ms Irene Cheung at the Yaumatei Child Psychiatric Centre for an assessment on 29 May 2015 during which Father and N were seen in the session.  This was only one day prior to the Incident[85].

152.  As said earlier, N had reported that she was afraid of being punished by her mother.  The conclusion of the clinical psychologist Ms Cheung at the time was that although [N] showed anxiety due to dilemma of parent conflicts and low mood due to anticipation or experience of separation from her father, these symptoms did not reach a clinically significant level.

153.  Ms Yim had arranged for 3 access sessions for Father and N after the 2^nd Abuse Allegation, ie on 20 July 2015, 27 July 2015 and 3 August 2015.  The 1^st and 2^nd access took place in the playroom of the Social Welfare Office, and for the 3^rd access, Father took N out walking around in a park and a shopping plaza.  Before the 1^st access session, N “initiatively” (sic) expressed her fear to meet Father when N saw Ms Yim alone, as N reasoned that Father had requested her not to disclose his beating behaviours on her to others but she did it and so she worried that the Father would be angry with her and would take her away from Mother[86].  What N told Ms Yim was in fact consistent with what Mother had said in her 12^th affidavit in FCMP 67/2010, namely that N was worried about seeing Father again especially when he found out that she had told Mother about the Incident[87].

154.  Anyway, N did agree to meet Father in the presence of Ms Yim, and although N appeared to be anxious, she warmed up after about a couple of minutes during the 1^st session.  This was the same for the 2^nd session although N had needed more time to warm up. However, for the 3^rd session, N appeared to be tense and nervous and required the longest time in warming up, and further after the access, N expressed that she did not want to meet Father but could not further elaborate on it.

155.  As reported by Ms Yim, N could not explain why she showed a happy face during the 1^st and 2^nd access sessions and that she was relaxed after seeing Father, but then she then changed her reaction and showed anxiety towards Father during the 3^rd access session.  Further, according to Ms Yim, N only repeated to say she did not want to see Father or return to his home but when N was asked her will if access were to resume to normal, N had kept silent[88].

156.  Thus, N had not really objected to resumption of access.

157.  As Ms Yim had concluded, the Incident seemed to be a parenting issue and suspending the contact between Father and N did not help in improving the family relationship and to the contrary, “it spotlighted [N] and pulled her in between her parents’ conflict”.  It was Ms Yim’s recommendation that the usual access was to resume as far as possible but Father was highly suggested to receive continual counselling and medical treatment from the Kowloon Hospital Psychiatric Department[89].

158.  Ms Yim had supervised two further access sessions on 27 and 28 August 2015.  Again, N was more relaxed after a while.  When N was interviewed alone, N had expressed to Ms Yim her fear to meet Father as she was worried that Father would take her away from Mother.  However, as reported by Ms Yim, Father was positive and humorous when interacting with N and that Mother was also cooperative in managing the handover.  Ms Yim reported that Mother took N for access on time, gave proper reassurance to N before the access and was pleasant and polite during the handover process after the access[90].

159.  Eventually, access under the 2014 Access Order was resumed on 21 September 2015 and that later, the SWO Mr Cheng had reported that access after resumption was smooth[91]. 

160.  To summarise, according to Ms Irene Cheung, N had expressed anxiety over anticipation or experience of separation from her father and according to Ms Yim, N was also worried about Father taking her away from Mother.  Although N needed time to warm up during her access sessions with Father, there was no sufficient evidence that after the 2^nd Abuse Allegation, N had shown resistance or hostility towards Father, nor was there any sufficient evidence that N had been subjected to any psychological manipulation or any parental alienation or any emotionally abusive process on the part of Mother.  

G.5      The 3^rd Abuse Allegation

161.  This Incident in fact was about a month after Father’s access to N under the 2014 Access Order was resumed.  The Incident took place on Saturday 24 October 2015, when N returned to Mother’s home at 9:30 pm after staying access with Father.

162.  According to Mother’s evidence in her 15^th affidavit filed in FCMP 67/2010 on 12 November 2015, N told her that when she was with Father before lunch and when she was doing her English revision under Father’s supervision, over whether the alphabet “s” should be in capital or not, and as N did not write it to Father’s satisfaction, he impatiently hit the top of her head many times, at first not too heavily, but that the last two times were heavy, and that thereafter, N had felt dizzy but dared not tell Father.  According to Mother, as N complained she was feeling dizzy, Mother then took her to the AED at Tseung Kwan O Hospital and the doctor there reported the matter to the police.  The police later came to investigate, and N underwent a blood test and a brain scan.  Mother said she was advised by the doctor that as N had to undergo a recorded interview with a SWO, N had to remain temporarily in hospital.

163.  Father’s access was again suspended.  On 30 October 2015, Father went to the hospital to see N.  According to Mother, during the visit which was held in the presence of the then SWO Miss Ho, N showed unwillingness to see Father and N was down emotionally and showed anxiety and nervousness, and that after Father left with Miss Ho, N had embraced Mother and cried loudly saying she was scared as Father was horrible and that he was hypocritical as in presence of others, he would behave in a friendly manner but he was different when he was alone with N[92].

164.  A MDCC was again held on 9 November 2015, and the members concluded that there was no child abuse.

165.  In Father’s Closing Submissions, it was submitted that “The MDCC did not accept what [N] said as alleged by [Mother]; instead MDCC said [N’s] words were not clear”[93]. 

166.  It was not clear what the above submissions were based on.  First of all, as mentioned earlier, the actual MDCC minutes were not exhibited by Father or produced by the Father during the trial.  Second, the Father had at that time only exhibited a letter dated 7 December 2015 from the Social Welfare Department in his 37^th affirmation (FCMP 67/2010)[94], informing the parties that the members of MDCC were of the view that the Incident was not a child abuse case, but MDCC had made a number of recommendations including that (i) N should receive clinical psychological services and any follow up services; (ii) Mother’s case was to be followed up by the Tseung Kwan O (East) Integrated Family Service Centre; (iii) Father’s case was to be followed up by the social worker at the Kowloon Hospital Psychiatric Department; and (iv) N’s parents to continue to receive parenting counselling services as agreed by them.  There was nothing in that letter in relation to whether MDCC did or did not accept what N was as alleged by Mother or that MDCC had found that N’s words were not clear.  It was stated in the letter that the conclusion of MDCC was not binding on the police in their investigation or decision as to whether to lay charges against any one.  Third, there was no evidence in the SWR submitted by Mr Cheng on 24 February 2016 that the MDCC said N’s words were not clear[95].

167.  As seen in the minutes of MDCC subsequently produced, Ms Carol Wong Man-yan of the police was present at the MDCC and had highlighted N’s disclosure in the video-recorded interview on 29 October 2015.  Dr Wan of the Tseung Kwan O Hospital was present at the MDCC and he had under the “Incident of injury” stated that “hit by father with bare hand over the head.  [N]] was preparing for school tests while stayed over with [Father] over weekends.  After returning to home with [Mother] she reported being hit by [Father] with bare hand over the vertex of her head twice.  She felt dizzy with headache afterwards.  There were no vomit or loss of consciousness.  [Mother] had then reported to the police and brought [N] for medical attendance”.  It was reported by Mr Wan that N’s symptoms of headache and dizziness subsided soon after admission, and that she remained stable in ward.

168.  What the MDCC members found was that “though [N] gave a verbal account on her discomfort, the actual cause of the discomfort could not be ascertained”.  This was why the members considered that the case could not be concluded as a child abuse incident.

169.  What thus appeared from the medical report and the minutes of MDCC would be that N did have symptoms of headache and dizziness on admission, and that she did give a verbal account for her symptoms but the actual cause of her symptoms could not be ascertained.

170.  Again, if N did tell Mother as alleged, it would not have been unreasonable for Mother to be concerned and to take her to hospital for examination and to report to the police.  Mother had further applied on 12 November 2015 to vary the access terms of the 2014 Access Order to supervised day access.

171.  On 9 December 2015, the Judge ordered that Father’s access to be temporarily replaced by supervised access at the office of the SWO.  The Judge called for a SWR which was submitted by Mr Cheng on 24 February 2016[96].  As reported by Mr Cheng, in September 2015, N repeated primary one at her school and that her academic performance had since improved and her conduct was good.  She was the class prefect during the first term.  However, her school counsellor expressed that during her first term, N had shown unhappiness over access problems and had burst into tears during classes but the situation had improved after counselling.  It was also reported that when the counsellor met occasionally with her and asked her about access, N did not want to say much[97].

172.  Mr Cheng further reported that supervised access began on 23 December 2015 and that Mother would leave after bringing N to the social welfare office and later Mother would return to pick up N.  Mr Cheng reported when Mother brought N to the social welfare office, N would stay close to Mother and did not want her to leave, but after awhile, she did let Mother leave.  However, when Father appeared, N would show fear and would shout but after a few minutes, she would calm down but would sit on the sofa furtherest away from Father and N also told Father not to speak.  N said she would not talk to Father or reply to his questions.  N had also cried during access and said she did not want to see Father.  She had said she did not like Father asking her during access why she was unhappy and angry and often apologised to N, and all this had troubled her.  N also refused to address Father as father, but it seemed gradually from end of January onwards, she had become calmer[98].

173.  Mr Cheng reported that N had expressed to him that she did not want to see Father because she was afraid of Father and even though Father did not scold or hit her during those access sessions, she was still afraid of him.  N said that Father had apologised to her during access and that he wanted know why she was angry at him and that this had troubled her.  She repeatedly said she would not forgive Father as after apologising, Father would 重犯/“repeat the offence”, and he would not change.  When Mr Cheng asked her for her views over access at Father’s home, N said tearfully that she did not wish to see Father[99].

174.  Mr Cheng reported that according to the assessment of Kowloon Hospital Psychiatric Department, Father’s condition had improved and that there was no violent behaviour towards N and he would not harm N, and also there was no risk of Father harming N.  Thus, notwithstanding what N had said to Mr Cheng, it was Mr Cheng’s conclusion that Father posed no danger to N and Mr Cheng then recommended to restore the “normal access”, although initially N could be arranged to be accompanied by someone she would trust or a helper. Mr Cheng’s view was also shared by N’s then government clinical psychologist Mr Lam.  

175.  Father had applied to restore regular access as provided in the 2014 Access Order.  The Mother’s application and the Father’s application were fixed for a two day trial before the Judge which took place on 28 and 29 July 2016 (“July 2016 Trial”).  The parties were not called to give oral evidence nor were they cross examined.  Only Mr Cheng gave oral evidence and he was questioned by both sides.  As mentioned earlier, the Judge later handed down a judgment dated 30 September 2016 and dismissed both Mother’ application to vary access and Father’s application to restore regular access, and instead made the Reasonable Access Order.

176.  As also mentioned earlier, Father applied for leave to appeal against the Judge’s Reasonable Access Order which was eventually granted by the Court of Appeal and in the meantime, Father also issued the present wardship proceedings.  As seen in the Reasons handed down on 18 October 2017 by the Court of Appeal in HCMP 1269/2017, the Court of Appeal did not find it necessary to make any further order in relation to access as by then, this Court had made the May 2016 Access Order supplemented by the September 2017 Access Order.

177.  It is clear from the judgment of 30 September 2016 that the Judge was of the view that it was not in N’s best interests to restore automatically the arrangements in the 2014 Access Order, as by the time of the July 2016 Trial, it was some 2 ½ years since the 2014 Access Order which was made when N was still in kindergarten.  By that time, N’s circumstances had changed, and she was in primary school and her schooling, activities and other related factors had to be taken into account when considering access[100].  The Judge had also said he had difficulty to understand how the Court could make its own findings of fact on the Mother’s child abuse allegations simply by reference to the findings of other professional bodies such as the MDCC but without actually conducting a trial on the evidence[101].

178.  Irrespective of whether the Judge was correct or not to make the Reasonable Access Order in default, I share his above views, in particular that notwithstanding Father had had various solicitors and counsel acting for him, there was no application by Father at the time to seek a fact finding hearing after each of Mother’s 1^st, 2^nd and 3^rd Abuse Allegations.  Further, the Judge clearly did not find it in N’s best interests to simply restore the access terms set out in the 2014 Access Order.

179.  Father had in the present trial called 4 witnesses, who were said by his Counsel to be present during the day of the Incident of the 3^rd Abuse Allegation[102], namely his brother Daniel and 3 domestic helpers, Norma and Jennifer working in Father’s household and Sini working for Daniel.

180.  Daniel had made an affirmation on 27 November 2015[103] which was exhibited in his 2^nd affirmation filed in these proceedings and which contents he confirmed during the trial.  However, what he said in his then affirmation was that he was in his shop at Franki Centre, Kowloon Tong on 24 October 2015, the day of the Incident.  According to Daniel, at around 4:40 pm that day, Father drove N to his shop to pay him a visit and that N was walking around in his shop for a few minutes and later his helper Sini picked her up and took N over to his wife’s care.  His wife then drove his son Dewy, his helper Sini and N to the Broadcast Drive Playground.  According to Daniel, while at his shop N appeared to be her normal, happy self and exhibited no signs of injury.

181.  Under cross examination, Daniel confirmed that he only saw N a few minutes inside his shop on 24 October 2015 and that he did not know what N was doing or what had happened to N earlier during the day.

182.  Daniel’s helper Sini also made an affidavit of 27 November 2015 which was exhibited in her 2^nd affirmation filed herein[104] and which contents she confirmed during the trial.  Sini’s written evidence was that Daniel’s wife drove her son Dewy and Sini to Daniel’s shop where they picked up N, and then they went to the playground where Dewy and N played soccer, slide and ran around.  N did not have any fall or incur any injuries while she was at the playground, and N did not complain about feeling dizzy or that her head hurt and was happy the entire time.  They were at the playground for about an hour and Father then picked up N from the playground and delivered N home.

183.  Although under cross examination, Sini’s evidence initially was that N was picked up by Daniel’s wife and driven to the shop, she later clarified that she only went to pick up N from the shop and that she only saw N for about an hour at the playground, and that she did not know what had happened to N earlier.

184.  Norma and Jennifer were domestic helpers employed by Father’s mother (“Madam Wong”). 

185.  Norma had made an affirmation on 30 November 2015 which was exhibited in her affidavit filed herein[105] and which contents Norma had confirmed during trial. Norma was first employed by Madam Wong in 1991 until 1996 and she then went back to the Philippines for 5 years.  She returned to Hong Kong again in 2001 and has worked for Madam Wong until the present.  Her main work duties were to take care of Madam Wong and to do cleaning of the house.  She had said when N stayed in Father’s house at that time, N would sleep with Madam Wong on one bed, whereas Norma would sleep in a separate folding bed, also in Madam Wong’s room.  Norma was also the helper who would usually accompany Father when he made the trip to drop off N at Mother’s residence after access.

186.  The house is about 5,000 sq ft[106], and has a ground floor, and then 3 more floors and a rooftop, and also a small patio in the rear of about 100 sq ft.  Each floor is about 1,000 sq ft.  There are 4 bedrooms, one occupied by Madam Wong, one by Father’s elder brother and sister-in-law who work in Mainland China when they are in Hong Kong, and one is occupied by Father and one for N to live and play in.  The living room, the dining area, the kitchen and the helpers’ room are all on the 1^st floor.  Madam Wong’s bedroom is on the 3^rd floor.

187.  It was Norma’s evidence that normally when N had breakfast on the 1^st floor, it would be Father and the other helper who would be assisting them as Norma would be on 3^rd floor assisting Madam Wong.

188.  It was Norma’s evidence in her affirmation that on 24 October 2015, after breakfast, Father started to do revision of school work with N and that they went out before 2 pm.  Norma said she did not hear N cry or Father shouting at her when she was at the house and that N was very happy that day and never complained about having a headache or of being dizzy.

189.  Under cross examination, Norma had admitted that she was not with N all the time on 24 October 2015.  As it was also Norma’s evidence that she would normally be assisting and caring for Madam Wong on the 3^rd floor in the morning, she could not have known what was going on on the 1^st floor.

190.  As for Jennifer, in her present affidavit, she had produced a copy of her affidavit made on 30 November 2015 and she had confirmed the contents thereof were true[107]. Jennifer started working for Madam Wong in April 2015 and her duties were mainly cleaning and helping out at the house.  Jennifer had said in her affidavit that on 24 October 2015, Father and N stayed at the studying table in the living room most of the time, and that N was happy the entire time.  She had said as she was cleaning the house during the day she was mostly in the living room and the kitchen, and that if Father had shouted at N, she would have heard it.  She did not hear N cry.

191.  Under cross examination, Jennifer had said that sometimes when Father and N were in the living room, and even when Jennifer was in the kitchen, she could still see N.  Jennifer also said when N woke up in the morning, after brushing teeth and washing face, N would have breakfast and thereafter she would be staying in the living room, and she would play and then stay at the “studying table”.  Jennifer had said Father and N would start revision of homework maybe around 10 am and that after lunch, they would start revision again until around 2 pm.

192.  Jennifer maintained that during the 4 hours between 10 am and 2 pm, she was around but she accepted during cross examination that she did not have her eyes on N all the time, as she had to prepare food and would move away, and she further accepted that there were times that her eyes had left N during the revision.  It was Jennifer’s evidence that N had a big smile on her face when she said goodbye to Jennifer that day.

193.  Of all the Father’s 4 witnesses, only Jennifer was on the same floor as N when she was doing revision of her school work with Father, and even Jennifer accepted that she did not have her eyes on N all the time.  As the 1^st floor is about 1,000 sq ft and Jennifer was often in the kitchen, and even with the door open, it did not seem probable that she would be watching N throughout the 4 hours.  The fact that N did not cry out, or that N was a happy child when she went out with Father or at the end of access that day did not mean that she had not been hit on her head by Father sometime earlier.  

194.  Further, even though Norma and Jennifer are not directly employed by Father, they are working in the Kowloon Tong Premises and although they are said to be employed by Father’s mother, they invariably also work for Father, and thus their evidence has to be viewed in such light.

195.  As seen above, all 4 witnesses were not in fact present with N during the Incident and whether N was happy at the playground or at end of access did not mean she had not been hit by Father earlier on or that she did not have a headache or dizziness later.  In Father’s 1^st affirmation filed herein, he had said that the 3^rd Abuse Allegation was another serious obstruction to N’s access, and according to him during each of the Saturday access periods since 2 April 2016, N became her normal self within no time, and she was very happy, relaxed and playful and close to and getting along very well with Father and also her cousins, her grandparents, her aunts, her uncles and nephews, and that N was only seen to be anxious when Mother was in close proximity.

196.  Father had also produced a transcript of the oral evidence of Mr Cheng[108] to support his case but he had cherry picked part of Mr Cheng’s evidence.

197.  It can be seen from the transcript that when Mr Cheng was asked by the Judge about the reasons for N’s negative emotion towards Father during the supervised access following the 3^rd Abuse Allegation, Mr Cheng had made it clear that the negative emotion was largely due to the “parental conflicts” which had put N in “loyalty conflict” although Mr Cheng did say that “loyalty conflict” did not necessarily happen with both parents and instead in many cases, this happened one-sided[109].

198.  It was not Mr Cheng’s evidence that this was as a result of any parental alienation or any psychological manipulation on Mother’s part.  In fact, as admitted by Mr Cheng when asked by the Judge, he agreed that it was every one’s guess as to whether Father had hit N or not[110].

199.  As said earlier, it appeared from the medical report that N did have the symptoms of headache and dizziness on admission to the hospital and there was also N’s own disclosure in the video-recorded interview on 29 October 2015.  The fact that MDCC found that the actual cause of N’s discomfort could not be ascertained did not mean that Father had not hit N’s head with bare hand.  There was no sufficient evidence that Mother had made up the Incident in 3^rd Abuse Allegation or that it was “timed to deprive [the Father] of access with [N] particularly over Christmas and Chinese New Year”, as alleged by the Father in his 2^nd affirmation filed herein[111].

200.  Further, the MDCC minutes did show there was a verbal account from N for her symptoms.  There was no reason as to why N would lie to her mother and having considered all the evidence, I find there was no sufficient evidence that N had made up a story or lied to her mother, and that N did tell her mother that Father had hit her head with bare hand.  I also find more probable than not that Father did hit N on her head.  Having said this, I find there was no sufficient evidence that Father hitting her head was the cause for N’s headache and dizziness and again there was probably some exaggeration on part of N.

201.  In any event, by end of January 2016, according to Mr Cheng, he was not present during most of the access sessions and that during the last access before Mr Cheng submitted his SWR, although N said she would not talk to Father, they did speak to each other and that N was able to calmly carry out the access with Father in the games room.

202.  As mentioned earlier, N had provided to Mr Cheng at the time her reasons as to why she did not want to see Father.  This had included that Father was always apologising to her and this had troubled her and also after apologising, Father would “repeat the offence”.  These reasons were proper reasons.  I do not find that there was sufficient evidence that the relationship between N and Father was not working by reason of N being subjected to any parental alienation or any psychological manipulation on the part of Mother, or that there had been any emotionally abusive process on the part of Mother.

G.6      The 4^th Abuse Allegation 

203.  It was Mother’s accusation that on 21 January 2017, Father had frenziedly scolded N during his access, refused to bring the helper along when going out with N, and frightened N extremely by suddenly braking the car while driving on the road that day and that it had caused intense fear and anxiety in N.  Further, Mother alleged that N cried hysterically that night and refused to see Father again and that on the days that followed, Mother alleged that N became emotionally unstable and exhibited even more fear and anxiety. 

204.  Father denied what was alleged by Mother and alleged Mother had unilaterally denied access despite both the holiday access order and interim access orders in place.  Father also said towards the end of access that night, it was Daniel who drove N back to Mother’s place together with Dewy and Sini in the car, as Father was sending his mother, Madam Wong, to hospital, and that they all found N very happy, loud and playful during the journey home without any sign of anxiety and that there was no way that N had returned to Mother’s place crying hysterically.  Father had also produced photographs to show how N was happy during access.

205.  In Daniel’s 1^st affirmation filed herein, his evidence was that N, Father and his family had dinner at his parents’ house on 21 January 2017, and that N was very happy to see them and she played with Dewy very happily when they saw each other.  Daniel confirmed that although usually, it would be Father who would drive N back to Mother’s home, that day as Madam Wong was crucially ill, and Father had to send her to hospital, and thus, it was Daniel who drove N home, and that Dewy and Sini were also in the car, and that N exhibited no signs of anxiety, worry or fear but a very lively, innocent and happy child.  Daniel had said he would not believe that N would not want to see Father or any of them in the family and that it was impossible that N would not want to play with his son Dewy.

206.  Daniel said under cross examination that he and his family went to his parents’ house for dinner on 21 January 2017 but could not remember what time they arrived, and that after arrival, Dewy would be the one who was with N most of the time, and they would play together.  Daniel agreed that as he was not with N all the time, he would not know what N was doing or what was happening to N when he was not with her.

207.  Mother was cross examined over her allegation during the trial.  Her evidence was that N told her Father was driving the car with her inside and that Father applied the brakes so abruptly, N was not wearing a seat belt, and that N had dashed forward and thought that there was a collision, and N had told Mother that Father was crazy and that she would not sit in his car again.  Mother said she did ask Father about it.

208.  It was Mother’s case that subsequent to the access on 21 January 2017, N showed resistance to attending access with Father.  

209.  When it was put to her that as Father had applied for holiday access on 20 January 2017 and on 24 January 2017, Father was granted defined access for 3 days during Chinese New Year from 25 − 27 January 2017 , Mother was looking for excuses to sabotage the access, Mother maintained that it was N who was crying and refusing to attend access, and that all along Mother was trying to persuade her to see her grandparents.

210.  In fact, what was put to Mother was not quite correct.  At the time of the Incident, the result of the Court order was not known.  Further, Mother had only objected to Father having staying access over the Chinese New Year holidays and in the end, the Judge ordered Father to have only daily access over the 3 days of Chinese New Year in the company of Mother.

211.  In any event, it was never put to Mother during the trial that she had made up the whole incident.  What Daniel said was only in relation to N being driven home at the end of access by him, and that the car braking incident which N had told Mother about, as seen later, in fact happened earlier that day. 

212.  There had been email exchanges between Mother and Father at the time.  Mother had sent an email on 21 January 2017 at 9:52 pm, ie shortly after N returned home after access with Father, describing what N had told her[112]. Father only replied the next day 22 January 2017 at 9:39 pm with two short sentences: “No such thing, don’t doubt and stir things up. I will only love Daughter dearly and protect Daughter”[113]. Mother then sent an almost immediate reply at 9:53 pm, namely “男人老狗，做得出怕乜嘢認!” / “You old dog, if you dared to it why fear to admit it!”[114]

213.  Father had also produced some SMS text messages which took place between Father and Mother after the Incident[115].  On 25 January 2017, the 1^st day of Chinese New Year on which Father was to have access, Mother sent a message to say as N’s emotion was unstable, she was not able to attend access.  On 28 January 2017, Mother sent another message to say N’s emotion was still unstable and she still refused to attend access.  Father told her that they had arrived at Mother’s place to pick up N and that her paternal grandparents were anxious to see her, and Father had asked Mother to bring N down.  Mother replied to say that she was persuading N who was crying and refusing to get up saying she would not attend any access in future.  In response, Father entreated Mother not to do this, and that he could not understand N’s reasons, and that her paternal grandparents had been waiting for N and they had been anxious to see her for several days, and that at least Mother could telephone the paternal grandparents to explain and to allow N to speak to them so that N could at least “拜年” or send her greetings to her paternal grandparents the first day of the Lunar New Year. 

214.  Mother’s response was there was nothing she could do, and that Father’s abrupt braking of the car and frenzied scolding of N had caused great fear to N and that she had frequent nightmares and woke up crying, and just recently had cried until she almost vomitted, and she insisted on not attending access.  Father replied to say “Give a dog a bad name and hang it, I understand “欲加之罪，我明白”.  I would only drive normally and safely a small car which could not move fast to travel and pick up Daughter.  What you say has no bearing whatsoever with what I request you to give to my parents aged 173 in total”[116]. According to this Court’s understanding, what he said was that he understood the “trumped up” charge against him.  However, Father seemed to miss the point.  It was not a complaint about whether he was driving a car which could move fast or not or whether he was driving normally or safely or not.  The Incident complained of was that Father lost his temper and he scolded N severely like a mad man and then suddenly braking the car causing N to dash forward, and further in breach of the Undertakings in the 2016 Access Order, he had refused to allow Jennifer to accompany them.

215.  Anyway, on 4 February 2015, Mother sent a message to say that N was still unwilling to attend access and that Mother was still coaxing her, and when Father asked Mother to tell N that her aunt, Jennifer and Dewy could play with her and to go out, Mother said she had said whatever she could, but N was still crying very much and that she still had vivid image of Father’s abrupt braking and furious scolding and she was very scared and was even unwilling to go out of the room.  Mother had also said she was not at the scene and that everything came from N’s mouth.

216.  I find the above communications telling.  I do not find it probable that Mother could have made up all those details in her 1^st email on 21 January 2017, 9:52 pm regarding what she was told by N.  All Father sent was simply a short denial.  By comparison to his response to Mother’s 5^th Abuse Allegation, his response to Mother’s 1^st email was rather mild.  In fact, as seen in Father’s Closing Submissions, he admitted that N had told him he could not take her out without a helper on 21 January 2017.  Further in the Updated OS Report of 30 September 2020, Father had also admitted that he might well have applied the brake during the Incident but he then gave a new explanation.[117]  In any event, in those messages he had not alleged that the trumped up charge was made up by Mother and in fact, he had thanked Mother initially for her efforts in persuading N to attend access.  Mother had said she was not present at the scene and that it was all told to her by N, and Father again did not contradict what Mother said or said N was telling a lie.  All Father said was that he did not believe that N would not even speak to or see all her other relatives and he then asked Mother to pay attention to her parenting skill and objective.  Mother then got upset at this message and asked Father how he could say this when she was trying her best to help Father to persuade N to attend access.  

217.  It was put to Father during cross examination that Father had allowed N to sit in his car without wearing her seat belt.  In particular, N was seen in photographs in a car not wearing a seat belt when she was about 2 years old and later N was again seen not wearing a seat belt in a video recording taken on 20 April 2016 when she was about 7 ½ years old. Father said he could not remember the occasion when N was 2 years old, and as for the video recording, he apologised for his oversight.

218.  Thus, Father’s own evidence showed that at least there had been occasions when N was not wearing a seat belt in a car.  As seen in the video of 20 April 2016, N was in fact playing with another boy inside a moving vehicle and yet neither child was wearing a seat belt.  I find it surprising that Father, who claimed to be a loving father and who is well educated, did not ensure that N would put on her seat belt every single time when she was travelling in a moving car with him, irrespective of whether he was driving or not.

219.  There was no social investigation report called around the time of the 4^th Abuse Allegation.  After the commencement of the present proceedings, this Court had later on 10 August 2017 called for an updated SIR in relation to access arrangements.  The updated SWR was prepared by Mrs Lam Yeung Kit-ching and submitted on 8 September 2017[118].  Mrs Lam had reported that access pursuant to the 2016 Access Order was smooth in general during the period from April 2016 to January 2017 until the 4^th Abuse Allegation, and that since 21 January 2017, access could not be arranged.

220.  As reported by Mrs Lam, Mother considered that Father’s poor temper control was the main reason contributing to N’s resistance to meet the Father, whereas Father believed that N refused to meet him due to the fact that she had been under the influence of Mother.  Mrs Lam opined that the Contact Centre was considered a suitable venue for the access to be conducted with the assistance of a facilitator and she recommended that the access could be resumed and conducted in the Contact Centre as early as possible.  Thus, what was recommended by Mrs Lam was supervised access.  

221.  In the 1^st OS Report, Ms Juliana Chan (then for OS) had reported that N had told her that she remembered that when she was in primary 2, while she was travelling in her father’s car during access and she cried out for the helper when the Father forbade the helper to accompany her, Father suddenly applied the brake to stop the car which made her feel very frightened[119]. In the Updated OS Report mentioned earlier, when Mr Jason Chan of OS interviewed N, N had again stated that she could still recall being treated badly by Father when she was younger and one example she cited was her being disciplined by Father hitting her head with a small stack of papers.  Another incident N mentioned to OS was the incident of “braking suddenly” and N had told OS that during access years ago, Father wanted to drive her to a mall to do some shopping, and when N asked for the company of the domestic helper Jennifer, it was refused by Father.  According to N, she started to cry inside the car and that she remembered Father on that day suddenly applied the brake and scared her[120]. N had further told OS that she would never forgive her father even if he would say sorry to her as he was not truthful and she did not believe that he loved her.  N had also said she had no expectation from Father and that she did not want to see him or hear his voice and that she felt stressful and unhappy after seeing Father.  

222.  Having considered all the evidence, again I find there was no sufficient evidence that Mother had made up a story about the Incident in the 4^th Abuse Allegation, and that she was indeed told by N that Father had refused to allow Jennifer to accompany her, scolded her like mad and had suddenly braked the car causing her to dash forward and his actions had frightened her during access on 21 January 2017.

223.  There was no sufficient evidence that N had herself made up a story about the car braking incident or lied to her Mother. I find it more probable than not that the Incident did happen.  Further, it seemed that N had also told Mother about being scolded by Father on other occasions.  There were some email exchanges between the parties in December 2016 over Mother’s proposed holiday to Thailand with N and Father’s proposed access over Chinese New Year.  Suffice to say, it seemed that Father had asked Mother why she had not yet signed the document indicating her consent to his access, and Mother had replied that during his access, he was always fierce with N or scolding N, and that who would want to spend more time with him during the holidays, and that if he could not control his temper then he should attend further treatment at the Kowloon Hospital.  Father then denied that he had been fierce towards N or he had scolded N, but Mother said she believed what N had told her more than what Father said.

224.  Later on 2 January 2017, in response to Father’s WP Email mentioned earlier,  Mother had also mentioned that during Father’s access on Christmas Eve and New Year Eve, instead of enjoying the festive season with N, Father had scolded N, over a sum of HKD 1,000 , and also when N said she did not want to switch to the ESF school, Father again scolded her like mad[121].

225.  It was not clear how Father had responded to the above email.  Even though Father had denied that he had scolded N fiercely, he did not say Mother was making it up or N was making it up, and if indeed N was making it all up, one would have though Father should show concern as to why N was doing so.  Having considered all the evidence, N had given reasons for not wanting to see Father.  I do not find that there was sufficient evidence that N’s unwillingness to see her father was because she had been subjected to any parental alienation or any process of psychological manipulation or emotionally abusive process on the part of the Mother .

G.7      The 5^th Abuse Allegation

226.  According to Father’s 23^rd affidavit filed on 8 June 2020, on Saturday 21 September 2019, Mother had sent him a what’s app message in the morning accusing him of having sexually abused N[122].

227.  Mother’s message followed one from Father that morning in relation to exchange of her school report card, as seen later under the heading of the Report Card Incident.  Mother had said to Father it was firstly Father who had taken N’s report card, and secondly, Father should cease all his provocative words to N such as “if she went out for a protest march, she would be definitely beaten to death by others” and his disgusting behaviour by deliberately extending his head to look at N’s private parts, and that such behaviour was unsettling and that he should be beware of it[123]. 

228.  Father had responded immediately, to say, amongst other things, that Mother was abnormal and that what she had accused of him was low class, shameless, falsification and immoral, and that there were many social workers and CCTV at the Contact Centre and that she should use more intelligence in making up a lie, and that Mother was vicious and that God would punish a shameless liar.

229.  Father said he then reported the accusation to Ms Wong at the HKFWS and requested HKFWS to report the Incident to the police for investigation, but HKFWS did not see the need to get the police involved and that they did not think Father had done such sinful act or anything near to it, and that they had checked with their staff and CCTV at the Contact Centre and that no such things ever happened.

230.  According to Father, Mother later in her 12^th affidavit herein had said it could be a misunderstanding but that was complete opposite to what she told him and that up to Father’s 23^rd affidavit, he had received no apologies.  Further, Father’s access was suspended from 21 September 2019 until 2 November 2019 and during the said period the Parenting Coordinators of the HKFWS did counselling with N every Saturday morning as Mother would only allow the counselling to be done during Father’s access times. 

231.  During the trial, Mother had produced more what’s app exchanges on 21 September 2019[124] in which Father had told Mother that in light of her accusation, she should make a report to the police about her accusation, notify HKFWS and OS, and she should also instruct her solicitors to apply for an injunction to restrain Father from having any further contact with N, and finally she should seek counselling from a child psychologist for N.

232.  Mother had in fact replied to Father at 3:52 on 21 September 2019 that after her finding out more from N, what was expressed by N was: (i) N admitted she was sitting with her legs open at the Contact Centre; (ii) when Father was entering the Contact Centre, he was looking at her lower parts and saying “睇吓你撞車個樣” (You look as if you had a car accident), and then he told her to sit properly; (iii) N had immediately responded by shouting to him “你死㗎” (are you dead?) to Father.  Mother said she then understood that Father had wanted N to sit properly but N was growing older and that she subjectively felt uncomfortable [about Father’s actions] and therefore she had a major reaction and that as N was going into puberty, Father should be more understanding; (iv) Father had said to N “if you go out on a protest march, you would definitely be beaten to death by others…”, and that they [parents] should try to learn how to communicate with a young person and how to express their words, and that they should use some suitable examples in order to make [N] accept what they said.

233.  Thus, Mother was trying to explain to Father on the same day what her understanding was after finding out more from N and Mother was clearly not making any sexual abuse allegation.  Father however retorted by continuing to abuse Mother, saying that she was a bad person full of nonsensical utterances.

234.  During the trial, under cross examination, Mother had said that Ms Wong of HKFWS had spoken to her and explained that the words used by Mother had not been proper.  Mother denied that that Father did not get access after her accusation.  Mother said she did take N to the Contact Centre and that she had left N there and she did not know that what was arranged by HKFWS and that she was told subsequently by social workers that it was Father who was not ready to see N after the allegation.  Mother disagreed that she had insisted that counselling took place during Father’s access time, and that what she had communicated to Ms Wong was that counselling should take place either before or after access at the Contact Centre, and it was best not to carry out counselling during weekdays as N was busy and that Ms Wong had understood this. 

235.  The record of dates of attendance at the Contact Centre produced by Father showed that he did not attend the Contact Centre during the period concerned.  On the other hand, Mother had produced her own attendance record at the Contact Centre to show that she did bring N to the Contract Centre on Father’s access days and that it was her evidence that Ms Wong saying to her that she remembered Father saying he was not ready for access.

236.  Suffice to say, it would appear to this Court that Mother had made an inappropriate accusation without first trying to understand what actually happened and in my view, the accusation was uncalled for.  However, Father had lost no time in abusing Mother either.  I accept that Mother did not apologise but she had clearly backed down by explaining she had found out more from N as to what happened.  

237.  No doubt, Father was very upset at Mother’s accusation.  In my view, although what Mother accused Father initially was quite inappropriate, she did try to explain later the same day.  Yet, Father was the one who did not seem to be prepared to accept her explanation and the matter then led to him not attending Contact Centre.  In my view, Father had also over-reacted.  There was no sufficient evidence that the suspension of access thereafter was engineered by Mother or caused by any parental alienation on her part.

G.8      Conclusion on the 5 Abuse Allegations

238.  To summarise, out of the Incidents of the 5 Abuse Allegations, there were two Incidents when N was taken for a physical medical examination.  On one occasion, there was a small abrasion and on the other occasion, there was headache and dizziness which disappeared shortly after admission to hospital.  As I have said earlier, the small abrasion was probably an accident when Father hit N with some paper.  As for the headache and dizziness, the cause could not be ascertained.  I find there was no sufficient evidence of “child abuse” on the part of the Father even though I have found that N did tell Mother that she was scolded and/or hit by Father during the Incidents alleged in the 1^st, 2^nd, and 3^rd Abuse Allegations and there was no reason why N would have made up a story about all those Incidents although there could be exaggeration on part of N, and I have found that the Incidents in the 1^st, 2^nd, and 3^rd Abuse Allegations did take place.  I have also found that N was the one who told Mother about the Incident in the 4^th Abuse Allegation and that it did take place.  As for the 5^th Abuse Allegation, I find that Mother had backed down from her allegation but that Father had also over-reacted.  I do not find that there was sufficient evidence that Mother had magnified the Incidents in the 5 Abuse Allegations to sabotage the Father access.

239.  It was only after the 3^rd Abuse Allegation in October 2015 that the 2014 Access Order was eventually replaced by the 2016 Access Order and the Undertakings.  Notwithstanding the Reasonable Access Order in September 2016, it was only after the 4^th Abuse Allegation on 21 January 2017 that N showed resistance to have any further contact with Father.  I find that by the time of the 4^th Abuse Allegation, N’s relationship with Father was already encountering difficulties and as I have said, there was evidence of N telling Mother about other occasions when she was scolded by Father. I have found there was no sufficient evidence that N had been subjected to any parental alienation on the part of Mother, whether as a result if anyone of those Incidents or the aggregate of any or all of the Incidients.

G.9      Mother’s direct attempts to suborn N

240.  In paragraph 18.1 of Father’s Closing Submissions, it was submitted on behalf of Father that Mother’s direct attempts to suborn N included (i) punishing N for expressing a desire to spend time with Father and involving her in this litigation, (ii) interrogation of N after access and her insinuations against Father.

241.  However, as seen in paragraphs 57 to 64 of Father’s Closing Submissions, the submissions were mainly on Mother bringing N into the litigation and this was in relation to Father’s 7 allegations as set out under paragraph 57 thereof:

(1)  Mother telling N that OS/SWO could help her to inform the Court that she wanted to suspend Father’s access to her;

(2)  Mother telling N that F would use her paintings and drawings as evidence;

(3)  Mother warning N that F could not take her out without any maid;

(4)  Mother telling N that Father would take her away from her mother;

(5)  Mother telling N that Father accused Mother of stealing the watch;

(6)  Mother showing N the dialogues between Mother and Father; and

(7)  Mother telling N that Father threatened to send her mother to jail.

G.9.1   Allegation (1)

242.  There was a SWR submitted by Mrs Lam on 8 February 2018 which was called for by this Court in relation to Mother’s application for N to be separately represented in the court proceedings[125].  Father had initially made such an application himself in the originating summons herein but later withdrew it, and then opposed Mother’s application for N to be separately represented. Father’s change of position was already noted in this Court’s decision on separate representation of 1 March 2018[126].

243.  As reported by Mrs Lam, N had expressed to Mrs Lam her wish to be represented by the OS so that she could directly tell OS about her wish and that she could tell OS that she wanted to have Father’s access to be suspended temporarily because she felt stressful to see her father.

244.  In the 1^st OS Report of Ms Juliana Chan (then OS) of 9 March 2018, N was reported to have said that Mother had told her that OS could help her to inform the Court that she wanted to suspend Father’s access and that she had said that she was going to the Saturday access because she needed to comply with the Court Order[127].  

245.  During cross-examination, Mother had said at the time N asked where she was being taken and whom she was taken to see, and that Mother had explained to N that that they were meeting with Ms Julianna Chan who was N’s legal representative and that whatever N wanted the Court to know, N could tell Ms Chan.

246.  As stated in the OS Report by Ms Juliana Chan, what N was told by Mother was only that OS could help her inform the Court what she wanted.  In fact, this was one of the purposes of having N separately represented in the proceedings.  I do not see why there should be a complaint by Father in relation to what N was told by Mother.  There was no sufficient evidence that Mother had coached N to say that she wanted to suspend access, if this was what Father was trying to imply.

G.9.2   Allegation (2)

247.  As for the Allegation (2), Father had said he was told by the SWO Mr Cheng who looked into the 3^rd Abuse Allegation that N had said she was very angry with Father for using her drawings and photos as evidence[128], and that N would not only know unless Mother had told her[129].  It is not clear when Mr Cheng was alleged to have told Father this, as this did not seem to be reported in Mr Cheng’s SWR of 24 February 2016, nor in the transcript of Mr Cheng’s evidence at the July 2016 Trial produced by the Father.  When it was put to Mother that she had told N that Father had produced N’s drawings in the parties’ litigation, Mother had disagreed.

248.  As seen earlier, what was reported by Mr Cheng was that by end of January 2016, he was not present during most of the access sessions, and although N had said she would not talk to Father, they did speak to each other during access sessions which were carried out.

249.  There was no sufficient evidence that Mother had told N about Father’s use of her drawings and photos.  However, even if Mother did tell N, I do not find sufficient evidence that any of N’s then negative feeling against Father and her unwillingness to see Father was caused by what Mother had allegedly told N.  Further, as seen later in this judgment, I find that in fact both parties had been involving N in the litigation.

G.9.3   Allegation (3)

250.  Allegation (3) seemed to be in connection with the Judge’s decision of 30 September 2016 for the Reasonable Access Order.  It is in fact not quite clear what was being submitted in paragraphs 51.2.a.2, 51.2.1.3 and 60 of Father’s Closing Submissions, and in particular paragraph 60 appeared to be in draft form and contained what was later said to be “internal memoranda”[130]. Further, paragraph 60.1 referred to paragraph 48 of Father’s 1^st affirmation [C137] but there was no such paragraph in Father’s 1^st affirmation filed herein.  In fact, those “internal memoranda” appeared to be amendments/additions made by persons unknown, and Father’s legal representatives simply lodged the Closing Submissions (mistakenly typed as “Opening Submissions”) without even reading them.

251.  Anyway, from what I could gather, it would appear that Father was trying to submit that as a result of the Judge dismissing on 30 September 2016 Mother’s application for variation of access to supervised access, he was then granted access without any of the Undertakings but N told him that Mother warned her that he could not take [N] out without any maid.  Father then submitted for the accesses on 14 and 21 January 2017, N, while enjoying their access told Father she was worried that Mother would find out that they went out without a helper, and that Mother was again dragging N into litigation and putting fear in N in an effort to alienate her from him.  Father then referred to letters his solicitors had written to Mother’s solicitors in relation to this issue.  It is not clear what letters Father was trying to refer to as they seemed to be not included in the trial bundles.

252.  Anyway, as seen in paragraph 3 of the Judge’s decision of 30 September 2016, at the time of the July 2016 Trial, the then access arrangement, which was in place since 2 April 2016, was the 2016 Access Order with the Undertakings and this had by consent of the parties modified the interim order of 9 December 2015.  As the Judge had pointed out, Mother’s then application for variation to supervised day access was taken out prior to the interim order of 9 December 2015 and that by the time of the July 2016 Trial, Mother’s application was overtaken by the 2016 Access Order and the Undertakings.  The Judge further pointed out that Mother had not amended her variation application to state specifically what access order she was seeking at the July 2016 Trial and it was under those circumstances that the Mother’s application for variation was dismissed.

253.  Although the Judge did not make it clear, after dismissing Mother’s variation application, it seemed that the 2016 Access Order subject to the Undertakings should continue to be in place until replacement thereof by the Reasonable Access Order.

254.  In fact, according to paragraph 49 of Father’s 1^st affirmation[131], thereafter, day access on Saturday from 10 am to 9 pm was allowed by Mother until the 4^th Abuse Allegation.  What Mother had allowed was along the terms of the 2016 Access Order which was subject to the Undertakings.  Eventually, the terms of the 2016 Access Order subject to the Undertakings were continued by this Court in the present proceedings on 19 May 2017, as seen in the May 2017 Access Order.

255.  There was no reason as to why N should not be explained by Mother as to the terms of the 2016 Access Order and the Undertakings which were consented to by the parties.

256.  In my view, Father’s complaints/submissions under his Allegation (3) are groundless.

G.9.4   Allegation (4)

257.  As for Father’s Allegation (4), Father relied on what was stated in paragraph 18 of Ms Yim’s SWR of 6 August 2015[132].  This had been referred to earlier on, in that N had told Ms Yim that she was worried that Father would be angry with her and would take her away from her mother.

258.  Father was cherry picking what was stated by Ms Yim.  What Ms Yim was saying was that N was worried that Father would take her away from Mother.  Ms Yim did not state that it was Mother who told N that Father would take N away from her mother, as alleged by Father.  It was only the reason given by N herself and there was no evidence that that was what Mother had told N.  Again, I find Father’s Allegation (4) and submissions are groundless.

G.9.5   Allegation (5)

259.  Father’s Allegation (5) was in relation to Mother telling N that Father accused Mother of stealing his watch, namely the “Watch Stealing Incident”. 

260.  In Mother’s 5^th affidavit, she had said on 4 November 2017, at about 12:15 pm, she received a call from the SWO Mr Cheng who told her that as Father had left the Contact Centre, she needed to go and pick up N from the Contact Centre[133]. Mother said when she arrived, N was very upset and told her that Father said to her that Mother had stolen things from him and that he would bring photos in relation to that next time.  Further, according to Mother, Mr Cheng who was present there and seeing the verbal fight between N and her father, had to separate them.

261.  In Father’s 14^th affidavit[134], he claimed that it was completely false for Mother to say he had accused her of stealing at the Contact Centre in front of his daughter and that it never happened.

262.  In the SWR submitted on 28 May 2020 by Ms So Hau Ping, Ms So had reported that N considered that Father always bad-mouthed Mother and was unreasonable[135].

263.  The 4 November 2017 incident was also reported in the Updated OS Report submitted by Mr Jason Chan on 30 September 2020, in that N had said Father would badmouth Mother and that one incident N cited was that Father once told her during an access session at the Contact Centre that Mother had stolen his valuable watches, and that N viewed this as a false accusation against Mother[136].

264.  N had apparently scolded Father with very bad words during access on that occasion at the Contact Centre, saying that Father had lied in accusing Mother of stealing his watches.  Father had admitted during cross examination that he did show N a jewellery box and that the contents in the box were taken by Mother.  He said it was not a watch box. Father then tried to explain during the trial that in fact there were 2 access sessions involving this incident and that during the 1^st access session at the Contact Centre, N was rude to him and very aggressive, and that N then mentioned about he falsely accusing Mother of stealing his watches, and that he had insisted to N that he did not.  Father then said that he then decided to bring along the jewellery box at the following 2^nd access session to show N what he said was true.

265.  Father appeared to be saying that it was N who brought up the subject of him accusing Mother of stealing at the 1^st access session and that it was Mother who had told N of Father’s accusation.

266.  It would appear that N had also brought up Father’s accusation before her then treating government psychologist Mr Lam. Mr Lam had given evidence that he had noticed that in certain ways, when he met N, she was “unnatural” and Mr Lam had said that on several occasions N had said to him that she had things to tell him but that he would not normally lead her on those few occasions and that it was N who took the initiative to tell him things and one of the examples given by Mr Lam was that during one access occasion, N told him Father had wrongly accused Mother of stealing things and that N had scolded Father back.  Mr Lam said when he asked N why she told him, N was unable to give an answer.  Mr Lam said he still remembered that he had written in his case notes that N was unnatural and that it was “out of the blue” what she told him.  When asked whether N had an agenda, Mr Lam had said he had such a hypothesis but it was difficult to confirm, and then he gave another example when in the middle of N playing games she suddenly told him that on one occasion Father suddenly braked the car and scared her and then she continued with her game, and that he did not see that she was scared.

267.  When the OS asked Mr Lam during the trial when N volunteered to tell him that Father accused Mother of stealing, Mr Lam said he could not recall and was not sure whether it was towards end of 2017.

268.  Whether it was “unnatural” or not, and although Mr Lam did say he did have a feeling that what N suddenly told him was “scripted”, he himself admitted that there was no sufficient evidence that it was.  Although Mr Lam had also said when he saw N with Mother, Mother would say in front of N many litigation matters with Father, and also the 1^st time when N went to his office with Mother, whenever N was asked a question, she would look at her mother before answering the question.  Later, when he decided to see Mother alone first, and then N alone, N seemed to be at ease.  Mr Lam had seen N a total of 16 times[137], and he had said he could not recall when exactly he started to see N and Mother separately, but at least it was after about ½ of those times, and later he said he saw N alone on 5 occasions and it should be sometime from 2017.

269.  Anyway, even though Mr Lam’s evidence seemed to indicate that N might have brought up Father’s accusation of Mother stealing, during the trial, under cross examination, Father had himself admitted that he did say to N that Mother took away valuable items from the jewellery box without his permission, although he denied he had implied that Mother stole the items.

270.  When Father was asked by this Court whether it was N who suddenly became rude and aggressive and scolded Father without any provocation on the 1^st access occasion, Father’s answer was he did not provoke her and he claimed that he did not know why N scolded her or became aggressive.  Father’s answer was clearly evasive.  In fact, if N had suddenly become rude and aggressive, Father should have been immediately concerned over N’s unprovoked scolding of him in bad words, and that the matter should have been reported by Father himself to at least Mr Lam but as set out above, it was N who suddenly told Mr Lam.

271.  It was put to Mother during the trial that it was her who told N that Father had alleged Mother taking his watches.  Mother denied this and that she was only informed by Mr Cheng who telephoned her to tell her that Father and N had an argument and Mother was asked to go and pick up N from the Contact Centre.

272.  Having considered the evidence, I do not find that there was sufficient evidence that it was Mother who told N to bring up during the access sessions or to confront Father about his accusation of Mother stealing watches which led to N scolding Father on the 1^st access occasion on 4 November 2017.  I find Mother’s evidence credible in this respect, and that the incident took place during access in her absence and that she was then telephoned by Mr Cheng to collect N.  What is clear is that N and Father had a big argument at the Contact Centre and that Father then left leaving N there.  Further, there was no reason why Father would want to bring an empty jewellery box to an access occasion with N and I find his explanation did not make sense.  In my view, Father was clearly involving N in her parents’ dispute.  What this incident also showed was that Father was not able to handle or control a situation when N and he had an argument.

G.9.6   Allegation (6)

273.  Father had relied on what’s app messages between Mother and Father on 27 January2017[138] in support of his allegation that Mother showed N the exchanges between her and Father and that Mother had interrogated N.  These were part of the exchanges after the Incident in the 4^th Abuse Allegation. 

274.  As seen in the messages, Father told Mother that they were waiting downstairs of Mother’s residence and told her bring N down for access and accused Mother of putting N under “long-term house arrest and isolating her from Father and his family was immoral and inhuman”[139].   Mother told him to call the police.  Father then said he had not mistreated N, much less hitting or scolded her and that he loved N deeply and that the experts had proved this point and that on the contrary, N was afraid of Mother’s cross examination, angry scolding and punishment.  In response, Mother said N said that it was Father who taught her to say the opposite things to the experts if not N would be scolded madly by him.  Father then responded that what Mother just said proved that she had used the content of the reports to cross-examine and blackmail N, to which Mother told Father that N saw what she just wrote. Father then accused Mother of showing their communications to N and dragging N into the puzzles and conflicts between parents and it was immoral conduct.

275.  Under cross examination, Mother had admitted that she did show the messages to N and explained that Mother was worried that N might subsequently pick up the messages since Mother would allow N to use Mother’s mobile phone.  On this matter, I do not quite understand what Mother was trying to explain, as even if N were to allow to use Mother’s mobile telephone, Mother should have taken care to make sure or control what contents in her telephone would be available for N to see.  In my view the messages showed both parent had involved N in their litigation.

G.9.7   Allegation (7)

276.  Father said Mother had told N that he threatened to send Mother to jail if the access order not complied with.  When Mother was asked about this during the trial, Mother said at the time, that was in fact what was happening and that Father had said if she refused to bring N to access, she needed to go to prison, and Mother said she did tell N that if N did not attend access, Mother could be sent to prison.

277.  As Mother was saying, this was indeed what Father was threatening to do by him obtaining those orders mentioned earlier before Lok J and G Lam J and it was only after those orders that N did start to attend access.  Although I accept that there were other methods Mother could use to persuade N to attend access as submitted by Mr Todd, I do not see why Mother could not have explained to N that if she failed to deliver N to the Contact Centre as ordered by the Court, then she could be found to be in contempt of Court and sent to prison.  In any event, this was part of Mother’s efforts to try to persuade N to attend access with Father. 

G.9.8   Conclusion on Father’s Allegations (1) to (7)

278.  Having considered the evidence and all the above, in my view, most of the Father’s submissions were based on evidence cherry picked by him and/or groundless.  Having said this, I accept that as Mr Lam’s evidence showed, Mother had mentioned a lot of the litigation matters to him in the presence of N.  On the other hand, as seen in the Watch Stealing Incident, and also later in this judgment in the 3 video recordings produced by Father himself, he was also asking N questions about how Mother had taught her homework and belittling Mother and also mentioning about what N was to say to the SWO.  As said earlier and as further seen later, in my view, both parents have been involving N in their litigation.  I find that both had in their own respective way questioned or “interrogated” N as to what happened when N was in the care of the other parent.

G.10    Mother’s Parental Failings

279.  In this respect, Father complained that Mother had taken no real steps to encourage or enforce access.  Father had also complained that Mother did not have any education plan for N.

G.10.1    Failing to Encourage or Enforce Access

280.  It was Mother’s evidence that she did her utmost in persuading N to see Father.  Father on the other hand claimed that this could not be true as “the Mother does not even allow [N] to love me and punished her severely for that, thus instilling fear and anxiety in my poor daughter.”[140]

281.  Father had relied on, amongst other things, Dr Hung’s evidence, Dr Winnie Wong’s evidence, and 3 video recordings he had previously produced in FCMP 67/2010.

282.  Dr Hung made an affirmation on 8 June 2020 containing his witness statement[141]. During the trial, Dr Hung said he first saw Father back in 2014 over N’s issues and that he was then arranged to meet N as Father’s friend on 12 December 2014.  Thereafter Dr Hung prepared a report on 28 May 2015[142].

283.  Dr Hung confirmed that Father had consulted him professionally at that time for his own treatment.  Dr Hung was reminded during the trial that the Judge had in his judgment on financial provision of 5 June 2015 mentioned 10 receipts being issued by Dr Hung[143].  According to Dr Hung, one of those receipts could be for meeting N on 12 December 2014, and he confirmed that he had only seen N on that one occasion but explained that Father would sometimes see him in relation to N and not just for his own treatment.  Later, during re-examination, he said he had seen Father for treatment not more than another 1 or 2 years after he saw N, ie around 2016 or at most 2017. Thereafter, Dr Hung only saw Father at about end of 2018/early 2019 when Father went to ask him for his CV.

284.  It was not in fact clear how much time Dr Hung spent with N.  In his report, he said the time of interview was 2 hours 20 minutes (20:00 to 20:20).  In his affirmation he said he observed N for 2 hours including 30 minutes together with Father.  During the trial, Dr Hung had mentioned it was about 1 ½ hours with N alone and later he then confirmed that his report was prepared after spending 1 hour 50 minutes with N.  Anyway, the time he spent with N alone was less than 2 hours and according to what he had stated in his report, the reason for N being referred to him was to assess N’s then state and anxiety (if any) and to make recommendations on coping skills and ways to facilitate her emotional wellbeing.

285.  Dr Hung confirmed that he had not seen N since 12 December 2014 and that he had never provided any treatment for N.  According to his then report, N had said, amongst other things that she felt happier with her father and that one time, when she told Mother she missed father, Mother got made at her and did not allow her to go to dance class as a way to punish her and did not allow her to listen to her father’s phone calls.  N also mentioned that she was happy to be with Father and was so scared that she would be “interrogated” by Mother when she returned to Mother after being with Father and dared not tell Mother she was happy with Father or she would get scolded and punished.  N had told him that one time, N told Mother she loved Father whereupon she was scolded and Mother punished her by forcing her to hold her ears and to stand outside the main door of Mother’s home alone for a long time and that she was very scared in the quiet corridor.

286.  Dr Hung confirmed that the report was based on what N had told him and on his own observations and that he did not meet Mother, nor saw N’s interaction with her mother.

287.  However, notwithstanding all N had said, what Dr Hung had reported that N said she loved both her mother and father.  Dr Hung’s then opinion was that N was very distressed and confused by the different messages she received from her parents, and that N should be allowed to love both her mother and father and that N felt that Mother did not allow her to love her father and punished her when she said she loved him or missed him.  Dr Hung opined that this had led to distress, intense anxiety and confusion and N felt compelled to act a certain way in front of her mother in order to avoid punishments.

288.  Dr Hung then recommended that amongst other things both parents and N to see a psychologist who specializes in families with young children to facilitate communication between the parents and to address issues in raising N and that both parents should work together and cooperate in order to facilitate N’s learning and upbringing[144].  He had also said that it was important for parents to emphasize the positive aspects of the other parent and not to talk negatively about the other parent in front of the child[145].

289.  When asked by OS, Dr Hung claimed that normally they could make a diagnosis at the 1^st session.  Dr Hung also said he had seen Father in relation to N’s issues a total of at least 3 or 4 sessions, and that at least once before he met with N, and that his treatment of Father was after handling N’s issues.  It was pointed out to Dr Hung that he had already issued 10 receipts by February 2015 which was less than a month after he met with N.  Dr Hung then answered he did not know the dates of those receipts.  Unless the Judge had made a mistake, what was pointed out by OS to Dr Hung must be right.  Thus, by 7 January 2015, Dr Hung had already seen Father 10 times, and this was some 5 months before he wrote his report.  Dr Hung then said when he was treating Father, Father had mentioned a lot of issues of N which would affect his mental health.

290.  As said, Dr Hung saw N on only one occasion ie 12 December 2014 which was after the 1^st Abuse Allegation and before the 2^nd Abuse Allegation.  Even though Dr Hung was not giving his evidence as an expert in the present trial, what he had said in his report of 28 May 2015 was, amongst other things, that consisting parenting was essential to N’s emotional and physical growth and wellbeing and that both parents and N were recommended to see a psychologist specializing in families with young children to facilitate communication between parents and to address issues in raising N.   

291.  In any event, Dr Hung never saw the Mother and his evidence was only one sided based on his one and only meeting with N and his many meetings with Father.  His factual evidence has also been overtaken by events.  

292.  As for Father’s other witness Dr Winnie Wong, she had also mentioned an incident on 21 March 2013, when she went with Father to collect N for access.  Mother was there and claimed she had wanted to facilitate Father’s access as N did not want to see Father.  There were some discussions between Father, Mother and the school teachers regarding access issues and N was crying hysterically and was very anxious stressed and nervous and that Father told Dr Winnie Wong to take N to wait outside the school gate and when she asked N why she was crying, N told her that it was because she was very scared of Mother as Mother did not allow her to love and be nice to Father.  It was Dr Winnie Wong’s evidence that N had told her that she was very afraid that Mother would know she loved Father and that she would be scolded and punished by Mother if Mother knew she loved Father.  N had also said she wanted to live with Father, and that N did not dare express her wish to Mother.[146]

293.  The SWO Miss Kiu in her SWR of 18 June 2014 had also reported that N had told her that her father allowed her to love her mother but her mother did not let her love her father.  However, when N was asked how she knew, N replied that Father had told her so and she believed in Father’s words[147].

294.  On the other hand, N had also told Miss Kiu that she was afraid of being scolded by Mother and that once Mother scolded her for lying when she said that she would like to go to Father’s home but N added that she was telling the truth and she did want to live with Father[148].

295.  As also seen in the SWR, and as set out earlier, the access arrangements at that time were smooth and the parental conflict was not high and in fact according to the then SWO Miss Kiu, although Mother was granted sole custody, care and control of N, the parents were having almost equal care. 

296.  Father had also relied on 3 video recordings allegedly made by him on 20 December 2014, 7 and 21 May 2015.  In the 1^st video recording of some 45 minutes, almost throughout, Father was asking N questions such as what time she went to bed when with Mother the previous evening and when N said 10:30 pm, Father then told N to tell Mother that N should go to bed earlier.  Father also kept asking N as to how Mother was teaching or supervising her homework and suggested the way he taught N was better and that N should also tell Mother not to change the contents of her homework record in relation to the date the work was done.  Thus Father appeared to be belittling Mother in her teaching methods.  At one stage, N had suggested that Father should himself write to tell Mother, but Father then said he did, and that Mother did not reply.  

297.  Then Father suddenly asked N why she had often mentioned that he would abandon her.  N answered because Mother had said this. Father assured N that he loved her and that he would never abandon her, and N started to cry and said she was not happy and that she was hurt and that Mother had often asked her whom she loved more.  Father had also asked N whether if she said to Mother she loved Father Mother would scold her, but N did not reply.  When Father asked N whether Mother would punish her, N said no. 

298.  Thus, although N had said Mother asked her whom she loved more, N did not say Mother would scold or punish her if she said she loved Father.  Anyway, it was Father who kept asking N how Mother taught her homework and then suggesting to N that his teaching method was better than Mother’s.  He was also asking N why she was at home all the time when she was with Mother, and whether it was because Mother (or they) were busy, and N replied she did not want to say and N then burst into tears.

299.  As seen in the above video recording, and as mentioned earlier Father was also questioning or “interrogating” N in his own way and drawing comparisons between her parents to N and N was obviously being put under stress.

300.  In the 2^nd video recording said to be recorded on 7 May 2015, it would seem that N had been unwell and at the start of the recording, Father was seen saying to N that he had called her many times and that Mother did not answer, to which N had said she saw Mother not answering the calls saying that they were for advertisements but she saw from call display that the calls were from Father.  N then cried and complained that Father had ignored her that day when picking her up at school and instead he hugged other students.  Father tried to explain that he had to be nice to the student who helped carry the cello for N.  Father asked her why she was carrying so many things and that N should tell Mother not to let her carry so many things.  N was clearly upset that day and towards the end of that video recording, N had asked Father why the parents of her schoolmates could live together and would not quarrel, and why hers could not.  Father’s response was asking N whether she had seen Father quarrelling with Mother, and N had said no but repeated that other parents were happy together.  Father then said he and N could slowly teach Mother not to tell N not to love Father, upon which N then cried incessantly and Father had to calm her down.

301.  I do not understand why Father was trying to say that he and N could slowly teach Mother not to tell N not to love Father.  Again what Father had said was clearly involving N in her parents’ dispute and causing distress to N.

302.  In the 3^rd video recording said to be made on 21 May 2015, at the commencement thereof, N was seen crying saying that she wanted to live with Father, and that she wanted to move to Father’s home to live with him, but Mother’s opinion was she had to live with her.  Father asked her not to worry and he would always love her and asked N to tell the SWO as to whom she wanted to live with.  Father also told N not to worry and that she would tell Ms Yim.  N kept crying.  Then suddenly Father asked her to discuss with Mother and Father where she wanted to study in future, and N had said she wanted to go to England.  Later N had also said she wanted “mummy” and “daddy” to live together but her parents were not able to do it.  She said she wanted all to live together.  She then burst into tears again.  N had said she wanted to be with Father but not sure whether they would “win”.  When Father asked her why she said “win”, N said she was worried that she would not see Father again.

303.  Again, by mentioning N to tell the SWO whom she wanted to live with Father was involving N in the litigation.  As said earlier, video recordings were made by Father unilaterally and it was not clear what led to the conversations recorded and the circumstances and context they were made.  It was also not clear whether they had been edited.  The 3^rd video started with N already in a distressed state and it was not clear what led to that conversation.  Anyway, as seen in those 3 videos, Father was often asking N leading questions and further, what Father alleged what N had said in the 3 video recordings as set out by him in paragraphs 26, 29 and 30 of his 2^nd affirmation herein[149] were only cherry picked from those video recordings.  In fact, for what they are worth, and as I have said earlier, the video recordings showed that Father himself had also been “interrogating” N and bringing N into the litigation and/or his conflicts with Mother. 

304.  Having considered all the evidence, I do not find there was sufficient evidence to support what Father had alleged, that Mother had punished N severely for N loving her father, thus instilling fear and anxiety in N, or that Mother had told N not to love her father.  The most can be said would be that it is probable that Mother could have asked N whom she loved more, which I agree is inappropriate.  The evidence showed that at the time, namely 2013/2014, N was enjoying her stay at Father’s house and that she was close to Father.  N clearly felt torn between her two parents.  As has been said by the clinical psychologist Ms Irene Cheung to whom N was referred by her school Student Health Service Centre in June 2015 at the meeting on 29 May 2015, N had elaborated to her that she had to be cautious in what she said in order to avoid upsetting either side of her parents and that she was put in a difficult position, and expressed her wish of having a complete family and living together with her parents as she desired to spend time with both her parents.   

305.  Father had submitted a “Schedule of Access” setting out his case as to how his access was affected or suspended often by Mother pursuant to those “child abuse allegations” and/or otherwise affected or deprived (“Access Schedule”), which was divided into two parts, namely Part 1 and Part 2.  Part 1 sets out Father’s entitled period from 9 March 2013 (date of the 1^st Abuse Allegations) up until 7 October 2017 when access resumed (“Part 1 Period”), with blue inclusions by Father but disputed by Mother, and purple inclusions by Mother but disputed by Father.  Part 2 of the Schedule sets out Father’s entitled access periods from 21 October 2017 until 3 October 2020 (“Part 2 Period”), with an additional comments in red setting out Father’s deprived access, to which again there was no agreement from Mother. 

306.  In so far as Part 1 is concerned, according to Father, he did not have access or just had very limited supervised access in the Part 1 Period and that the number of days of access affected or undelivered created by the 1^st – 4^th Abuse Allegations were 743 days.  Mother on the other hand said it was only 67 days + 6 hours.  It is not helpful for the parents to go into detailed computation of days of suspension of access.  The fact is that there is no dispute that there had been disruption of access after each Abuse Allegation and the reasons have been set out earlier. 

307.  Part 2 of the Access Schedule sets out the access affected or undelivered at the Contact Centre since 21 October 2017 when Father was to have access from 10:30 am to 1 pm, namely 2 ½ hours, every Saturday at the Contact Centre.  The Father had included in Part 2 all his comments (in blue and in red) in relation to each access period, which was disputed by Mother.

308.  In so far as I can see, the “undelivered access” (in red) in Part 2 of the Access Schedule was when Father was deprived of access for various reasons including (i) the Contact Centre was closed for public holidays or Covid -19 pandemic; (ii) N had a school event or other scheduled activity; (iii) N was allegedly sick or tired; (iv) N did not want to see Father because of the “Report Card Incident” as set out below.  There was also the 5^th Child Abuse Allegation, after which Mother said it was Father who was not ready to see N but that she did deliver N to the Contact Centre for access.  This has been dealt with earlier.

309.  In so far as (i) or (ii) above, these had nothing to do with Mother or N, or within their control.  According to Part 2 of the Schedule of Access, there were some 14 access occasions when the Mother alleged N was sick and/or tired over a 3 year period between 19 October 2017 until 3 October 2020, namely from October 2017 to August 2018, there were 7 occasions, from November 2018 to June 2019, there were 6 occasions, and from November 2019 to October 2020 there was 1 occasion.  On most of those occasions, medical sick leave certificates/medical certificates were provided to Father.  I find there was no sufficient evidence that N was not sick/unwell/tired on those occasions claimed.

310.  Anyway, Father complained that there was no make up access on all those occasions when his access failed to take place.  So far as this Court is aware, there has been no application made by him nor was there any Court order for make up access, save that according to Father, this was supported by HKFWS.  As seen later, this is now also no longer opposed by Mother.

G.10.2    The Report Card Incident

311.  During the Part 2 Period, there was a period of disruption of access between 20 July 2019 and 14 September 2019 which was caused by what has been described as the “Report Card Incident”.

312.  This incident was brought up by Mother in her 13^th affidavit filed on 29 May 2020, namely that Father’s access to N at the Contact Centre was going smoothly in general except that it was temporarily interrupted for about 1 ½ months and she then described what happened on Parents Day at N’s school on 12 July 2019[150]. 

313.  According to Mother, on that day, Father took possession of the original of N’s school report card of 2018-2019 (“Report Card”) without N’s nor Mother’s consent.  Father told Mother that he was entitled to keep the Report Card as he had the parental right and that he wished to apply for schools for N with the Report Card.  Mother said N found out later and was very upset by Father’s action, as it was N’s wish to keep the Report Card and N viewed the Report Card had embodied the fruit of her hard work over the year, but despite Mother’s repeated requests and written requests by her solicitors, Father still refused to return the same to N.  N then told Mother she refused to attend further access sessions until Father returned the Report Card to her, and that thereafter, N did not attend the access sessions from 20 July2019 to 7 September 2019 despite Mother’s best efforts in persuading N to attend the same. 

314.  In Father’s 23^rd affidavit filed on 8 June 2020, he stated that before the summer holiday in July 2019, N’s class teacher passed him the Report Card in the presence of Mother for him to prepare N’s application for secondary school and that Mother agreed with it, but Mother later asked for the return of the Report Card alleging that N did not want him to keep the Report Card and that N hated Father very much for signing the Report Card and therefore, N did not want to attend access to see Father. This then resulted in Father’s access being suspended until 7 September 2019. 

315.  Thereafter, 14 September 2019 was a public holiday.  Father did have access on 21 September 2019, but as seen earlier, there was then 5^th Abuse Allegation after Father’s access on 21 September 2019 and access was suspended again.

316.  It was Mother’s case that the original Report Card was taken by Father without her consent, whereas Father’s case was to it was given to him by the school in Mother’s presence on 12 July 2019 and that he had given Mother a very clear colour copy to Mother later that day and one to N on Saturday 13 July 2019 during access.  According to Father, on that day, Ms Wong of HKFWS had explained to N at the Contact Centre that she needed not be involved in the School Report issue, which would be handled by adults and that N had understood that she had the autonomy to read the original upon request[151].

317.  The what’s app messages between the parties at the time showed that on 12 July 2019 Mother sent a message to Father to say N found out that Father had taken the original Report Card and Mother asked Father to give her the Report Card during access the following day, ie Saturday 13 July 2019.  Father replied to say he would provide a “scan copy” and that there was no need to tell N and to involve N.  Mother then responded to say why should she not tell N, unless Father wanted her to lie to N.  Mother then later sent another message to say N was very angry saying that the Report Card was hers and that she wanted the original[152].  Mother then tried to explain that as N was the one who had worked hard, she should have the original, and asked again Father to bring the original to N the following day, as not only N was angry, she was also emotional, and that since the relationship between Father and N was already not good.  Mother said she felt there was no point for the relationship to get worse because of the Report Card and that there was no problem in Father keeping the copy, and that N was disappointed in not being able to see the Report Card on the Students Day, namely the 12 July 2019.  However, Father then replied to say the relationship between him and N was not good because of Mother’s alienation and that had nothing to do with N.

318.  Mother had also said that when N saw Father’s signature on the Report Card, N then became emotional, and Mother said she was concerned that N’s OCD would resurface, and Mother said she could not understand why Father could not give N the original, and suggested that he should explain it to N direct the following day.  Father’s response was that Mother was creating an incident, and that his signature had nothing to do with why N had OCD or N wanted to kill Mother.  Mother then responded that N’s OCD was caused by Father applying for wardship and threatening to send her to prison over access[153]. Suffice to say, the parents ended up in a squabble.

319.  Father had produced a copy of his email to Mother on 12 July 2019 in relation to the original Report Card which he said he would let Mother use the original when necessary and asking her to stop dragging N in to the parental conflict.  This was again repeated in his solicitors’ letters of 23 July 2019 and 31 July 2019.

320.  Father was not cross examined as to his evidence in his affidavit.  On the other hand, under cross examination when Mother was asked why she did not ask the school for a duplicate copy immediately she said she did not think of it then, and thereafter the school was closed for summer holidays.  Mother admitted it was her who told N about the Father taking the original of the Report Card, and that Mother had asked N to ask Father for it.

321.  Having considered Mother’s evidence, it would appear that on 12 July 2019, Father took away the original and at the time, no copy was available to Mother and when Mother returned home without the same, N was then told by Mother that Father had taken away the original Report Card and N was thus unable to see it.  Mother however could have pacified N and told her a scanned copy would be available for her.  Instead, the incident was blown out of all proportions.  I am satisfied that in relation to the Report Card Incident, Mother did not try to pacify N and instead had involved N in her dispute with Father by asking her to ask Father for it.  N then probably became upset when Father refused to hand over the original to her when she asked him the next day.  As advised by Ms Wong at HKFWS, N should not have been involved and it was a matter to be sorted out by her parents as to who should keep the original.

322.  Having said this, if the Father had indeed needed the original to make any application for secondary school for N, he could have explained it properly to Mother or N or made an immediate application for the same from this Court.  There was no sufficient evidence that the school would only provide a duplicate copy to the Mother and not to the Father.  Mother had said that Father later handed the original to Ms Wong at the HKFWS and that Ms Wong had suggested that when both the original and the duplicate were with her, she would ask N to decide which one to take.  Father claimed that the original was handed over by him to Ms Wong since end of July 2019 but the Mother said it was early August 2019.  It appeared that the duplicate or re-issued copy should be with Ms Wong by September 2019. Thereafter, it would appear that the original had remained with Ms Wong and it was not taken by N, nor Mother.

323.  Mother had pointed out, had Father been willing to hand over the original earlier during his access with N on 10 July 2019, the dispute would have been resolved and N would have continued to attend access. Thus, had Father been indeed interested in having access to N, he could have done so earlier as he did not have any genuine purpose of keeping the original.   

324.  Although I am of the view that Mother should not in the first place involve N in this dispute, Father could have brought this trivial dispute to an end earlier, and yet he chose to stand firm in his own stance. The original could also have been deposited into Court or with OS, and whoever had a genuine use for it, could have written to the Court or to OS to collect it with an undertaking to return it to the Court or OS after use.  Both Father and Mother were so entrenched in their dispute that they nor their respective legal representatives seemed not to be able to think of any other alternative. In the end, N was again involved in her parents’ dispute, which was not in N’s best interests and in my view, both parents had contributed to this.

G.10.3    The “Password Dispute”

325.  The position as set out in Father’s Closing Submissions was that there were two levels of web access to N’s schooling: a general one which Mother had provided to Father, and a lower interactive level which included eClassroom and GoogleClassroom.  The Father needed to know for all levels (a) the App; (b) the Username; and (c) the Password.

326.  It was only during the trial that upon this Court directing Mother to hand over all the information, then Mother finally provided the full information, as written down in exhibit D3 for both eClassroom and GoogleClassroom.

327.  There had been numerous correspondence between the parents’ respective solicitors over Father’s access to N’s eClassroom and GoogleClassroom and Father was not able to obtain the necessary username or password from the school. 

328.  During the trial, Mother tried to explain that GoogleClassroom had needed an update and that the password was sent in the eClassroom app, and that Mother said she recalled N telling her this and that GoogleClassroom was for students to use and not for parents.  According to Mother, on the Parents’ Day, Father was told that the teacher had put the promotion powerpoint in the GoogleClassroom app, and that was why Father wanted access to GoogleClassroom.  Mother said she did not know the password in August 2020 to the GoogleClassroom and that it was N who saw the eNotice sent by the school on 31 August 2020 in relation to the revised student’s google account log-in information[154] and had signed receipt on 31 August 2020 for Mother.  The Mother had said that when directed by this Court to provide all log in information into the GoogleClassrom, she then asked N to provide all the information. 

329.  This matter seemed to have resulted in correspondence over some 3 years.  As said by this Court during the trial, when the Mother claimed to have provided the log-in information to the Father, either parent’s solicitor could have tested such log-in information or authorised the OS to test such information to see whether the username and password provided would work, instead of keep writing letters and arguing over what was provided and/or whether what was provided would work or not.  

330.  Having considered the evidence, I find that Mother had indeed failed to provide proper log-in information and/or updated log-in information provided by the school expeditiously to Father, and it was not until the actual trial before this Court that Father finally obtained all the log-in information.

331.  However, although the failure to provide proper log-in information by the Mother to N’s school apps would mean that school information was withheld from Father, there was no sufficient evidence that this had alienated N from Father or had further worsened the relationship between N and Father.

332.  It was Father’s case that Mother also gave him false information about N’s email address on 4 August 2020 which had not worked for Father[155] .  It was only on 30 October 2020 after the hearing on that day that Mother gave Father a new email address of N’s which N had used for a few months.  Mother then claimed Father could still access N’s old email address.  However, there was no reason why Mother could not have provided N’s new email address to Father earlier instead of arguing about the matter.   Further, when asked about setting up a what’s app between N and Father, Mother’s response was that as this would involve providing Father with N’s mobile phone number and N was not willing for her mobile phone number to be provided to Father.  According to Mother, she had asked N and that N was only willing to provide her email address to Father, but not her mobile phone number.  It was put to Mother that what she said was nonsense as Mother could have set up the what’s app for N and it was up to N whether to use it or not.  Further, in a letter from Father’s solicitors to Mother’s solicitors, it was explained that Father would need to ask for N’s telephone number and mobile social media access for at least any emergency contact, and it would always be up to N to decide whether she would answer her father’s phone calls or instant messages, and that Father did not believe Mother was incapable to guide and teach N to act properly.

333.  On this matter, in my view, one solution would be for Father himself providing N with a separate mobile phone for her use in communicating with him, and he would then be able to find out whether N would use it or not.  I understand that Mother has no objection to this.

G.11     The Evidence of Ms So

334.  The two recent SWOs were prepared by Ms So respectively on 28 May 2020 and on 30 September 2020 and as said earlier, Ms So was the only SWO who attended trial to be cross examined.

335.  It was submitted on behalf of Father that Ms So accepted during the trial she was constrained by the fact that she started from the position of there being no parental alienation and that those recent reports did not sit that well with the prior more in-depth reports of previous SWOs, which had all emphasised lack of substance in Mother’s allegations and up to 2016, those previous social workers had emphasised the need for a shared care regime, which Mother alone prevented from happening[156].

336.  Although Ms So agreed that when she wrote her 1^st SWR, it was not based on there being parental alienation, what Ms So had made clear under cross examination was that it was not for her to say whether there was parental alienation or not because there were child psychiatrists involved in the case, and she had not heard any single professional mention that parental alienation had taken place.  As seen in her SWR, Ms So had spoken to Dr Lily Ho, Dr Winnifred Mark and the social workers of HKFWS.

337.  Ms So had in her 1^st SWR mentioned that N had expressed to Dr Mark as to why N had expressed her intrusive thoughts of hurting her mother and pet dogs that she loved and respected and that she was troubled by such thoughts and Ms So had reported that follow-up investigation and treatment to N was required.  When asked during the trial whether she had asked Dr Mark about why N had such thoughts, Ms So said she did not mention it but that Dr Mark had told Ms So that N’s emotions were stable.

338.  In her 2^nd SWR, Ms So had also said according to Dr Ho, N was assessed to have stable mental condition although “[N] would be prompt to conflict with [Father] when going with him.”[157]  During the trial, when asked whether she had raised with Dr Ho that Father believed that N was “scripted” into saying such things, Ms So had said that she had asked Dr Ho about parental alienation but Dr Ho said she would not deal with this and she had no comment.

339.  According to Ms So’s 1^st SWR, N had told her that she had “sweet time” with Father but it was never returned after he repeatedly used violence to discipline her in the past years and told lies to cover up his acts and that N felt unhappy that Father blamed Mother repeatedly for not bringing her for the access and that N elaborated that she did not want to attend the contact sessions at the Contact Centre because she did not want to meet Father.  N further expressed to Ms So that she did not want Father to get involved and handle “her issues”, and that N recalled that she an episode a few months ago that she refused to let Father to keep her report report, and that Father then scolded at N very loudly and blamed Mother of breaking her promise of giving him the report.  N also considered that Father always spoke bad-mouth of Mother and was unreasonable[158]. 

340.  During the trial, Ms So was asked to explain what issues N was referring to that she did not want Father to handle, and Ms So had mentioned school reports, Parents Day, medical appointments. 

341.  According to Ms So’s 2^nd SWR, N had described to her that Father was “overweening” in front of her and she somehow felt being looked down by him during their contact and N gave examples of having quarrels with Father during contact sessions on 4 July 2020 that Father was proud of making his pudding and that on 15 August 2020, he urged N to show her drawings to him.  She showed strong resistance to go with Father especially when he was appraising himself or forced her to do whatever she disliked[159].

342.  During the trial, Ms So had further explained that N said when she was doing revision of school work, on several occasions Father had hit her and they, [referring to the social workers] did not believe N.  Ms So said she did not ask her further more questions on this as N did not wish to talk about it.

343.  Under cross examination, Ms So had also said N was reluctant to tell SWOs anything about Father because she felt discouraged and disbelieved by the SWOs.  It was also Ms So’s evidence that although N felt stress or pressure when facing Father, N did not have fear for Father.  

G.12    The Evidence of Mr Lam

344.  Mr Lam is a clinical psychologist who has been working for the Social Welfare Department since 2003.  He first started to provide services to N in November 2015.  As seen in a letter dated 10 May 2018 sent to the parents[160], Mr Lam had a total of 16 sessions at the time, but he confirmed during trial that after 18 January 2018, he saw N on one further occasion upon Father’s request, on 7 December 2018.

345.  It was Mr Lam’s evidence that on 11 December 2017, he received a phone call from Mother about certain symptoms displayed by N including having visual images of stabbing her mother to death, and that was why he wrote a letter of reference on 12 December 2017 for N to see a government psychiatrist[161]. He said Mother was very anxious on the phone when she spoke to him. 

346.  When asked whether N had ever told him that there was any abuse by Father, Mr Lam replied that N did not use the word “abuse” but she had mentioned Father had scolded her.  When asked whether Mother had told him about any “abuse” which he should investigate, Mr Lam said Mother did mention the background of the case during their 1^st meeting on 10 November 2015 and that N did not want to have contact with Father and that at one homework supervision session, Father had hit N and that N felt dizzy and went to hospital for observation.  Mother had mentioned to him that she wanted to change access arrangements, but Mr Lam had explained to Mother that his role was to provide psychological services to N, not writing a custody report.

347.  As said earlier, Mr Lam had observed that Mother at the time lacked the awareness that she should avoid discussing litigation in front of N, and that later, he decided to see N and Mother separately.

348.  Mr Lam also confirmed he later spoke to the then SWO in charge of writing the report, namely Mr Cheng, who prepared the SWR on 24 February 2016 and that Mr Lam had indicated that normal access should be resumed and this was then reported by Mr Cheng in his SWR.

349.  Mr Lam also confirmed that Mother had never shown him what N had written on her worksheet[162] even though Mother had said she had fears over N.

350.  Father had said in his affirmation that Mr Lam told him that N “was like a tape machine playing back recordings made by Mother”[163]. It was not clear what Father’s evidence was based on.  When asked during the trial, Mr Lam said he had no impression that he had ever said to Father in such direct way.  As said earlier, Mr Lam had only said he had noticed when N told him certain things, N was “unnatural”, and that N would suddenly say to him that she had things to tell him.  Although Mr Lam had said he had a feeling or a hypothesis that N was “scripted” or “as if she had an agenda”, Mr Lam said ultimately there was insufficient evidence to confirm that.

351.  When asked whether when Mother was present, N was pressured to behave in certain way, Mr Lam had responded that he only had enough evidence to say that the first time N met with him, for each and every question N had to look at Mother as if she needed to get approval, for the remaining time, he did not quite see N had the pressure to perform[164].

352.  When asked by the OS, when N mentioned Father had scolded her, whether this was over trivial matters, Mr Lam had answered that one time it was about N refusing to get into Father’s car and there was delay for 45 minutes, and that N had also mentioned that she refused to call Father “father” and that Father then scolded her.

G.13    The OS Reports

353.  There were altogether 3 OS Reports filed, excluding the OS Updated Letter enclosing the report of Dr Lily Ho, one by Ms Juliana Chan, one by Mr Ben Li Chi Keung and the latest one by Mr Jason Chan.  As said earlier, Ms Juliana Chan reported that N took the initiative at the beginning of the meeting to explain about the few incidents that made her dislike Father and that N had showed resentment towards her father and was resolute that she would not give Father any chance and she did not want to see Father and had requested for suspension of access with Father.  Notwithstanding N’s views, Ms Chan did not agree and was of the view that it was in N’s best interests to have access[165].

354.  Mr Li’s OS Report and the OS Updated Letter were in connection with the question of whether it was necessary for N to receive parallel treatment from her private treating psychiatrist Dr Joanna Lam as well as from Dr Lily Ho, the government psychiatrist at the YMT Child Service, and this matter was subject of this Court’s decision of 18 September 2020.

355.  Mr Jason Chan submitted an Updated OS Report on 30 September 2020.  He also personally attended access sessions at the Contact Service and made some helpful observations.  N had mentioned to him regarding some of the Incidents in the Abuse Allegations and that Father had bad mouthed Mother and the OS opined that there was no evidence of N being programmed or brainwashed.[166] OS further opined that “the insistent, dominating and always critical Father in the eyes of [N] is not a pleasant role.  The Mother who probably is seen by her as “the oppressed party” earns her support too”[167].  Suffice to say, OS took the view that the formation of negative feeling and resentment towards Father by N is indeed something spontaneous and from within herself and that N had actual experience of Father belittling of Mother and that Father’s attribution of all these resentment and attitude of disapproval to parental alienation and brain-washing practised by the Mother was not adequately evidenced[168].  Further, OS opined that in arriving at his conclusion, Father missed an important perspective, namely the formation of rejecting attitude by N in the context of all the dynamics of the protracted litigation as well as the continuing experience of the acrimonious parental disputes. 

G.14   Conclusion On Issue (1): Parental Alienation 

356.  What seems clear is that N did have a very good relationship with Father when she was attending kindergarten, and that she had enjoyed staying at Father’s house and from all accounts, she loved her father. In my view, such relationship started to change when N was in primary one when no doubt she would be under greater pressure over school work and she was put under stress when caught between her parents’ constant conflict. 

357.  I accept that both parents love N, but neither parent is a perfect parent, if ever there is one.  As said earlier, both parents had involved N in their disputes.  I accept that Mother had not been prompt in providing or sharing with Father any information on N, nor had Mother been proactive in encouraging access or encouraging N in improving her relationship with Father.  However, as found earlier, N did tell Mother of those Incidents in the 5 Abuse Allegations and there was no sufficient evidence that N had lied or made up those Incidents and that I find more probable than not that Father did lose his temper when supervising N over her school work or on other occasions, that he had scolded N or hit her with paper over her head, and/or braked the car suddenly.  Father’s denial in these allegations and then pointing his finger at Mother for having fabricated those allegations would mean that he was saying either Mother or N was lying, neither would go down well with N, who on all accounts, was/is close to her mother with whom she has lived since about 6 months old and as N grows older, as said by OS, unsurprisingly she has formed a firm bondage and an empathy for the Mother.

358.  Having considered all the above, I have come to the conclusion that N has not been subjected to any parental alienation as alleged by Father.

H.  ISSUE (2) AND ISSUE (3)

359.  As there is no finding of parental alienation, Issue (2) and Issue (3) need not to be considered.

I.     ISSUE (3), ISSUE (4) AND ISSUE (5)

360.  These issues concern whether there should be any variation in N’s present status quo.

I.1     General Principles

361.  The general principles in relation to custody or upbringing of a child have been set out in s 3(1)(a)(i) of the Guardianship of Minors Ordinance, Cap 13.  Although Father’s counsel still referred to “welfare” of the child in his Closing Submissions[169], the law in Hong Kong has been changed since April 2012 to the “best interests” of the child.  However, it has been said the two terms are synonymous and as with “welfare”, the term “best interests” is usually construed in the widest possible manner[170].  Further, the Court in having regard to the best interests of the child shall give due consideration to (A) the views of the child[171] if , having regard to the age and understanding of the child and to the circumstances of the case, it is practicable to do so; and (B) any material information including any report of the Director of Social Welfare available to the court at the hearing[172].

362.  The Law Reform Commission of Hong Kong in its report on “Child Custody and Access” in 2005 has also recommended a statutory checklist should be introduced, to include the following factors:

“(a) the ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding.

(b) the child’s physical, emotional, and educational needs.

(c) the nature of the relationship of the child with each of the child’s parents and with other persons;

(d) The likely effect on the child of any change in the child’s circumstances;

(e) The child’s age, maturity sex, social and cultural background, and any other characteristics which the court considers relevant.

(f) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

(g) Any harm which the child has suffered or is at risk of suffering;

(h) Any family violence involving the child or a member of the child’s family;

(i) How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(j) (a broader formulation along the lines of) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(k) The range of powers available to the court under this Ordinance in the proceedings in question.

(l) Any other fact or circumstance that the court thinks is relevant”.

(“Welfare Checklist”)

363.  Although the Welfare Checklist has not yet been introduced in our legislation, the courts have found it helpful in considering the best interests of a child.

364.  As submitted by the OS, the factors (a) to (e) are especially applicable and relevant in determining of N’s best interests in the present case.

I.2     Ascertainable Views of the Child

365.  As said, N is now 12 years old.  From all SWRs, OS Reports and from all accounts, N is capable of understanding that there are disputes and conflict between her parents, in particular as to where and with whom she is to live.  As seen in the Updated OS Report, she was observed by the OS to be forthcoming and spontaneous as well as capable of expressing her views and feelings from her own mind.  From my view, what N has expressed should be given consideration.

366.  N informed Ms So that she had maintained peaceful living with Mother all along and that she liked sharing with Mother like friends and would discuss with Mother all topics including peer linkage, school issue and the future.  N indicated that she felt being encouraged and respected by Mother and that N enjoyed being with Mother and under her care continuously.  On the other hand, N showed strong resistance to go with Father especially “when he was appraising himself or forced her to do whatever she disliked”.  Also as revealed in the SWR dated 28 May 2020, N had expressed that she felt unhappy that Father blamed Mother repeatedly for not bringing her for the access, and that N elaborated she did not want to attend the contact sessions at the Contact Centre only because she did not want to meet Father and as mentioned earlier, N also expressed to Ms So that she did not want Father to be involved and to handle her issues. 

367.  In the Updated OS Report dated 30 September 2020, OS reported that N had similarly expressed to him that she had a very close relationship with the Mother.  She also voiced out firmly that her relationship with the Father would just become worse if she would have to move to live with him. 

368.  It is clearly N’s views that she wants to continue to be under Mother’s sole custody, care and control.

I.3     N’s Physical, Emotional and Educational Needs

369.  As set out earlier, N had suffered from anxiety problems and also from OCD.  Notwithstanding Father seemed to point his finger at Mother for N causing N’s problems as N had visions of stabbing her mother (ie not be father) to death, there was no sufficient evidence from any of the government experts that the cause of N’s problems was brought on by Mother.

370.  Further, although in June 2014, Miss Kiu had in her SWR reported that Father and Mother had almost N’s shared care and control equally at that time under the 2014 Access Order, this came to an end after the 3^rd Abuse Allegation, and as set out earlier, since the 3^rd Abuse Allegation in October 2015, Father has not had staying access to N.   

371.  Mother has been N’s primary carer since her birth and Mother has developed strong emotional bonding with N[173]. 

372.  I also find that Father has indicated a lack of sensitivity towards N’s feelings as seen in particular in the Watch Stealing Incident, the Report Card Incident and also the Incident in the 5^th Abuse Allegation as reported by N to Mother.  Having considered all the evidence, and with N growing into a teenager, I am of the view that Mother is in a better position than Father in meeting N’s physical and emotional needs.

373.  So far as N’s education is concerned, she is currently studying primary 6 and she will be going to secondary school in September 2021.  Father had complained that Mother did not have any secondary educational plan for N[174].

374.  As seen in his solicitors’ 2^nd letter of 19 June 2020 sent to Mother’s solicitors, it was Father’s case that he had first presented his thoughts and initial plan for N’s education to Mother at HKFWS over a year ago, ie in about May 2019, pending Mother’s feedback for refinement but no feedback as promised by Mother was ever obtained.  Father also complained that Mother had refused to have a mediation session to handle N’s education matters.  Father then asked Mother to provide him with her secondary education plan for N with clearly elaborated reasons without delay, and that if Mother’s plan was beneficial to N and could be afforded by Father, it was stated therein that Father would make his best efforts to give support[175].

375.  In Mothers’ solicitors’ reply of 2 July 2020[176], she denied Father’s accusation of her having excluded him from N’s education.  She then asked Father to send (or resend) her his thoughts and initial plan for N’s education to try to facilitate discussion.

376.  However, instead of sending or resending to Mother his thoughts and plan, in Father’s solicitors’ letter of 3 July 2020, he repeated that he had presented his education plan to Mother at HKFWS in the presence of Ms Wong long ago.  Father then urged Mother to produce her education plan for N without further delay[177].

377.  Father’s solicitors wrote a further letter on 13 July 2020[178], in which Father claimed, amongst other things, he had had detailed discussions with N’s school principal and her class teacher, and the head of student welfare and social worker at the school and that his observations and proposed initial plans for N’s education had been confirmed collectively by the principal, class teacher and related school staff as being correct.

378.  Yet, as Mother’s solicitors had pointed out in their reply of 14 July 2020, up until then, Father had not clearly set out in writing or anything on record as to his education plan for N in his solicitors’ letter.

379.  Then in a subsequent letter on 20 July 2020 from Father’s solicitors[179], Father went back in history again and referred to what happened in the past when he tried to enrol N for primary one and insisted that Mother had to confirm first whether she would follow his guidance before he would give her his plan in writing of N’s education.  This was then followed by another letter on 23 July 2020 from Father’s solicitors with further criticisms about Mother occupying N all day and evening with homework.

380.  Quite rightly in my view, Mother’s solicitors then pointed out in reply that they did not see it reasonable for Father to demand Mother to follow his guidance as a precondition for him to let her know what his plan is.  Further, N’s education plan would have to be linked with payment of the tuition fees.  Thus, Mother replied to say given the way in which Father had honoured (or dishonoured) his [financial] undertakings in disputing N’s school bus fees, she intended for N to continue her education in the public school system and through the “Secondary School Places Allocation (SSPA) System”[180].

381.  During the trial, Mother had produced some what’s app messages between her and Father in relation to N’s schooling[181].  On 27 July 2020, at 12:24 pm, Father had sent Mother a message asking her whether she would agree to N attending a face to face interview at a Po Leung Kuk primary school (“PLK Primary School”) which could be a stepping stone for N to then be enrolled in a Po Leung Kuk Secondary School (“PLK Secondary School”), and it would appear that Father’s proposal was for N to switch from her present school to the PLK Primary School to attend primary 6 for the September 2020 term.  However, he then told Mother that he had to inform the principal at the PLK Primary School before 3 pm that day.

382.  Mother replied at 1:18 pm to thank Father for his arrangement but as there would be only one year left at N’s present primary school, Mother would not consider any change of school for N at that time, and further explained that that according to N’s class teacher, a child would need 3 to 6 months to adjust to a school and the pandemic would not end soon.  Mother also said if N were really to change school, then immediately thereafter, before she had acclimatised to the new school, she had to face an important examination and Mother was worried that this would affect N’s self confidence.

383.  Father sent a long message to explain why he had arranged for the interview for N and complained that Mother did not even answer his telephone call when he tried to discuss with her. Mother had tried to explain that she did not hear the phone ringing, and this then led to another series of disputes as to whether Mother had refused to answer his calls or not.

384.  Father claimed that he had come up with an excellent school namely the PLK Secondary School which is a very interactive school and where there is excellent one-to-one teaching especially in music as N plays the cello. 

385.  PLI Secondary School may well be an excellent school but Father’s proposal involved an immediate change of primary school for N.  I find what Mother had said to Father was reasonable, and that whether N should suddenly switch school for her final year at primary school to a completely new primary school, with a view to enter yet another new secondary school, was a matter which should involve detailed discussion between the parents and N, and Father could not simply impose his proposal on Mother and N in a rushed manner.

386.  Anyway, as seen in Father’s Closing Submissions, criticisms were again launched at Mother that she had failed to come up with any plan and Father complained that Mother in the end only set out a “preliminary choice” of 3 schools in her solicitors’ letter of 19 August 2020[182] and that Mother had done nothing about N’s schooling.

387.  I find Father’s complaints completely unjustified.  As seen in those solicitors’ letters, similarly, Father himself had also failed to set out clearly his concrete plan in writing.

388.  In fact, even at the trial, Father’s attitude was one of evasiveness.  This Court was not even able to elicit a clear answer from Father when this Court first asked him for his proposals on N’s schooling.  In the end, the Court had to ask him to think again as to whether he wished to put forward his proposals in writing and further gave him time for him to write down names of his proposed schools for N with respective tuition fees which Father eventually did during his re-examination on 27 October 2020[183] together with a confirmation said to be signed by his mother Madam Wong[184], that if N were to attend any of those 4 schools written down by Father, and if Father did not have the ability to pay for N’s tuition fees, Madam Wong confirmed that she would pay on his behalf.

389.  By way of an observation, those tuition fees would seem to pale if compared with the amount of legal costs spent by Father in all the litigation since 2010.  Suffice to say, notwithstanding all the criticisms which Father had launched at Mother, there was no concrete plan from the Father himself even at the commencement of the trial.  At one stage, during the trial, the Father seemed to indicate that he was planning to apply for a variation of the financial provision order for N in that he wanted to reclaim possession of the One Silversea Property which had been settled for N’s residence with her mother until N is 18 or completes full time education and that his education proposals would depend on whether he would succeed in his intended variation.  This proposal was put to rest by his own Counsel Mr Todd who had pointed out that there was no power for the Judge to vary the settlement of property order he made for the benefit of N.

390.  The evidence showed that having agreed with Mother for N to study at her present primary school, Father then seemed to want N to switch primary schools, firstly, as mentioned earlier, to attend an interview in August 2016 for N to switch to study primary 2 at the ESF school, and later in January 2017, as seen in the WP Letter, he had continued to ask Mother to allow N to attend an interview with the ESF school which appeared to be for primary 4.  Then more recently, as set out earlier, he wanted N to change school for primary 6 being her final year at her present primary school.  Bearing in mind N already has firstly suffered from anxiety problems and later from OCD, one would have thought N would need at least stability in her schooling. 

391.  Having said this, I accept that N’s educational needs would be best be provided for by joint discussions between her parents.  Mother should consult Father over N’s education.  I agree with what was submitted by OS, the education plan and educational needs of N should be hammered out by rational discussion between her parents and by forging a joint front for the interests of N.  It would be best for them to have joint discussions with N, in the presence of OS, in relation to a suitable secondary school.  If they are not able to agree, then they will have to take out a separate application for N’s schooling later.  I will also add, Father’s mother Madam Wong is not a party in these proceedings and there is no reason why this Court will accept an undertaking from a non party and thus any schooling plans for N will need to be accompanied by an undertaking from Father himself to meet all N’s education expenses.

I.4     Nature of N’s relationship with each of her parents and with other persons

392.  At present, there is no doubt that N has a very close relationship with Mother and as said earlier, there is a firm emotional bonding between them.  On the other hand, the present relationship between N and Father would need much improvement.  It would appear that N has not seen her paternal grandmother or her paternal side of the family for some time.  Although N had visited her paternal grandfather the Friday before he passed away on Monday 21 May 2018, according to Mother, N did not wish to go the hospital to see him again on the Monday, nor did N want to attend the funeral on 5 June 2018.  This was sad and I accept that Mother should have done more to persuade N to see her paternal grandfather before he passed away.  From the latest update scan OS, N also seemed to have visited Madam Wong in December 2020.

393.  The evidence seems to indicate that N also had a good relationship with her cousin Dewy but there has been not much recent information on this or on her relationship with other family members, whether paternal side or maternal side, although OS had reported that N had occasionally met her maternal grandparents.[185]

I.5     The likely effect on N of any change in her circumstances

394.  The OS had observed that the change of N’s status quo now sought by the Father will not be just difficult and challenging, but could well be risky and damaging as well as end up pushing the father and daughter relationship further apart. 

395.  N’s mental condition has only been found to be stable not too long ago.  I agree with OS’s view that it is indeed too drastic and too risky a change to happen to N given all these years of living with the Mother and the strong emotional bonding between them and also N’s own history of anxiety and OCD.

I.6     N’s age, maturity, sex, social and cultural background and any other characteristics of N that the Court considers relevant

396.  As pointed out by OS, N is now an adolescent girl who has been drawn into her parents’ disputes and ceaseless legal battles for a very substantial portion of her years, and that she definitely maintains strong emotional and social connections with the Mother.  She has received treatments from a number of professionals for her psychiatric condition which has recently become stabilized.  

I.7     Other Welfare Checklist factors

397.  As I have found earlier, there was no sufficient evidence of N being subjected to any parental alienation on the part of Mother as alleged by Father and there was no sufficient evidence of any harm that N has suffered or at risk of suffering if she were to continue to live with Mother.  Further, N has only just become stable in her OCD and there was no evidence before this Court as to whether any harm would be suffered by N if she were to be removed from her mother’s care and residence against her will, and this is a matter of serious concern of this Court.

398.  As for whether there was any family violence involving N or a member of N’s family, as said earlier, there was no sufficient evidence of “child abuse” on part of Father even though I have found that the Incidents did take place even if there was exaggeration by N.

399.  I have found that Mother is more capable of meeting N’s physical and emotional needs and that Mother should consult Father over her education and that Mother and Father should discuss jointly with N in relation to her educational needs.  I find there is no practical difficulty or expense in N having contact with her parent.

400.  Apart from the above, I would only add that I am somewhat concerned over what Father has said in his WP Email, in that what he was saying in the last paragraph of that email was that Mother should let him have full time care of N and that he would give Mother whatever she was entitled to, and that if Father were able to earn money, he would leave his wealth to N; however, if N were not under his care, that it would only be normal that he and his family would not leave a single cent for N, and in this case, N would have a difficult life after she completes her education and that N may not even to be able to pay her rent.

401.  What Father was saying seemed to be, that he and his family would not leave N anything unless N were to be under his full time care.  It is of course up to Father to leave his money to whomever he wanted.  However, if Father is indeed concerned over N’s welfare and interests and he genuinely loves N, then he should not have involved N as a bargaining chip with Mother.

I.8     N’s Custody, Care and Control

402.  In light of all above said, and having considered N’s best interests, I find there is no ground to vary the current arrangements of Mother having N’s sole care and control. 

403.  Although in relation to Father’s 1^st Variation Application in FCMP 67/2010, the then SWO Miss Kiu had recommended Father and Mother be granted joint custody and a shared care and control arrangement to be agreed, this was in June 2014, over 6 ½ years ago.  As set out above, much has taken place, and the conflicts and litigation between the parents have continued until the present.  They have not been able to come to any agreement about any major issues over N, indeed her schooling and her psychiatric treatment, or even who is to keep N’s report cards.  There has been no sufficient evidence that the parents are likely to cooperate in future over major decisions over N.  In the present proceedings, both SWOs Mrs Lam and Ms So have opined that N’s sole custody, care and control should continue to vest in Mother. OS has also opined that the proposed change by Father in N’s status quo does not work in the best interests of N.

404.  Having considered all the circumstances of this case, I find no reason to vary the status quo and I am also satisfied that it is in N’s best interests for Mother to retain N’s sole custody, as well as sole care and control.

405.  However, I am of the view that Mother should consult Father over the following specific issues:-

(1)  N’s schooling;  

(2)  N’s psychiatric and/or psychological treatment, if any in future.

I.9     Access

406.  I have directed the Father and Mother to submit draft orders in their respective Closing Submissions over access arrangements for this Court’s consideration.  Father’s draft order for access, in the event of Mother continuing to have sole custody, care and control of N, is to the following effect:

(1)  He is to have the following defined access:

(a)  Weekly Defined Access: Friday (from picking up after school or from the Ward’s home at 9:30 am if the Ward does not attend school) until 11:30 am on Sunday morning.

(b)  School Long Holidays:

(i)  School long holidays (except summer holiday): half time with Father and half time with Mother.  Whoever takes the 1^st half of the holiday will have the 2^nd half the following year; and

(ii)  School summer holiday: Father shall have staying access on alternate week, from the N’s home at 9:30 am on Monday to 9:30 pm on Sunday.

407.  Mother’s proposals are that Father to have defined access to N every Saturday which include the following:

(1)  from 10:30 am to 1 pm at the Contact Centre of HKFWS;

(2)  from 1 pm to 9 pm in public place, either the Tai Kok Tsui Public Library, the clubhouse of One SilverSea, Olympian City Mall or Harbour City Mall(“Public Places”) with the assistance of a professional nanny agreed upon by the parties within a deadline , failing which the nanny to be appointed by the Court;

(3)  if HKFWS is unavailable for access, access shall take place in the Public Places in the presence of the nanny from 10:30 am to 9 pm with pick up at the Social Welfare Office as arranged by the SWO at 10:30 am.

408.  Ms So’s recommendation in her SWR of 30 September 2020 recommended that Father be granted defined access at the Contact Centre every Saturday and be supervised by a SWO for 12 months and that a progress report was suggested.  In short, Ms So’s recommendation was to maintain the present status quo re access.

409.  In his Closing Submissions, OS agreed that the present access arrangements ie access sessions held at the Contact Centre should be extended or enhanced to forge a progressive path towards normalization of the access regime with resumption of staying access as the goal.

410.  All the above proposals and submissions were made at the trial which have now overtaken by the latest development.

411.  After the trial, this Court received a letter dated 4 December 2020 from OS informing that Court that HKFWS had decided to terminate the provision of its services at the Contact Centre at the end of December 2020 due to alleged breach of the duty of confidentiality on the part of Mother as enshrined in the service agreement signed by the parents with HKFWS.  There were to be 4 scheduled access sessions before termination.

412.  Through the assistance of the staff of HKFWS and in the presence of OS, the parties were able to hammer out an agreed plan through amicable discussion for the sessions respectively on 5 and 7 December 2020 to take “offsite” and for longer hours.  Ms Cheung of HKFWS had agreed to continue to be present to facilitate, and the plan was for the parents to meet again with the staff of HKFWS and OS to hammer out the arrangements for the remaining two sessions on 12 and 19 December 2020. The parents have also agreed that they will apply for therapy service from Asian Academy of Family Therapy (AAFT) and the staff at HKFWS will help to liaise. 

413.  At this Court’s further direction, OS has sent a letter dated 19 January 2021 to update the Court on N’s access sessions.  In light of the latest development, I will set out hereunder my preliminary views on access.

414.  Having considered the SWRs and the OS Reports, I am of the view that staying access is premature at this stage.  However, Father should continue to have access every Saturday.  From Mother’s proposed draft order, Mother seems to agree to Father having access between 10:30 am to 9 pm every Saturday subject to her conditions.  I do not think those conditions are really necessary. In particular, I do not find it is necessary to involve any professional nanny.  As seen in the access sessions on 19 December 2020 and on 2 January 2021, N was quite capable of running away from Father and getting on a taxi on her own to go home when she felt a bit unhappy or tired or when she had a disagreement with Father.  On the other hand, Father has also shown understanding and for the 5 December 2020 session, Father agreed to cut short the access after N saying she did not feel quite well after spending about one and half hours with Father.

415.  I find that 10:30 am to 9 pm, namely a period of some 10 ½ hours may be a long time to be spent in a public place or public places and realistically, none of the access sessions mentioned by OS in his latest letter had lasted that long.

416.  I am of the preliminary view that there should be flexibility and realistically, the time should be shorter if access is to take place in a public place.  Quality of access is more important than quantity of access.  A better arrangement would be say for Father to meet N at about 11:30 am , have lunch with N and then spend some time with N after lunch either at the Kowloon Cricket Club or a public place unless N is willing to go to the Kowloon Tong Premises, and that access is to end, say not later than 6 pm. I am also of the view that the entrance of the Kowloon Cricket Club may be a good pick up and delivery venue for N and that Father and N should travel through public transport during access.

417.  Father has to seek N’s consent before involving other family members to his access sessions with N.  Afterall, the access sessions are for Father to rebuild his relationship with N which Father should concentrate on first.  Father also has to seek N’s consent before taking video recordings of N.  

418.  Mother has agreed to make up access in the event if N is unable to attend any of the weekly Saturday sessions.  Mother has agreed to Father to provide N with a mobile telephone with a new number for Father and N to communicate direct with each other.  I understand that Father has no objection to this.

419.  I am also of the view that the parents should each provide an undertaking not to denigrate or criticize or belittle each other in any manner in the presence of N.

420.  The access arrangements should be reviewed after 6 months, and that an updated SWR and OS Report be submitted in relation to access in 6 months’ time.

421.  The above are my preliminary views in relation to access.  I will ask the parties to try to agree, with the assistance of OS, a draft order on access for this Court’s approval.  If the parents cannot reach an agreement over the draft order, they and OS are to each submit further written submissions within 28 days of not more than 10 pages on their respective proposed access arrangements and this Court will deal with the same on paper.

422.  Pending any further order, the May 2017 Access Order as supplemented by the September 2017 Access Order shall continue save that the access venue is to be either the Kowloon Tong Premises or a public place, to be agreed by N, and the pick up/delivery point to be agreed by the parents, failing which at the entrance of the Kowloon Cricket Club.

J.    COSTS

423.  As for costs, although Father has failed in his application, I have also found Mother has not been proactive in encouraging access or encouraging N in improving her relationship with her father and also both parents have involved N in their litigation.  Having considered all the circumstances of this case, I make no order as to costs save that Mother’s own costs be taxed under Legal Aid Regulations.  This is an order nisi, which shall be made final after 21 days.