NPYJ v. SMRC

CAMP 155/2020

[2020] HKCA 832

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 155 OF 2020

(ON AN INTENDED APPEAL FROM FCMC 9098 /2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  This is the respondent’s further application for leave to appeal the decision given by Deputy District Court Judge Josephine Chow (“the Judge”) on 26 June 2020 adjourning the respondent’s summons dated 4 June 2020.

2.  The respondent’s application for leave to appeal was refused by the Judge on 24 August 2020.[1]

3.  The respondent asked to have an oral hearing of this application. Having considered the papers and the parties’ written submissions, we consider it is appropriate to determine the application on paper without an oral hearing, pursuant to Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A.     

Relevant facts

4.  The petitioner (“Mother”) and the respondent (“Father”) were formerly married.  They have two daughters (“Children”) born respectively in 2008 and 2011.

5.  By a consent order dated 4 July 2019 (“Consent Order”)[2], the parties were given joint custody of the Children, with care and control to Mother and reasonable access to Father. 

6.  The Consent Order provided that Father’s access was to be implemented progressively, with a progress report on the first access session to be prepared by the social welfare officer and a first review hearing was also scheduled.[3]        

7.  The first access session took place on 8 July 2019.  Only the elder daughter attended it; the younger daughter had refused to meet Father.[4]  The second access session took place on 19 July 2019, with the younger daughter continued to refuse to meet Father.  No further access session could be arranged due to the unwillingness of the Children to meet the respondent.[5]    

8.  Thereafter, Father had taken out a number of applications for defined access, temporal removal outside Hong Kong, variation of care and control as well as permanent relocation of the Children outside Hong Kong.  A summary of these applications was given in HH Judge A Tse’s judgment dated 10 July 2020.[6] Father has also provided a chronology of his outstanding applications since the Consent Order.[7]

9.  Among these applications are two summonses both issued on 13 May 2020.  The first is for variation, and transferring, of the care and control of the Children to the respondent and for permanent relocation of the Children to the United Kingdom (“Variation Application”).  The other summons is for enforcement of the Consent Order.  The two summonses came before HH Judge A Tse on 18 May 2020.  The Variation Application is heavily contested.  The judge adjourned both applications to 18 November 2020 for a pre-trial review.  She gave directions on the filing of evidence, and ordered a further updated social investigation report and an international social investigation report to be made available no later than 14 days before the adjourned hearing.        

The summons dated 4 June 2020

10.  In the meantime, on 4 June 2020, Father issued a summons seeking interim defined access of the Children (“Interim Access Application”).  The summons set out, in four pages, meticulous details of proposed access arrangements for the Children, including staying access and overseas access during different holidays. 

11.  The Interim Access Application is supported by Father’s 47^th affidavit.[8] In the affidavit, Father complained that Mother was in breach of the Consent Order in not delivering the Children to him, and that her conduct was “a cruel campaign of abuse, alienation, harm and damage” of the Children.  It is said that Mother is wrong to let the Children make the decision on whether to see him, and the interim access applied for has the beneficial effect of removing the decision from the Children.  Father also contended that it is in the best interests of the Children that they are not “wrongly led to believe that it is acceptable to disregard orders of the [court]”.

12.  Father further made the point that it will be some time before the trial of the Variation Application takes place, hence it is necessary to make an urgent application to address and remedy the breach of the Consent Order and the “abuse, alienation and damage” inflicted on the Children.           

13.  The summons was listed for a 15-minute hearing on 26 June 2020 before the Judge.  At the hearing, the Judge directed that the further updated social investigation report called by HH Judge A Tse in connection with the Variation Application (see [9] above) should also cover the Interim Access Application, and adjourned the summons to 18 November 2020.      

Application to the Judge for leave to appeal

14.  By summons dated 8 July 2020, the respondent applied for leave to appeal the Judge’s order adjourning the Interim Access Application to 18 November 2020.  He raised the following grounds in his draft notice of appeal:

(1)  The Judge failed to consider what is in the best interests of the Children.

(2)  The Judge’s decision infringed the Children’s rights and the respondent’s rights under Hong Kong Bill of Rights Ordinance, (“BORO”) Cap. 383 and the United Nations Convention on the Rights of a Child.

(3)  The Judge failed to consider the clear terms of the Consent Order.

(4)  The Judge wrongly assumed and concluded that the respondent’s access to the Children is supervised, which is contrary to the Consent Order.

(5)  The Judge deprived the Children of their right to: (i) celebrate Easter and Christmas in England with the respondent and his parents; (ii) attend church with the respondent and his parents, and (iii) see their paternal grandparents.

(6)  The Judge’s decision further bolsters, entrenches and supports Mother’s campaign of child abuse, alienation, damage and harm to the Children.      

15.  The Judge dealt with the application for leave to appeal on the papers.  By her decision handed down on 24 August 2020, the Judge refused to give leave and dismissed the summons with costs.

16.  The Judge was of the view that the intended appeal has no reasonable prospect of success for the following reasons:

(1)  The decision to adjourn the Interim Access Application to 18 November 2020 is a case management decision.

(2)  Father has not been able to have smooth access with both daughters.  In light of the Children’s negative response to access with Father, it would not be in the best interest of the Children to order interim access without further input and recommendation from the social welfare officer.  It would be in the Children’s best interests for Father to put the matter of access on hold, pending further investigations by the social investigation officer.

(3)  Since a further updated social investigation report had been ordered in connection with the Variation Application, it will save time and costs for the report to also cover the Interim Access Application.  With the report, the court will be able to see the latest development and have further recommendation on access by Father.  

(4)  The arguments on the BORO were too far-fetched.

The present application

17.  By summons filed on 7 September 2020, Father made a further application for leave to appeal to this Court.  The proposed grounds of appeal are the same as those advanced before the Judge. 

18.  In his written statement in support of the application, Father reiterated that the Interim Access Application was prompted by concern that it may be a year or more before the trial of the Variation Application takes place.  It was also said that the effect of not seeing the Children is “catastrophic, devastating and tragic” for the Children and himself.  Father also argued that the Judge’s decision to adjourn the application is plainly wrong in law, considering the time taken by the Family Court to review access and deliver judgment, and that the adjournment is tantamount to a sanction of no access to the Children.  He further argued that the Judge was wrong to take into account the social welfare officer’s recommendation that access should in some way be subject to the Children’s wishes in that this is putting an intolerable and wrong burden on young children.

19.  Mother opposes the application.  In her written submission, Mother pointed out that the Judge had made a case management decision to adjourn the Interim Access Application, and that it was in the nature of an interim order.  She argued that appeals against interim orders made in family proceedings should be discouraged and case management decisions should only be disturbed in very exceptional circumstances.  She further argued that the Judge did not exercise her discretion under a mistake of law and there was no injustice done to Father, and that the adjournment ordered is in the best interests of the Children and also serves to save time and costs.

Reasons for our decision

20.  Section 63(A) of the District Court Ordinance, Cap. 336 provides that leave to appeal shall not be granted unless the court is satisfied that (a) the appeal has a reasonable prospect of success, or (b) there is some other reason in the interests of justice that the appeal should be heard.

21.  For the reasons discussed below, we are of the view that the present application for leave to appeal should be dismissed.

22.  First, as pointed out by the Judge and Mother, the decision to adjourn the Interim Access Application to 18 November 2020 is an interim order and a case management decision.  In general, appeals against interim orders are not to be encouraged as they tend to distract rather than focus parties’ attention on the real issues of the case, apart from incurring additional and, in most instances, unnecessary costs and time.  In the specific context of interim orders made in proceedings relating to children, it has been noted in Rayden and Jackson: Relationship Breakdown, Finances and Children at [49.55] that:

“Where the court makes an interim order appeals are actively discouraged as the usual remedy will be to invite the same court to review the provisions of that order at a later hearing. Necessarily, interim orders often call for difficult decisions to be made by and the lower court should endeavor to make such orders in a way which causes the least amount of harm to a child in that interim period. The court on appeal will be slow to interfere in decisions which are only intended to last for a relatively short period of time.”

23.  It is also well established that case management is pre-eminently within the province of the trial judge and the appellant court will only interfere in very exceptional circumstances: Cheung Yee-mong v So Kwok-yan [1996] 2 HKLR 48, 51.  This Court has consistently held that an appellant faces a high hurdle in showing that the first instance judge had gone clearly wrong and made orders which clearly involved an injustice or an inability for the trial court to carry out its task or had erred in principle or that his order was irrational: see Lee Tak Yee v Chen Park Kuen [2001] 1 HKLRD 401; Kan Miu Wah v Aeroflot Russian International Airlines (unreported) CACV 142/2006; and Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887. 

24.  In the present case, the application before the Judge is an access application.  Even though it only seeks interim access pending the determination of the Variation Application, it is nevertheless an access application affecting two young children.  The paramount concern of the court in adjudicating on the application is the welfare and best interests of the Children. 

25.  The indisputable fact is that the Children react negatively to access by Father.  Since the Consent Order, only two access sessions could be arranged with the elder daughter and none with the younger daughter.  The 6 February 2020 social investigation report reveals that the Children have clearly and repeatedly expressed their refusal to see Father, and also resisted Skype access by the paternal grandparents.  It also reports that the younger daughter has been receiving regular professional help with a child therapist. The reporting social welfare officer did not recommend defined access or the Children undergoing overseas trips with Father, but considered access supervised by social welfare officer was worth trying.  Father, however, strongly opposed to supervised access.[9]   

26.  In these circumstances, the court when approaching the Interim Access Application must give careful consideration to such matters as the Children’s willingness and readiness to see Father, how they would react to Father’s proposed interim access, and whether the proposed access arrangement is workable and its potential impact on the Children’s wellbeing and their relationship with Father in the long term.  It would be prudent for any judge dealing with the Interim Access Application to ascertain the latest position, including whether there has been any developments or changes in the Children’s response to access by Father and the professional views on defined and unsupervised access.  It would be, not only appropriate, but also necessary, to obtain an updated social investigation report.  It would also be prudent not to disturb the status quo and to adjourn the application until after the updated social investigation report is available.       

27.  Thus viewed, the Judge’s decision not to make any determination on the Interim Access Application or make any temporary or interim access arrangement at the hearing on 26 June 2020 cannot be faulted. The complaint that the Judge failed to have regard to the interests of the Children, or that the adjournment is not in the best interests of the Children, cannot stand.  

28.  Since an updated social investigation report had already been called for in connection with the Variation Application, it would save time and costs to require the reporting social welfare officer to also explore, consider and report on with the interim access arrangement proposed by Father.  The Judge’s direction in this regard is entirely appropriate. Further, as the report was to be ready for the adjourned hearing of the Variation Application on 18 November 2020, it follows that no criticism can be levelled at the Judge’s direction to adjourn the Interim Access Application to that hearing.

29.  Father complains there has been a breach of the Consent Order.  Two points have to be made on this.  First, Father’s reasonable access was to be implemented progressively and subject to review after the first review hearing.  As shown in the report on the first access session, the younger daughter refused to go to any access session while the elder daughter was hesitant, to say the least, about future access.  Second, as pointed out above, no further access could be arranged after the second access session as both daughters adamantly resist it.  In the light of these facts, the arguments about breach of the terms of the Consent Order, the adjournment is tantamount to sanctioning no access to the Children, and the Children should not be led to believe that court orders can be disregarded are all misplaced.      

30.  This is not, as Father seems to think, about asking the Children to make a decision on whether to see him or making access subject to the Children’s wishes.  Rather, this is all about being sensitive to the Children’s wellbeing and what is in their best interests.  Their feelings towards Father, their willingness and readiness to have access with him, and the impact of access on their psychological wellbeing are relevant considerations that ought to be taken into account when reviewing and planning for access.  

31.  We note Father’s concerns that he has not been able to have access since July last year, and that it will be some time before the Variation Application is heard and determined.  However, as alluded to above, the adjournment is necessary to enable the court to have the social welfare officer’s input and to take an informed view on what is in the best interests of the Children.       

32.  Like the Judge, we do not agree arguments under the BORO or the United Nations Convention on the Rights of a Child are engaged.

33.  In short, the Judge did not err in law or in the exercise of her case management power.  We see no basis for disturbing her order adjourning the Interim Access Application to 18 November 2020 to await the updated social investigation report.

Conclusion and costs

34.  For the reasons set out above, the intended appeal has no prospect of success.  There is no other reason in the interests of justice that requires the appeal to be heard.  Accordingly, Father’s summons should be dismissed. 

35.  Applying the normal rule of costs follow event, we order Father to pay Mother’s costs of the application to be summarily assessed. Mother shall within 14 days from the date of this judgment lodge and serve her statement of costs for summary assessment.  Father shall within 14 days thereafter lodge and serve his statement of objection, if any.

36.  As the application is wholly devoid of merits, we make an order pursuant to Order 59 rule 2A(8) of the Rules of the High Court, Cap. 4A that no party may under rule 2A(7) request the determination of this Court to be reconsidered at an oral hearing inter partes.       

Disposition

37.  We make the following orders:

(1)  The respondent’s summons dated 7 September 2020 is dismissed.

(2)  The respondent pays the petitioner the costs of the application to be summarily assessed.

(3)  The petitioner shall within 14 days from the date of this order lodge and serve a statement of costs for summary assessment.

(4)  The respondent shall within 14 days thereafter lodge and serve a statement of objection, if any.

(5)  No party may request under Order 59 rule 2A(7) of the Rules of the High Court, Cap. 4A for a reconsideration of the determination of the application at an oral hearing inter partes.