CYL v. IJDI

FCMC 5935/2023

[2026] HKFC 109

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 5935 OF 2023

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J U D G M E N T
( Custody, Care and Control )

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Introduction

1.  This is the trial in relation to the custody, care and control, and access in relation to the two children of the family (“the Children”), namely:

i.  The first daughter, born in February 2008, aged 18 (“INJ”); studying at a special school for mentally retarded students in Hong Kong; and

ii.  The second daughter, born in September 2016, aged 10 (“IAS”); studying at an ordinary school in Hong Kong.

2.  At the time of the trial, INJ is still a minor but now is over 18 years old.  She was diagnosed to have autism, attention deficit and hyperactivity disorder, Acute Lymphoblastic Leukemia and moderate grade mental retardation at 2 years old.  Regardless of INJ’s disability or mental illness, it is no longer necessary for me in this judgment to determine her custody in these divorce proceedings.

3.  The petitioner (“Mother”) was born and brought up in Hong Kong.  She is now aged 54 and a full-time mother receiving Comprehensive Social Security Assistance for living.

4.  The respondent (“Father”) was born and brought up in Nigeria.  He is now aged 62 and doing business of organic skincare and cosmetics in Hong Kong.  He had a first marriage with 2 sons in Nigeria[1].

5.  The parties registered their marriage in Nigeria on 19 July 2013.

6.  On 31 May 2023, the Mother petitioned for divorce (based on the Father’s unreasonable behaviour) in Hong Kong.  As the Father filed an answer contesting the divorce, the Decree Nisi has not yet been granted by the court.

7.  Pursuant to my order made on 17 March 2025, the trial of the children matters be set down for trial starting from 24 November 2025.  In the middle of the first day trial at about 11:40am, the Father suddenly left the court with no reason and did not give any evidence nor call any witness for him.  He did not lodge any closing submissions as directed by this court but subsequently sent a letter dated 16 June 2026 stating, inter alia, that he will be leaving Hong Kong by the end of June.

8.  The Mother attended the trial and gave oral evidence.  As directed, her solicitors lodged the closing submissions.

Legal principles

9.  Section 3(1)(a) of the Guardianship of Minors Ordinance (Cap. 13) (“GMO”) sets out the general principles when it comes to matters relating to the custody or upbringing of a minor:

(1)  In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property—

(a)  in any proceedings before any court … the court—

(i)  shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to—

(A) the views of the minor if, having regard to the age and understanding of the minor 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; and

(ii)  shall not take into consideration whether, from any other point of view, the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father.

10.  In H v N [2012] 5 HKLRD 498, Jeremy Poon J (as he then was) set out the correct approach to the “best interests” principle:

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

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

26. In assessing the best interests of the minor, the Court must have regard to all the relevant factors. Section 3(1)(a) has only prescribed two specific factors that the Court must have regard to: (a) the minor's views, if having regard to his age and understanding 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. I will return to the minor's views and the social welfare report in a moment.

In recent years, when applying the welfare principle under s.3(1) of the GMO, judges in the Family Court have consistently adopted, with minor modifications to suit the local circumstances, the matters specified in s.1(3) of the English Children Act 1989, which have now come to be known as "the welfare checklist". Those factors are:

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

(b)  his physical, emotional and educational needs

(c)  the likely effect on him of any change in his circumstances

(d)  his age, sex, background and any characteristics of his which the court considers relevant

(e)  any harm he has suffered or is at risk of suffering

(f)  how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs

(g)  the range of powers available to the court under the 1989 Act in the proceedings in question.

It has more or less become a standard practice in the Family Court in cases involving children to make use of "the welfare checklist".”

Social Investigation Reports

11.  The Social Welfare Officer, Ms Cheung Wai-tak, Natalie (“SWO”), prepared a Social Investigation Report and 3 Progress Reports respectively dated 9 May 2024, 3 October 2024, 3 February 2025 and 29 August 2025 (collectively “SIRs”).

12.  The SWO recommended in the Progress Report dated 3 October 2024 that sole custody of the Children be granted to the Mother with defined access to the Father.

13.  Later, the SWO recommended in the 2 subsequent Progress Reports dated 3 February 2025 and 29 August 2025 that joint custody of the Children be granted to the parties, care and control to the Mother with defined access to the Father on every Saturday 2 to 4pm at the Specialised Co-parenting Support Center (“SCSC”).

14.  The SWO also testified in the court and gave oral evidence at the trial.  In brief, her evidence is set out below:

i.  The parties’ relationship is not good and they have to rely on the assistance of the SCSC in terms of the access arrangements;

ii.  IAS clearly expressed her wish to continue to reside with the Mother;

iii.  The SWO is satisfied with the present living condition of the Mother;

iv.  The SWO disagree that an age limit is to be set for the Father to have the staying access with IAS.  It all depends on whether IAS feels comfortable with the access arrangement.

Mother’s evidence

15.  Apart from filing her Form J and her affirmation filed 2 July 2025, the Mother also testified in the court, whose evidence is briefly as follows:

i.  The Mother agrees with the recommendations made by the SWO in the latest Progress Reports dated 3 February 2025 and 29 August 2025.

ii.  In addition, she proposes the compensation arrangement that in the event the defined access has to be cancelled by either party, the Father or the Mother has to give at least 3 days’ notice to the other and the SCSC; and compensation for such loss of access shall be made within 4 months by giving at least 3 days’ notice;

iii.  She further elaborated the incident happened in about May 2023[2], which will be discussed in the latter part of this judgment.

Father’s evidence

16.  The Father filed his Form J[3], his own affirmation[4] and the affirmation of his girl-friend, Ms Kwan[5] on 12 May 2025.

17.  He asked for sole custody, care and control of the Children.  Ms Kwan said in her affirmation that she was living with the Father and would assist him to take care of the Children. As he and Ms Kwan did not attend the trial for cross examination by the Mother’s lawyer, I refuse to attach any weight to these affirmations and Form J filed.

The ascertainable wishes and feeling of the Children

18.  In the context of the age of the Children, INJ and IAS (now 18 and 10 years old respectively), their views are important in the court’s determination of their future arrangements.

19.  According to the SIRs, the Children share a close emotional bond with the Mother. I accept that the Mother is their main carer and that IAS clearly expressed her wish to live continuously with the Mother.  Besides, INJ is now over 18 and is currently residing with the Mother.  It would not be in the best interest of IAS for the court to separate IAS with INJ since the relationship of two sisters is very close.

Effect on the Children of any change in circumstances

20.  The Children are well taken care of, mentally, physically and educationally, by the Mother.  As reflected in the SIRs, IAS got good conducts and academic results in school.  It shows that the Mother is a capable mother.  Hence, I consider that the status quo shall be maintained.  Any drastic change to the status quo would be undesirable to them.

21.  More importantly, I am satisfied that the maternal grandmother who is living together also assists the Mother to look after the Children.

Incident happened in about May 2023

22.  The Mother said that on or about 21 May 2023, the Father took IAS away to stay overnight with him and Ms Kwan.  After a few days later, IAS was taken back to the Mother. Subsequently, IAS told the Mother that:

i.  one night, she was brought to sleep with the Father and Ms Kwan;

ii.  the Father had sex with Ms Kwan in front of IAS.

23.  The Mother considered that it was an inappropriate incident. 

24.  In my view, this alleged incident happened when IAS was only about 6 years old and she might not be able to tell exactly what happened to the Mother at that time in view of her tender age.  In any event, the evidence before me is more than sufficient for the purpose of determination of the custody of IAS.  I consider unnecessary to make any findings of facts of this alleged incident.

Conclusion

25.  In principle, I agree with the recommendations made by the SWO in the SIRs as the Father did not challenge the same as well as the evidence given by the SWO at the trial. The SWO made no objection to the compensation arrangement as proposed by the Mother at the trial.  I accept it as this arrangement is fair to the parties.

26.  For the stay access, I am of the view that it shall not be granted in the meantime since IAS is still very young.  It will be considered by the court in the future if IAS clearly expresses her wish or willingness to stay overnight with the Father.  More importantly, the Father has very likely left Hong Kong as at the date of this judgment but I need further investigation and confirmation by the SWO in the progress report to be ordered below.  

27.  Having carefully considered the recommendations made by the SWO in the SIRs, all the relevant factors and circumstances, and in the best interest of IAS, I make an order that:

i.  parties do have joint custody of IAS;

ii.  the Mother do have sole care and control of IAS with defined access to the Father on every Saturday from 2pm to 4pm at SCSC;

iii.  reasonable access by telephone, video call or text message once a week be granted to the Father;

iv.  in the event the defined access has to be cancelled by either party, the Father or the Mother has to give at least 3 days’ notice to the other and the SCSC; and compensation for such loss of access shall be made within 4 months by giving at least 3 days’ notice;

v.  usual restriction for removal out of jurisdiction be made;

vi.  parties shall continue to receive parenting coordination services from SCSC until further order;

vii.  progress report be filed after 6 months, in which the SWO shall recommend, among others, if parenting coordination services from SCSC is still needed and stay access of IAS be granted to the Father. 

28.  As to the question of costs, I make an order nisi that there be no order as to costs regarding the children matters including all costs reserved, and that the Mother’s own costs be taxed in accordance with the Legal Aid Regulations, which shall become absolute unless any of the parties apply for variation with supporting affirmation by summons within 14 days.