BDL v. CMS

FCMC 9446 / 2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGIONM

MATRIMONIAL CAUSES

NUMBER 9446 OF 2014

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RULING
(Access arrangements for a young child)

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Introduction

1.  This is an application by a Petitioner father for defined access to the only child of the family, a little girl LM, who turned 2 years of age on the XX August 2015. Arrangements for LM have been hotly contested since the mother left the former matrimonial home in July 2014 with her. The father initially sought interim custody or, in the alternative reasonable access to include staying access. It was clear from his affidavit dated the 23 July 2014 that he was of the view initially that LM should reside with him and in the alternative that she should stay over at his house for three nights out of every 7. The father’s case now is that he would like staying access to be increased quickly with a view ultimately to having joint custody and shared care of LM.

2.  The mother in turn is not opposed to staying access per se but says that it should be increased at a much slower rate and only once LM turns three years of age. The mother also wishes to have sole custody and care and control of LM

3.  Unfortunately the level of conflict between the parties remains very high. I do not intend to go into all of the details here but suffice it to say that each continues to make many accusations against the other. There was also an unfortunate incident in February 2015 which led to the police being called. Consequently on the 14 May 2015 the father was bound over for 12 months. Although, as I have said, I do not intend to go into the details of this incident, amongst others, it nevertheless remains indicative of the continuing poor relationship between the parties. This is also highlighted in the updated Social Investigation Report dated the 30 September 2015.

Court orders to date

4.  On the 1 August 2014 I made an interim order as follows:

6. The Petitioner [father] shall have interim defined access of the said Child of the family as follows:

(a) Every Tuesday and Thursday

6:00pm to 7:30pm

· commencing 5^th August 2014

· the said Child be picked up and dropped off at the designated place at Elements, Kowloon

(b) Every Saturday

1:00pm to 7:30pm

· commencing 9th August 2014

· the said Child be picked up and dropped off at the designated place at IFC, Central, Hong Kong

(c) Additional Access on 2^nd August 2014

4:00pm to 7:00pm

· the Child be picked up and dropped off at the designated place at IFC, Central, Hong Kong

5.  On the 21 October 2014 – i.e. nearly three months later, a further order was made as follows:

1. Paragraph 6(b) of the Order dated 1 August 2014 shall be varied to the extent that the Petitioner shall have interim defined access to the child of the family from 10am to 7pm on each Saturday to commence on 25 October 2014.  The child shall continue to be picked up and dropped off at IFC, Central, Hong Kong

6.  On the 13 January 2015 a third order was made which dealt inter alia with the arrangements over Chinese New Year, Easter and single public holidays up to date as follows:

1. The Petitioner [father] shall have the following additional access to the child of the family, namely, LM, on the following dates:-

· 20 February 2015 from 10am to 7pm

· 3, 5, 10 2015 and 12 March 2015 from 10am to 7pm

· 5 April 2015 from 10am to 2:30pm

· 7 April 2015 from 10am to 7pm

· 25 May 2015 from 10am to 7pm

· 1 July 2015 from 10am to 7pm

· 1 October 2015 from 10am to 7pm

The child of the family shall be picked up by the Petitioner at the Ferry Pier at Discovery Bay and shall be dropped off by the Petitioner at the Central Ferry Pier;

2. There shall be a further Children Appointment on 7 October 2015 at 9:30am;

7.  By that stage I had had the benefit of receiving a short report from Dr B dated the 13 October 2014. In that report she sets out the appropriate access regimes for infants and toddlers from a general perspective. She met both parents but she did not have the opportunity to see LM with each of them. It is of note that the recent Social Welfare Report makes reference to this report also and has been considered by the Social Welfare Officer when making her most up to date recommendations. In so far as the generalities are concerned Dr B said as follows:

APPROPRIATE ACCESS FOR INFANTS/TODDLERS

This section reflects the generally held views of researchers, experts, and professionals in the field of developmental psychology.  Varying views can, of course, always be found in the literature, but the below information reflects the most widely held - and accepted - beliefs that have been empirically demonstrated through available research.

Developmental Needs of Infants/Toddlers

It is widely recognized that the primary task of children younger than 2 is to develop secure attachments and learn to trust.  Research on attachment theory indicates that infants are acutely aware when a person they are used to seeing is suddenly missing from their daily lives.  Therefore, long periods away from an attachment figure can prove very distressing for children as they may feel that the absent parent has left forever.

Children this age need stability and predictability of routine.  Young children have basic sleep, feeding, and waking schedules, and it is important to keep the child on these schedules regardless of which parent is present.  It is most helpful if parents can share information about the toddler’s daily routine with each other and how they are parenting when the child is in their care.

Access, Care/Control for Infants/Toddlers

A number of different schedules can be put in place for children this age.  However, for young children, it is not recommended for either parent to be away from the child for more than 2-3 days at a time.  The infant should have one primary home base, and the non-residential parent should take on the burden of commuting, not the child.

Differing views exist on overnight access for infants and toddlers.  However, most experts suggest that stressing the attachment system (by separating the child from the primary attachment figure for more than a few hours) during the first 2 years of life has long-term negative impact for children.  Frequent changes of caregiver and location risk disorienting a young child who has not yet developed the capability for coping with such stress.  Note:  The undersigned supports this view, and clinical experience has led to the observation that infants who begin overnights before they have the capacity for adapting to such change are vulnerable for developing anxiety and behavioural issues when slightly older (3-6 years old), often resulting in later disruption to smooth access and early referrals to play therapists.

Overnight access should always be introduced gradually, and must depend on a number of factors, including the child’s temperament, speech/language development, and developmental level.  Typically, it is suggested that overnight access be considered when the child has attained a good command of language, which then leads to an understanding of timeframes so that “out of sight” is no longer “out of mind” for the child (usually around 3 years old).

Video or Skype access is recommended at this stage, and can occur daily.  The length of the video access should be determined by the child’s ability to remain focused. For infants and toddlers, this time can be very short, and parents should endeavor to understand this, rather than focus on blaming the other parent for not facilitating longer access.  By the same token, a set time each day should be determined whereby the child is made available for Skype access with the other parent, and the parent caring for the child should ensure that the child has had time to become calm and focused before the call takes place. 

It should be noted that there are no research findings suggesting that frequency of contact alone has an impact on the child’s well-being.  However, there are considerable findings indicating that qualitative factors, such as closeness, engaging in bathing/feeding routines, etc, do promote positive functioning in children.  As such, it is not the amount of time each parent spends with the child that promotes the bonding and attachment, but the way in which the parent interacts with the child during their time together.

8.  In so far as this case is concerned Dr B added:

SPECIFIC CONSIDERATIONS FOR LM

The above guidelines were compiled from literature and research designed to address general issues related to divorce in parents of young children.  However, all literature stresses that other factors must be taken into consideration, and each case must be viewed individually.

Although the undersigned’s contact with the parties has been very limited, some areas to be highlighted have been identified through interview and review of documents. There are briefly listed here:

Conflict and Domestic Violence

Both parties admit to a history of high conflict, physical violence, and a number of incidents resulting in police involvement.  This is very damaging for LM, and must cease immediately.

Observations noted by the undersigned during the joint interview suggests that each party disagrees with the other on most points raised for discussion, even minor issues.  If the parties cannot communicate without conflict, then handovers should be conducted by a third party to avoid any possibility of an incident occurring.

Parties’ mental history

Each party accuses the other of being aggressive and having various psychological issues. Both parties refer to a previous suicide attempt by Ms. C when she was pregnant.  In light of these factors, the high level of conflict, and the history of domestic violence, it would be helpful for the psychological stability of each parent to be further explored in addressing the question of access/care and control.

Sharing of Information Between Parties

A parenting coordinator should be appointed, and a formal written Parenting Plan that details all aspects of LM’s current development should be drawn up.  Clear guidelines will minimize conflict between the parties.

Given that direct communication is difficult for the parties at this stage, it is suggested that a parenting notebook be used.  This notebook should travel back and forth with LM, and should contain information including foods she is eating, sleep routines, any medical issues, etc.  A good rule of thumb is to record something in the notebook if it is information that the party would want to know themselves if the situation were reversed.  The notebook is not a forum for criticism of the other parent.

Access

The following recommendations are deemed suitable for LM regardless of which parent has care and control.

At this stage, the most suitable current access arrangement should involve one period of 3-5 hours and one period of 8 hours spaced through the week if it involves travel to the handover/access location.  It is essential that any access arrangement be structured so as to minimize the number of transitions LM must make.  This arrangement could potentially increase to two periods of 3-5 hours along with one period of 8 hours if the access can take place close to LM’s home to mitigate the disruption to her schedule due to travel.

The access schedule must also take into account LM’s need for feeding and naps.  It is untenable for her to be out for a long stretch of time without a home base to have quiet time after a long outing.  The parties are urged to seek a viable solution to this rather than decreasing access.

Vacations that vary significantly from regular access schedules are not indicated at this early age.

Although it would be possible to consider an access arrangement that involves an overnight for LM within the next 18 months, the distance between the parties’ residences, their lack of cooperation, and high level of conflict render this impractical until these issues can be address.  Moreover, her developmental readiness should be assessed by a psychologist before overnights begin.

Given LM’s young age, access arrangements should be regularly revisited and adjusted as she matures.  The next review should take place when LM reaches 2 years old.  Given conflict levels, recommendations should be made under the guidance of a professional.

9.  As I have said it appears that the high level of conflict between the parties has continued unabated. This is a matter of some considerable concern. However on a positive note they are now both attending a co parenting course at X’s Counselling Service. It does not appear though that a parental co-ordinator has been appointed. Nor have some of the other recommendations made by Dr B been implemented.  

The present position of the parties 

10.  The father, who is French, continues to live at the matrimonial home in Yuen Long. He is still working in the same job as before as a systems engineer and he is based at the ICC in Kowloon. He has formed a new relationship and his girlfriend stays over with him from time to time. His mother unfortunately had a heart attack and it is not clear whether she will be able to travel to Hong Kong as frequently as before. She is currently based in France. The father’s intention, once the matrimonial home is sold, is to move to Discovery Bay, so that he can be within close proximity of LM. I was told during the hearing that the father currently has some leave to take before the end of the year. Apparently he can only carry over 5 days. Thus he would like to utilize his leave to be with LM during this period.  

11.  The mother, who is Chinese, works in asset management. She recently started a new job after a career break following the breakdown of the marriage. Although her working hours are 8:30 am – 5:30pm, she has negotiated with her new employer so that she is presently able to work from home in the afternoons. I was told during the hearing that this means that she will have to forego some of her annual leave. The mother moved to Discovery Bay following the breakdown of the marriage and intends to reside there going forward. She will move to a new apartment imminently.

12.  LM who is 2 years old has just started attending a playgroup in Discovery Bay each week day morning from 8:30am – 11:00am. As indicated above she sees her father each Tuesday and Thursday early evening for an hour and a half and all day on Saturdays. She does not currently have overnight staying access with him.   

13.  It seems to be accepted that notwithstanding the ongoing difficulties between her parents that LM is attached to each of them.

Each party’s proposals

The father’s proposals

14.  The father proposes as follows:

The Father’s proposals

18. The Husband is agreeable to an order for joint custody with care and control to the Mother; in due course the Father would prefer a shared care and control arrangement whereby LM is in the care and control of the parent with whom she stays from time to time.

Access during school term:

	Day Access	Day Access	Staying Access
If the Father is living in Yuen Long	Tuesday (6pm - 7:30pm)	Thursday (6pm - 7:30pm)	Saturday 6pm) - Sunday (7pm)
	Staying Access	Day Access	Staying Access
If the Father moves to the vicinity of the Child’s residence	Tuesday (5:30pm) - Wednesday (8:30am) The Father to take LM to school the next morning.	Thursday (5:30pm* - 7:30pm)	Saturday 6pm) - Sunday (7pm)

Apart from the above, the Father would like to be able to take LM to school in the morning 2 or 3 times per month, or even arrive at her school earlier, with prior agreement with the Mother, to see LM before she starts school.

20. Access during school holidays:

i) As above save that during the Father’s holidays LM is able to stay with the Father for longer periods including time with him in France

21. Access before and after Public Holidays

i) The Father proposes that that LM has the opportunity to stay with each parent on an alternating basis before and after Public Holidays.

15.  The father further proposed during the hearing that he should have two days staying access with LM over the half term break in October from Friday 16 October at 5:30 pm to Sunday 18 October at 7 pm plus all day access on Tuesday and Thursday from 10 am – 7 pm. He proposed staying access at the end of the week again from Friday 23 October at 5:30 pm to Sunday 25 October at 7 pm. It is of note that the mother would then only have Monday, Wednesday and day time on Fridays with LM during that period.

16.  In so far as Christmas is concerned the father proposed that he should have continuous staying access with LM from the 23 December at 10 am until the 29 December at 10 am – i.e. for 6 continuous overnights.

The mother’s proposal

17.  The mother proposes as follows:

16. At present, LM is only 2 years 2 months old.  She has very limited language ability to express herself.  The Respondent is in doubt of LM’s readiness of access at this early age given the parenting articles submitted by the Petitioner also suggested that overnight access should not begin when the child is too young and there are high conflicts between the parties.

17. That is the reason why the Respondent asks for an updated psychologist report for assessing readiness of LM for overnight access.  The parties also attended co-parenting services at X’s Counselling Services in a hope that there could be some guidance on working out proper parenting plans for LM.

18. In view of the aforesaid, in view of the lack of a professional assessment of LM, the Petitioner is unable to accede to the Petitioner’s present staying access proposals.

19. Instead, she agrees with findings of the psychologist report and the contents of the co-parenting articles above cited to have staying access gradually introduced when LM attains the age of three.

Respondent’s proposals for interim/ staying access

20. The Respondent’s proposals regarding staying access are as follows:-

(i) Access before LM attaining the age of 3

(a) the current day access every Tuesday and Thursday from 5:45pm to 7:15pm; and every Saturday from 10:am to 7:00pm with pick up and drop off at IFC, Central.

(b) access on Wednesday from 8:00am -8:30am at Discovery Pier and the Petitioner to take LM to school after the said access.

(c) the above proposal (i)(a) takes into account that LM is now attending playgroup in the morning and wakes up early.  A 15 minutes advancement to the commencement of the day access; and pick up and drop off at IFC are meant to shorten the travelling time and distance for LM and would make it possible for LM to catch up with an earlier ferry at 7:30pm to return to Discovery Bay after access.

(ii) Access upon LM attaining the age of 3, staying access to be gradually introduced

(a) there be one 2-day one night staying access every 3 weeks from Friday 6pm to Saturday 5pm;

(b) for the week when staying access is arranged, there be day access on Tuesday from 5:45pm to 7:15pm;

(c) for the week when there is no staying access, usual day access on Tuesday, Thursday and Saturday applies.

(iii) Access upon LM attaining 3 years 3 months old

(a) there be one 2-day one night staying access every alternate week from Friday 6pm to Saturday 5pm;

(b) for the week when staying access is arranged, there be day access on Tuesday from 5:45pm to 7:15pm;

(iv) Access upon LM attaining 3 years 6 months old

(a) there be one 2-day one night staying access every week from Friday 6pm to Saturday 5pm;

(v) Access during LM’s term break in October and X’mas 2015

(a) day access on 20 and 22 October 2015 from 10:00am to 7pm.

(b) day access on 22, 24, 29, 31 December 2015 from 10:00am to 7pm.

(c) to pick up LM at Discovery Bay Pier and drop off at IFC Central.

In addition the mother asks for an updated psychologists report. She does not agree to any form of staying access at present. She points out that LM still sleeps with her and is not used to sleeping apart.   

The law in Hong Kong

18.  The general principles governing applications relating to children’s issues are set out in s 3 of the Guardianship of Minors Ordinance, Cap 13, which states that the court:

(i) shall regard the welfare of the minor as the first and paramount consideration…

19.  As I have said before in so far as access is concerned, this is generally said to be the right of the child, as opposed to the parent. In other words the child has the right to see and to have a relationship with both of her parents. The court is primarily concerned with the welfare of LM and not the relative rights of each of the adults with respect to her. 

The issues

What arrangements should be put in place for LM currently, pending final determination of the matters in dispute?

The Recommendations made in the Social Welfare Report

20.  In her report of the 30 September 2015 the Social Welfare Officer says inter alia as follows:

Remarks and Recommendations

29. The parents continue to have many disputes over the Child after the last Social Welfare Report.  Their disputes stated in paras. 12, 13 and 15 are only examples of their conflict.  They are quoted in this report as they can show the nature of their conflict and also reflect the parents’ attitude and their handling approach.  In a nutshell, the parents do not trust the ability of the other party to give proper care of the Child.  They believe the other party is lying and making unfounded accusation just to discredit the counterpart’s character and child care ability.  The Mother thinks the Father should seek professional counselling whereas the Father believes the Mother has psychological problem. They find it difficult to communicate with each other.  Despite so, the Investigating Officer is of the view that, for the best interest of the Child, the Child should not be deterred to get access with either parent as she is found to have formed a close relationship with both her parents in the present social investigation.  The parents should realize that their fight has already affected the emotions of the Child as stated in para. 12.  To help them resolve their differences and respect the different child care approach of the other parent, they shall try their best to keep the co-parenting service which they started to receive in this September.

30. The social investigation shows that both parents love and concern about the Child. They are also involved in taking care of the Child.  Regarding the custody of the Child, the Father requests joint custody whereas the Mother intends to acquire sole custody, hoping to end the fighting with the Father over the access of the Child.  Albeit their conflict, the Father is willing to compromise with the Mother on issues relating to the Child’s education, religion and medical.  Considered that custody will encourage the parent to continue contribute and participate in the Child’s life which is advantageous to the Child, the Investigation Officer recommends that joint custody be granted to the parents.

31. The main disputes of this case are on the access and care and control of the Child.  The Mother proposes to have sole care and control of the Child and firmly rejects staying access for the Father.  She opines that her view is supported by the psychologist’s report submitted to court in last October.  On the Father’s side, he wishes to have shared care and control with the Mother ultimately and wants to achieve this by stages to facilitate the Child’s adjustment.  Therefore, at the present stage, he wishes to extend his current day access with staying access.  The Investigating Officer has read the psychologist’s report and of the view that the key consideration of the access issue is on the parent-child relationship.  There is no doubt that the Child has established a close bonding with the Mother, who has been her principal care-giver ever since her parents’ separation.  Nevertheless, the Father has also formed a close relationship with the Child with whom she has attachment and identifies as her dad.  In addition, the Father has shown his dedication to the Child by his full involvement in the access, his endeavour to keep every access and his demonstration on his child care ability.  As for the Child, she has not exhibited any difficulties to adjust to 2 families and is now at the crucial age to develop bonding with her significant others.  Based on the above observation derived from the social investigation, it is for the best interest of the Child to receive love and care from both parents.  Hence, the Investigating Officer recommends the current day access of the Father be extended with staying access while the Mother is recommended to have the care and control of the Child.  Lastly, being an endearing member of the maternal and paternal families, the Child shall have the opportunity to get to know her roots.  This will be beneficial for her growth if she not only is exposed to the Chinese culture, but also to the French culture as well.  Hence, the Father’s wish to take the Child for holiday in France to meet her paternal relatives and to understand the culture of her paternal side shall be supported when the Child has adjusted to the staying access.

21.  In general I agree with those comments and recommendations in that it seems to me that the access arrangements for LM should continue to be progressed on a gradual basis. I am also mindful of the recommendations made by Dr B initially and the need to follow up on those recommendations notwithstanding the cost involved.

22.  When a child is very young as here and where the level of conflict between the parties remains high I accept that the issue of staying access must be approached cautiously. I also appreciate that developmental issues come into play as does the child’s attachment to all of the significant adults in her life. In this instance it appears that the child is close to both of her parents. Understandably perhaps she appears to be closer to her mother. Thus it seems to me that in the first instance the father should have the opportunity to spend consecutive days with LM without the child staying over with him. This will take place over half term and during the playgroup’s Christmas and Chinese New Year holidays. I will then progress matters to allow one overnight access on an alternate week basis but with effect from late February 2016 when LM will be over 2 ½ years old . This will also be subject to an updated report from Dr B. Given the concerns expressed by Dr B I would also direct that each party file a psychologists report on their own mental health. The father should also have the opportunity to take LM to school. He has indicated that he can take time off from work – so I will make an order that will allow his to take LM to playgroup on Wednesday’s and to then spend a little time with her after playgroup. If the playgroup allows parents to attend and to assist then he should be given that opportunity also.

23.  The order that I intend to make will allow for the father to spend quality time with LM on Christmas Eve and Christmas Day and likewise for the mother to spend quality time with LM over what are traditionally considered to be the more important days of the Chinese New Year holiday.

24.  Once overnight access has been instigated it seems sensible to then phase out some of the other shorter access periods. I would also highly recommend that the parties adopt some of Dr B’s other recommendations – including the introduction a parenting notebook to be passed between the parties. They should also consider appointing a parental co ordinator. If handovers are difficult they should also enlist the help of a third party – such as the mother’s domestic helper to assist.     

Access arrangements

25.  Consequently I will make an order as follows:

1) Subject to the Petitioner father’s undertaking to take time off  during the access stipulated below he shall have additional interim access as follows:

a) Two full consecutive days over half term week – but not overnight – from 10 am to 7 pm on Tuesday the 20 October and from 10 am to 7 pm on Wednesday 21 October 2015 (note the Wednesday is also a public holiday).

b) Two consecutive days over the Christmas holiday period on two occasions i.e. from 10 am to 7 pm on Christmas Eve - the 24 December and from 10 am to 7 pm on Christmas day - the 25 December plus from 10 am to 7 pm on Tuesday the 29 and Wednesday the 30 December. For a) and b) the child shall continue to be picked up by the Petitioner at the Ferry Pier at DiscoveryBay and shall be dropped off by the Petitioner at the Central ferry pier.

c) Two consecutive days over the Chinese New Year period from 10 am to 7 pm on Wednesday 10 February and Thursday 11 February 2016.  

d) The present arrangements on Tuesday’s, Thursday and Saturdays shall otherwise continue unaltered until e) comes into effect save that access on the 26 and 31 December 2015 and 6 February 2016 shall be suspended. The access on Tuesday’s and Thursdays shall take place from 5:45 to 7:15 pm but the child shall continue to be picked up and dropped off at the designated place at Elements, Kowloon.

e) With effect from the commencement of the playgroup’s new term on the 4 January 2016 access shall also take place on Wednesday mornings from 8 am until 1 pm or alternatively if the father can’t take that time off from work from 8 am until LM is dropped off at school by him. For the extended access LM to be picked up and dropped off by the father at Discovery Bay pier.

f) Commencing from the weekend of the 20 February 2016, following the Chinese New Year period, the father shall have overnight staying access from either Saturday at 6 pm until Sunday at 7 pm or Friday at 5:45 pm to Saturday at 7:00 pm on an alternate two week basis. For the avoidance of doubt the father shall have interim staying access from 6 pm on Saturday 20 February to Sunday 21 February at 7:00 pm. The following week the father shall have day access on Saturday 27 February 2016 from 10 am to 7:00 pm. The next weekend the father shall have overnight staying access from 5:45 pm on Friday 4 March to Saturday 5 March at 7:00 pm. The following week the father shall have day access on Saturday 12 March 2016 from 10 am to 7:00 pm and so on and so forth. Paragraph 1 of the order dated the 21 October 2014 shall be varied accordingly. Paragraph 6 (a) of the order dated the 1 August 2014 shall be varied in so far as it relates to Thursday’s only. There shall be no Thursday access in the weeks preceding the overnight staying access – i.e. – no access on Thursday’s 18 February, 3 March etc. The child shall be picked up and dropped off from IFC Central, Hong Kong for the weekend access.

g) The mother shall have skype or some form of video access with LM when she is in the care of the father for overnight staying access. 

2) It is directed that there shall be a full updated report from Dr B to deal with all matters pertaining to LM’s care including the issue of overnight staying access/shared care. The report to be filed 7 days prior to the next Children’s Appointment hearing. The cost of such to be split equally between the parties.

3) Both parties to file and serve a psychiatrist/psychologist’s report on themselves and their ability to parent LM, such report to be filed 7 days prior to the next Children’s Appointment hearing. The professional concerned should be served with a copy of all pleadings, orders, judgments and reports filed to date.

4) There shall be a further Children’s Appointment hearing on the 15 March 2016 at 9:30 a.m.

5) Liberty to apply.

6) Costs be reserved.