CLP v. CSN (formerly known as HTY or HTYZ) AND ANOTHER

CACV 255/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 255 OF 2015

(ON APPEAL FROM FCMP No. 102 OF 2014)

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REASONS FOR JUDGMENT

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Hon Lam VP :

1.1. I respectfully agree with the reasons of Cheung JA. In view of the conflicting decisions in the Family Court and the perceived difficulty in making application under the wardship jurisdiction caused by M v Y [2009] 5 HKLRD 597, it is right that the appeal was brought.

1.2.  With respect, I do not regard M v Y, supra, as imposing an absolute prohibition against application for wardship when the immediate need of a child has already been catered for.  It may be a relevant factor but it should not be an absolute fetter on the overall discretion.  The crucial consideration is whether there is any real need for the Court to exercise the wardship jurisdiction in the interest of the child and it is a broad discretionary jurisdiction with the ability to develop in light of prevailing social conditions.  The flexibility of the common law can permit developments of the law which may not have been envisaged in earlier cases.  A good example can be found in terms of development of the protective jurisdiction over vulnerable adults as in Re SA (vulnerable adult with capacity: marriage) [2006] 1 FLR 867.

1.3.  I agree with Cheung JA, as he shall elaborate below, that we have no reason to disagree with the outcome in M v Y, supra.  However, the facts and circumstances of the present case are different.  For my part, I can see that there is a real need for that jurisdiction to be exercised in the present case and I can say I have done so in similar cases in the past in the Court of First Instance.  In that respect, I draw support from the fact that the judge below would have granted the application had she concluded she had jurisdiction under the GMO to do so.

1.4. I hope this judgment would provide useful guidance to the profession and those in similar predicament as the applicant.  Last but not least, I wish to commend those acting for the applicant on a pro bono basis in order to bring up these issues of general importance for the Court’s determination.  In so doing, they have done a service to the rule of law in Hong Kong. 

Hon Cheung JA :

I.  The issue

2.1.  This appeal is concerned with whether a grandmother of a child, a girl now aged nine (seven at the time of the application), can apply to be appointed as the guardian of the child under section 8D(2)(b) of the Guardianship of Minors Ordinance Cap. 13 (‘GMO’) when both of the child’s natural parents are alive but missing and are not prepared to perform their parental duties over the child.

2.2.  Deputy District Judge Yim held that she did not have the jurisdiction to make such an order.  She held that she would have readily granted the application if the jurisdiction existed.  The applicant appealed to this Court.  At the conclusion of the hearing we dismissed the appeal .  I now give my reasons.

II.  Background

3.1.  The 1^st respondent is the mother of the child (‘the mother’).  She is the daughter of the applicant.  The mother gave birth to the child in October 2007 at the age of 19.  She was not married at that time.  According to the applicant, the mother was rebellious and left home when she was 17.  She returned home to the applicant when she found herself pregnant with the child.  The mother disclosed that the father of the child is the 2^nd respondent but she had no intention of marrying him.  After the mother gave birth to the child she left home again leaving the child to the care of the applicant.  The mother had never contacted the applicant or the child since.  The father of the child had also disappeared from the scene.  Neither the mother nor the father had applied for the custody of the child.  

3.2.  The applicant has been the prime carer of the child since her birth and has assumed the role of a surrogate mother of the child.  She is a civil servant.  She is divorced from her husband.  The applicant is assisted by her elder sister in looking after the child when she is away for work. 

3.3.  Since the applicant is not the guardian of the child she experienced great daily difficulties in arranging for the education and obtaining travel documents for the child.  These difficulties prompted her to make the present application.  The application was served by way of substituted service on the mother and father of the child in the form of an advertisement in a local paper. 

III.  Concept of guardianship and custody

4.1.  Before I examine section 8D(2) to see whether it confers jurisdiction to allow a grandmother to apply to be the guardian of her granddaughter I will briefly refer to the concept of guardianship and custody.

4.2.  ‘Guardianship’ refers to the legal status under which a person exercises parental rights and authority towards a child.  When a parent dies, another person, known as a testamentary guardian, may be appointed by will to be a guardian for the child in place of the parent.  A guardian may also be appointed by the court.  The term ‘custody’ usually refers to the physical custody and day to day care and control of a child after a divorce.  In practice, this is usually granted to only one of the divorcing parents, while the other is granted ‘access’ to see the child on a regular basis : See the Law Reform Commission of Hong Kong Report Guardianship of Children January 2002 (the ‘LRC Report’) (Preface paragraph 2).

4.3.  At common law, the list of parental rights and authority includes :

1)  the right to live with the child and control the child’s day-to-day upbringing;

2)  the right to decide on the child’s education and religion;

3)  the right to inflict moderate punishment;

4)  the right to administer the child’s property;

5)  the right to act for the child in legal proceedings; and

6)  the right to consent to medical treatment.

4.4. The scope of parental rights and authority also includes certain statutory rights such as the right to consent to the child’s marriage or to the child’s adoption (see paragraphs 1.5 and 1.6 of the LRC Report).

IV.  Section 8D(2)

5.1.  GMO came into operation on 17 February 1977.  Section 8D(2) in the present form is the result of an amendment on 13 April 2012.  The original form was section 7 which provided that :

‘ Where a minor has no parent, no guardian of the person, and no other person having parental rights with respect to him, the court, on the application of any person, may, if it thinks fit, appoint the applicant to be the guardian of the minor.’

5.2.  Section 8D(2) now provides that :

‘ (2) On application by any person, the court may, if it thinks fit, appoint the person to be the guardian of a minor if—

(a) the parent or guardian who has a custody order over the minor dies; or

(b) the minor does not have any parent, guardian or other person having parental rights with respect to the minor.’

5.3. Counsel for the applicant, Ms Yanky Lam and Ms Terri Kwok together with their solicitors acted on a pro bono basis for the applicant.  They submitted that there were inconsistent decisions by the Family Court in similar situations like the present one and guidance from this Court is required.  These previous decisions, however, were not reported and did not contain reasons.  We did not have sight of these cases.

5.4.  Counselacceptedbeforeusthatwhetherthereisjurisdictiontoappointtheapplicantastheguardiandepends entirely on the construction of section 8D(2)(b) itself. Section 8D(2)(a) is concerned with the situation of the death of a parent or guardian who has a custody order over the child.  This is not the situation we are concerned with.  In the present case, the natural parents of the child are still alive.  In order to invoke section 8D(2)(b), the applicant must show that the three categories of persons mentioned in the subsection do not exist, namely, a parent, a guardian, or any person having parental rights over the child.  In the present case, the mother of the child, but not the father, is a parent having parental rights over the child.  This is because GMO draws a distinction between a married couple and unmarried couple on the issue of their parent rights.  In respect of married couples, both of them have parental rights over a child.  This is provided for by section 3(1)(b) of the GMO :

‘ 3(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-

…..

(b)  except where paragraph (c) applies, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other;’  (emphasis added)

5.5.  In respect of unmarried couple, while the mother has such rights, the father does not have such rights unless given by the Court.  This is because of the provision of section 3(1)(c) :

‘ 3(1)(c) where the minor is illegitimate-

(i)  a mother shall have the same rights and authority as she would have by virtue of paragraph (b) if the minor were legitimate;

(ii) a father shall only have such rights and authority, if any, as may have been ordered by a court on an application brought by the father under paragraph (d);’  (emphasis added)

5.6. The rights of the father of a child born outside the marriage are further restricted by the provision of section 21 of the GMO.  In the present case, since the mother is still alive and she has the parental rights over the child, the applicant simply cannot rely on section 8D(2)(b) to be appointed as the guardian by the Court.  The fact that section 3(1)(a) provides that the Court shall regard the best interests of the child as the first and paramount consideration in proceedings concerning the custody and upbringing of the child does not carry the matter further.  Likewise is the recognition of the rights of a child by Article 20 of the Hong Kong Bill of Rights and entrenched in our Basic Law.

5.7.  Reference had been made to various parts of the LRC Report and documents pertaining to the legislative history of section 8D(2).  They, in the main, do not assist because the discussion there was on the recommendation to introduce section 8D(2)(a) which was based on the Section 5(1) of the United Kingdom Children Act 1989 (original version).  It provided that :

‘ (1) Where an application with respect to a child is made to the court by any individual, the court may by order appoint that individual to be the child’s guardian if―

(a) the child has no parent with parental responsibility for him; or

(b) a residence order has been made with respect to the child in favour of a parent or guardian of his who has died while the order was in force.’

5.8.  Asmentionedearlier, therelevantsectionforthe purpose of the applicant’s application is section 8D(2)(b)whichwasalreadyinexistenceinasimilar form under the original section 7.

5.9.  The only other part of the LRC Report which, on the face of it, may assist the applicant is paragraph 1.37 which provided that :

‘ 1.37 Section 7 of the Ordinance allows any person to apply to be appointed as guardian of a child who has no parent, guardian or other person with parental rights. This would, for instance, permit the grandparents caring for a child born outside marriage to apply to be appointed as guardians in appropriate circumstances. Though the legislation does not specifically so provide, the court can appoint joint guardians.’

5.10.  However, ultimately the situation is one of statutory interpretation.  While the modern approach to statutory interpretation is based on a contextual interpretation, there really is nothing either in the context of the GMO itself or elsewhere for this Court to come to a view that there is jurisdiction to allow the applicant to be appointed the guardian when the mother who has parental rights over the child is still alive.

5.11.  Further, as pointed out by Ms Juliana Chan of the Official Solicitor, the legislative background documents to the amendment of section 8D(2) actually refuted the notion that section 8D(2) is to be extended to cases where the parents of the child are missing or not willing to perform their responsibility for the care and control of the child.  This can be seen from ‘The Administration’s Response to Issues Raised by Members at the Bills Committee Meeting held on 6 July 2011 and Supplementary information in relation to the guardianship arrangements for children under different situations’ (LC Paper No. CB(2) 2447/10-11 (03))

‘ Guardianship arrangement for children whose parents are still alive

13. There may be cases where guardianship arrangement is necessary for minors although their parents are still alive.  Examples include, among others, that the parents of the minors are missing, in jail or, for certain reasons, not able/willing to perform their responsibility for the care and control of the child.  The mechanisms for guardian appointment under the GMO are not applicable since guardians appointed under the GMO can only assume guardianship after one or both of the parents die ...

Guardianship arrangement for “Type II babies” whose parents are Mainland citizens residing in the Mainland

14. From time to time, there have been reports that some “Type II babies” in Hong Kong are not properly cared for by their parents who are residing in the Mainland.  The mechanisms for guardian appointment under the GMO are not applicable to their cases as their parents are still alive.’  (emphasis added)

V.  Re R (an infant) and M v H

6.1.  Counsel for the applicant relied on the statement of Arnold J in the English case of Re R (an infant) (Custody to non-parent) [1974] 1 All ER 1033 that :

‘ Now there has, in the past, been some measure of doubt whether the wide language of s 9(1) of the Guardianship of Minors Act 1971 really does embrace the possibility of an order for custody being made in favour of somebody who is neither a parent nor a guardian of an infant child or minor.’

6.2.  The case was about section 9 of the Guardianship of Minors Act 1971, the material terms provided that :

‘ The court may, on the application of the mother or father of a minor ... make such order regarding―(a) the custody of the minor; and (b) the right of access to the minor of his mother or father, as the court thinks fit having regard to the welfare of the minor and to the conduct and whishes of the mother and father.’

6.3.  In that case the father applied for custody of the child who was being looked after by her maternal great aunt.  Based on the facts of the case the Court granted custody to the great aunt and not the father.  One can see immediately the wording of section 9 is completely different.  The statement by Arnold J does not assist the applicant at all.

6.4.  In M v H [2006] 1 HKFLR 196 the applicant mother applied under section 10 of the GMO for the return of her two little boys aged 6 and 7 years respectively, whom she had left in the care of their paternal grandfather.  The mother lived in the Mainland.  The father had died in an industrial accident in Hong Kong and the two boys were entrusted to the care of the grandfather in Hong Kong.  H H Judge Bruno Chan referred to the statement of Arnold J and held that :

‘ 34. In our jurisdiction, as aforesaid where our s. 10(1) of the Guardianship of Minor Ordinance provides almost identical wordings as s. 9(l) of the English 1971 Act, I see no reason why our Court should not take a similarly wide view and make such order on custody and access in favour of non-parents such as grandparents under this section as the Court thinks fit having regard to the welfare of the minor, the general principles of which are of course set out in s. 3(1)(a) of the Ordinance.....’

6.5.  Judge Bruno Chan was referring to an application initiated by a qualified person under section 10, namely, the mother in that case, and the Court granting orders in favour of a third party such as a grandparent.  Again this case does not assist the applicant.

VI.  Other remedies

1)  Wardship

7.1.  But this does not mean that the applicant is without remedy.  The Court as the protector of the child has the power to make the child a ward of Court and confer the necessary rights of custody and care of the child on the applicant who has been looking after the child.  Counsel for the applicant submitted that the hurdle is the judgment by Hartmann JA in M v Y [2009] 5 HKLRD 597 where he declined to make a two-year old child a ward of Court on the application of her grandmother.  The girl lived with her grandmother in Hong Kong, while her parents lived and worked on the Mainland.  The girl’s parents had granted the grandmother a power of attorney.  Hartmann JA held that :

‘ 3. Wardship, to my understanding, is a discrete and ancient aspect of the inherent jurisdiction of the High Court. In the exercise of this jurisdiction, the court acts in a parental, administrative and inquisitorial manner. Its purpose is to protect the property and/or the person of the ward. Its duty is to act in a way that is best suited to serve the true interests of the ward and, if it is necessary, the court will exercise this supervisory jurisdiction over an extended period of time.

  4. In my view, it is evident, simply by reciting the nature and purpose of the court’s inherent jurisdiction, that it is a jurisdiction which will only be exercised when there is a real need for the court to protect the interests of a child.  There is admittedly no stated limit to the jurisdiction.  That is because each and every case is unique.  But there is an underlying common denominator, that is, the imminent or immediate need to afford protection for a child when that protection may not readily be derived from any other source.’

7.2.  I can readily understand why in the context of that case, Hartmann JA declined jurisdiction.  The child was being looked after by the grandmother pursuant to a consensual arrangement with her natural parents.  They chose to conduct the lifestyle of the child in such manner.  Any problem concerning immigration status of the child and her schooling was caused by their own decision.  It is difficult in such a situation to fit the granting of wardship in the traditional framework of such applications.  But the situation here is entirely different.  The applicant, short of abandoning the child, has no choice but to take her into her fold and look after her.  I am not persuaded that a wardship application in the present situation is a dead end route.

2)  Application by Director of Social Welfare

7.3.  In any event, the applicant may seek the assistance of the Director of Social Welfare (the ‘Director’), for the Director to apply for custody of the child to be granted to the applicant under section 10(1) of GMO :

‘ (1) The court may, on the application of either of the parents of a minor (who may apply without next friend) or the Director of Social Welfare, make such order regarding-

(a) the custody of the minor; and

(b) the right of access to the minor of either of his or her parents, as the court thinks fit having regard to the best interests of the minor and to the conduct and wishes of the parents.’  (emphasis added)

7.4.  Ultimately it is a matter for the applicant to decide as to which route she wishes to take concerning the future welfare of the child.

VII.  Looking towards the future

8.1.  The problem now facing the applicant may hopefully be changed in the future, if and when the draft Children Proceedings (Parental Responsibilities) Bill is eventually enacted by our Legislative Council.  The bill contains, among other things, the following provisions :

1)  the concept of ‘guardianship’ will be replaced by the concept of ‘parental responsibility’ to redefine the parent-child relationship in law.

2)  the existing custody and access orders will be replaced by a child arrangements order so as to move away from terminology that would imply a winner or a loser in disputes concerning a child.

8.2.  More importantly for the purpose of this appeal the limitation on the rights of third parties (such as grandparents) to apply for court orders in relation to the child will be removed.  The bill provides that a person with whom the child has lived for a period of at least 365 days may apply for a child arrangements order.  Even if a person does not fall within the category of persons who are entitled to apply for a child arrangements order, that person may still apply with the leave of the Court to do so.

VIII.  Conclusion

9.  In my view, the Judge was correct on the jurisdictional issue.  Accordingly, with regret, the appeal was dismissed.

Hon Kwan JA :

10.  I agree with the reasons for judgment of Cheung JA.  I also agree with the observations of the Vice President on the wardship jurisdiction.