ULS v. ERJ

FCMC 16107 / 2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 16107 OF 2011

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J U D G M E N T
(Custody)

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Introduction

1. This is an application by a Petitioner father for sole custody and care and control of the youngest child of the family, a little boy, UL junior who is now 3 years of age. He also seeks final orders for the elder two children. He presently has interim custody of both. The Respondent mother for her part seeks sole custody and care and control of the youngest child. She also proposes defined and supervised access to the father. She does not contest a final order in favour of the father for the two eldest children of the family, but she would like access to them. Neither party seeks joint custody of the children.

2. This case concerns the practical arrangements for a small child where each party has made a number of serious allegations against the other. The father accuses the mother of child abuse whereas the mother says that the father is a habitual drug user. She also says he is an alcoholic. She accuses him of being very violent towards her on at least two occasions. There are also immigration issues with the mother maintaining that the father made the complaint of child abuse because she had decided not to sponsor his application for permanent Hong Kong residence following an incident of violence perpetuated by him against her. The father denies this and says that he did not need the wife’s support in any event.

The issues

3. The present issues before the court are:

In view of the allegations made should custody vest in the sole name of the mother, or in the sole name of the father or should some alternative order be put in place for the youngest child of the family?

What orders should be made for the two elder children of the family?

What access arrangements should be put in place for all three children once the issue of custody has been determined?

Background

4. The parties, who are both from the Philippines, married in April 2006. It was the second marriage for both of them. The Father has two children by his first marriage that are now over the age of 18 years and self supporting. The father lives with one of his elder son’s in a small unit in Jordan. Both he and his son are chefs and he presently works shifts with a period of rest in the afternoons. The mother also has a son by her first marriage who is nearly 15 years of age. He resides with her and the UL, the youngest child of the family, who is the major focus of this judgment. The mother used to work as a waitress but since the birth of UL she has relied on CSSA. She and the son by her first marriage together with UL live in a public housing unit that is meant for one person. She accepts that she will need to find alternative accommodation in due course.  

5. As indicated above there are two elder children who are also children of the family – a girl who was born in December 2004 prior to the marriage and who is now 8 years of age and a little boy who is just 5. They both reside with their paternal Grandparents and extended family in the Philippines. According to the International Social Welfare Report they are well taken care of. The father has interim custody of both children on that basis. The mother has not seen them for a considerable period of time. It seems that the extended family believe that the mother abused the elder daughter.

6. The father claims custody of the youngest child because he wishes all three children to be brought up together. Initially he said that he wanted to take the youngest child back to the Philippines. However during the trial he also said that he was contemplating bringing the elder two children back to Hong Kong. It is not clear how he intends to care for those children properly if he were to do so given his present work commitments and his crowded living conditions save that he told the second social welfare officer that he would employ his sister as a domestic helper to assist in child care.

7. As stated above the father also claims that the mother was found guilty of physically abusing the eldest daughter and on that basis he argues that she should not be allowed to care for UL. As will be seen the father’s claims in this respect did not fully come up to proof.

The law in Hong Kong

Custody, Care and control, access and shared care

8. The law governing applications concerning children in Hong Kong can mainly be found in the Matrimonial Proceedings and Property Ordinance, Cap 192 and the Guardianship of Minors Ordinance, Cap 13.

Section 19 Matrimonial Proceedings and Property Ordinance, Cap. 192 states that

(1)  The court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18-

(Amended 69 of 1997 s. 28)

(a)   in any proceedings for divorce, nullity of marriage or judicial separation, before, by or after the final decree;

9. The general principles governing such applications are set out in s.3 of the Guardianship of Minors Ordinance, Cap. 13, which says that:

GENERAL PRINCIPLES

(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 (whether or not a court as defined in section 2) 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;

For the avoidance of doubt s. 48 C Matrimonial Causes Ordinance, Cap. 179 adds that

…… section 3 of the Guardianship of Minors Ordinance (Cap 13) (which provides that the welfare of the minor shall be the first and paramount consideration) shall apply in relation to any order for the custody care or supervision of a child which may be made under this Ordinance or the Matrimonial Proceedings and Property Ordinance (Cap 192).

Discussion

10. I must now turn to consider the issues, the law and the parties evidence as set out in the parties affidavits and as given orally by them during the hearing.  For the avoidance of doubt, in so far as the matters set out in this judgment differ from the evidence of the father or mother, that is because I have preferred the evidence of the other party or because I do not find the evidence given credible, or because I consider that the documents produced confirmed my findings of fact.  In addition I have had the opportunity to observe the demeanor of the parties while they gave evidence in court.

11. I have heard evidence from the father and the mother and two social welfare officers.

In view of the allegations made should custody vest in the sole name of the mother, or in the sole name of the father or should some alternative order be put in place for the youngest child of the family?

12. The father maintained that the mother had been found guilty of child abuse and he produced copies of medical reports from the Queen Elizabeth Hospital in support of his case in that respect. The difficulty with this is that the medical reports were largely self serving in that they reported what the father had told the hospital, which was that the mother had hit the daughter. The daughter herself is also reported to have told the hospital authorities that her mother frequently beat her. The child was 5 years old at the time. According to a subsequent Progress Note dated the 29 October 2010 the father “refused to reveal exact event history” and the elder son from his first marriage said that he did not want to get involved.

13. The handwritten note of the 12 November 2010 from the hospital recording the Multi Disciplinary case Conference said as follows:

MDCC today (Multi Disciplinary Case Conference)

1.  Complicated social history

2.  History of both parents are different

3.  Father has the issue of “expire visa in Nov and need mother to extend visa

4.  Mother took good care of her 5-month old baby

5.  Issue of children’s custody present

6.  Both parties burst into tears during the investigation

7.  Battered spouse history in 2007. Father in prison for 10+ days and was released because wife (the mother dropped the charge)

8.  VRI for child

9.  Child attached to father and the 17 year old brother – usual care –taker and may travel back to the Philippines

Conclusion

1.  Probably no one is telling us the true story

2.  Focus of child abuse

     In view of bruises at different stages lesion compatible = finger nail pinch

     Established physical abuse case

     Mother is the highly suspected abuser from present history as no identifiable person so far

Welfare plan

CPSU follow up the case

Put on child abuse registry

Medically fit for discharge

Back to father’s home (1 floor below mother’s home and child care assistance from 17 year old child)

12 year old child and 5 month old child – (positive comments on both 12 year child’s school and comment good care of mother on child care) Continue monitoring child care of both children under mother’s care.

Home and discharged to patients father. No need for medical follow up.

14. The inpatient consultation form confirmed that there were old scars over the child’s face, neck and trunk.

15. The 1^st social welfare report also confirmed that the Multi Disciplinary Case Conference had stated that this was a child abuse case despite the mother’s denial.

16. According to the mother, the father had fabricated the whole thing because he had wanted to get back at her for refusing to sponsor him. She said that although she had been charged with child abuse that the father and the father’s elder son did not turn up at court and she was immediately acquitted following her plea of not guilty. However she also said that she was not present at the MDCC – which appears to be untrue from the note on the file.

17. Given these inconsistencies I asked for a police report from both parties. Legal Aid Counsel followed this up and on the 4 September 2013 he wrote to the court and said as follows:

  Please be informed that we have recently received reply from the Commissioner of Police that (1) unless the court ordered for disclosure of the parties’ previous criminal records, they would not disclose any information of the parties to us despite they have duty signed and sent their written consent for the disclosure or (2) alternatively the parties could apply for their past criminal records personally at the police station and the police will charge $50 each but so far we could not contact both parties.  All along it is very difficult for us to contact the Respondent.

18. Subsequently the mother filed an affidavit dated the 10 September 2013 confirming that she had been verbally informed by the Police that she did not have a criminal record. I accept what she says in this respect.

19. On the 5 September I received a further letter from the Legal Aid Department which stated that:

  We still could not contact the Petitioner (the husband) by the telephone and we did send him a letter on 3^rd September 2013 to inform the Petitioner asking him to obtain his past criminal records himself at the Police Headquarter.  Once it is available, we have reminded him to file and serve the said records at once.

20. To date nothing further has been received from the father notwithstanding my clear indication in court that clarification should be obtained from the Police.

21. The other difficulty I have is that the child was under the father’s primary care at the time of the alleged incident. He confirmed that he had brought the child back from the Philippines in the summer of 2010 and that he and the mother were living separately from each other at that time. The mother confirmed that the parties were living separately and had done so since November 2009. The child may not have known the mother well having spent the majority of her early years in the Philippines. It is not clear why she would have been in the mother’s care at the time of the alleged incident. The mother said that it was her belief that the child was abused by the girlfriend of the elder son who was living with the father. Certainly it does not seem that this possibility was investigated. In any event the child was returned to the father. She remained in Hong Kong for the remainder of the academic year and returned to the Philippines in the summer of 2011. She does not appear to have had any contact with the mother following the alleged incident.

22. Given all of the above, although I do of course accept the findings made by the Multi Disciplinary Case Conference at that time, I do not accept for present purposes that the possibility that the mother may have abused the daughter is sufficient reason for placing UL in the father’s care now, especially given the other factors that need to be taken into account.

Allegations of domestic violence, drug abuse and alcoholism 

23. The mother maintains that there were two serious incidences of violence. The first in June 2007 and the second in February 2010. In her affidavit dated the 15 February 2013 she says as follows:

I could recall 2 major incidents.  Firstly in June 2007 when we returned from Philippines with the eldest child, OP [the father] was so drunk at the time and he assaulted me after we disputed over trivial matters.  The Petitioner was convicted and put in jail in Lai Chi Kwok’s detention centre for 17 days.  Secondly, when I was 4 months pregnant of the youngest child on 25^th February 2010, after using drug by the Petitioner and after I refused to live with him again, he was out of control and intended to assault me with a long knife.  I defended myself by grapping his arm but at the end he hit me badly by his left fist.  I called the police for assistance and was treated at Chai Wan Pamela Yulde Hospital for treatment and was hospitalized for 1 day and then was discharged on 26 February 2010.

I accept that there were at least two incidences of domestic violence where the father injured the mother and that this was probably fuelled by alcohol and/or drugs.

24. The mother maintains that the father is a drug addict and that he snorts a “white powder”. She says that the father used UL’s urine in order to circumvent the court’s request for a drug test previously. Consequently the court directed that the father produce a further report. This time the petitioner was to provide a drug test from hair analysis. The Petitioner undertook to provide the drug test within 14 days i.e. on or before the 15 August 2013. To date no such test has been received. Again the Legal aid Department have followed this up. On the 4 September they wrote as follows:

  Please be informed that after the last hearing on 31^st July 2013 the [Petitioner] (OP) phoned me up that he did attend to Hong Kong Christian Service at 33 Granville Road, Tsimshatsui, Kowloon to do the drug test but OP said that such service is not available there and therefore I referred OP to do the drug test at Lok Heep Club on 12/F., Hennessy Road, Southern Centre, Wan Chai, Hong Kong (Tel: 2893 8060).  On 23^rd August 2013 Ms Yuen of Lok Heep Club rang me that OP’s hair was reduced to about 1 cm & they could not do the hair drug test forthwith.  They have to wait for about 1 month for OP’s hair to grow up to 2 to 3 cm and then they could do the hair dug test and they will send the report to the court direct with OP’s written consent.  They could do the urine test but the test is good for the last 7 days only but the hair drug test is good for the last few months.

25. For the avoidance of doubt it did not seem to me that the petitioner’s hair was quite so short when he was last in court. It seems that he is doing everything in his power to circumvent the court’s direction in this respect. The inevitable conclusion is that he has something to hide. All in all I accept that on the balance of probabilities that it is very likely that the Petitioner is a habitual drug user.   

The Father’s visa

26. The mother claims that the father fabricated the story about child abuse because she had decided not to sponsor him. She says that his visa was due to expire in November 2010 and that she informed him on the 28 October 2010 that she had decided not to sponsor his application for a permanent visa in Hong Kong. She says that he threatened her and on that very day made the report about child abuse to the authorities.

27. On examining the father’s passport and Hong Kong ID card it is clear that he does not have a permanent Hong Kong ID card and that presently he has permission to remain in Hong Kong until the 21 September 2014. Prior to that he had other visa’s giving him permission to remain until the 21 September 2012 and the 10 November 2010 respectively. But the father was evasive when cross examined about the basis for his visa. He is a chef so clearly he is not on a domestic helper’s visa. It was not clear from the documentation if he has a work visa. The letters that he produced from the Immigration Department did not cast any light on this issue. When asked by the Legal Aid counsel if he had been permitted to remain in Hong Kong because of the present proceedings he did not answer directly. He said that he had applied for permanent Hong Kong residency when even on his own case he had another three months to go before he was eligible to apply.

28. Given that I am inclined to believe the mother that the father was very angry when he found out that she had decided not to sponsor him. I certainly think that it is possible that he decided to fabricate the story about child abuse – although clearly the child had actually suffered some form of abuse at the hands of somebody and over an extended period of time. I don’t accept the father’s assertion that he did not need the mother’s support. It should also be noted that although the father issued divorce proceedings on the 17 November 2011 that he has not taken any other steps to progress the matter. He undertook to apply for directions for trial in relation to the same at the end of the hearing on the 1 August. To date he has not done so. The implication is that the father may have got an extension of his visa because of these current proceedings. This cannot be verified however. 

The Social Welfare Reports

29. Recommendations made to the court in social welfare reports although not binding are generally considered to be persuasive.

First report dated the 15 February 2012

30. In the first report dated the 15 February 2012 the Social Welfare Officer confirmed that the two elder children had been taken back to the Philippines shortly after their birth and had been mainly under the care of their paternal Grandparents whereas UL had been looked after by the mother in Hong Kong since his birth. The maternal Grandmother lives in Hong Kong and she together with other family members also assist the mother in helping to take care of UL and the mother’s eldest child as required. Given the circumstances the mother has been reluctant to let the father have a lot of contact with the son.

31. It is clear from the report that UL is closely bonded to his mother and that he has been well taken care of. Conversely he did not really know the father and initially at least was uneasy in his company.

32. In conclusion the Social Welfare Officer said:

30.   The present enquiry reveals that [UL] is all along taken care of by Madam E.  No evidence is founded the child is not under proper care of the mother whereas she has strong support from her maiden family.  In fact, the son in such young age, will be reasonably expected to have close attachment to the main carer. As a general rule, the continuity of care to remain the status quo is important to strengthen the sense of security for the child.  It is believed that UL will be under proper care of the mother provided that she continues to have stable financial support either from CSSA or gainful employment.

31.   On the other side, during the investigation, UL is observed to have strong rejection towards Mr U.  It is not surprising as the child has not met the father for a long time and the father is not his caretaker.  For him, the father likes a stranger.  In fact, Mr U understands this situation and does not blame the son.  He thinks he is the better one to take care of the son, however, no matter the custody of the youngest son is granted to which parent, it seems Mr U should make regular time to play with the son to foster more acceptance from him at this stage.

32.   The investigating officer agrees that a stable family environment is important to the growth and development of a child.  UL has a close intimate bonding with the mother.  For the sake of continuity of care, care and control of UL is granted to the mother as a better arrangement at this moment.  In the meantime, a constant access by the father is recommended with a view to establishing the father-child relationship.  Considering that the strong rejection of the parents towards each other, a joint custody is deemed not feasible at this case.  In order to eliminate the resistance of the mother to the access arrangement, a supervised access with the presence of a family member or reliable friend of the mother is highly recommended.

33. The Social Welfare officer recommended sole custody of the child to the mother with reasonable access to the father, such access to be supervised either by the mother or someone assigned by her.

34. When asked by the court, the 1^st Social Welfare Officer said that he did not think that there was any need for the arrangement to be supervised by the Social Welfare Department. I now fully accept that to be the case.

2^nd updated report dated the 9 July 2013 

35. This report reiterated the findings of the first report namely that UL was close to his mother and well cared for by her. In contrast he cried heavily when he saw the father and had to be coaxed to spend time with him, with the active encouragement of the mother. Eventually the father is reported as saying that he would let the judge decide the custody issue and he asked for access once a week.

36. In conclusion the second Social Welfare Officer said:

21.   It is believed that a stable carer was essential to UL to develop a sense of security and trust to others.  As UL has been cared by his mother since birth while their bonding is close, it is unfavourable to pick him away from the mother. In fact, the father, fully engaged by his work, needs to enlist other’s assistance in child care if he is granted UL’s care and control.  It is believed that the potential carer cannot replace the mother’s role in caring UL. Moreover, the father has just started to rebuild the relationship with UL, it is unrealistic to expect the father to develop close boning with and UL within a short period of the time.  The proposal for the companionship by the mother or an appropriate person authorized by the mother during access is considered beneficial to facilitate access process.  Taken into consideration the above, I would like to recommended that:

a.   Sole custody of the Child-in-question UL be granted to the Respondent Ms E, R J [mother];

b.  The Petitioner [father] can have weekly access to the Child-in-question;

c.   The Child-in-question is escorted by the Respondent or someone assigned by her to a place for handover and to be picked up from the same place as agreed by both parties;

d.  The access to be supervised by the Respondent or someone assigned by her;

e.   Other access to be arranged by agreement between the parties.

I agree with that recommendation.

The character of the parties

37. Neither party came across as being completely credible although the mother was certainly a lot more credible than the father. I would certainly have some concerns if the father was to take up the main care taking role of the two elder children. I accept that the father has a tendency towards violence and that he is also likely to have a drug and/or alcohol problem.

Conclusion 

38. Given the present circumstances it seems to me that the welfare of UL is best served at the present time by an order for sole custody in favour of the Respondent mother. I also accept the recommendations made by the social welfare officer as set out in paragraph 36 above with respect to access.

What orders should be made for the two elder children of the family?

39. The father asks for a final order for custody of the two eldest children of the family with reasonable access to the mother. The mother does not contest this. The International Social Investigation Report dated the 13 August 2012 confirms that the children are receiving very good care from their paternal grandparents and extended family in the Philippines. On that basis I will somewhat reluctantly make the order that the father seeks. 

What access arrangements should be put in place for all three children once the issue of custody has been determined?

40. Access is the right of the child. Consequently the father shall have access to UL as set out above and the mother shall have reasonable access to the two elder children. Attempts should be made to ensure that that does happen – although clearly the mother will need to take things slowly given the history of this particular case. The father will need to ensure that just as he has access to UL in difficult circumstances that the mother too has access to the two elder children.

Costs

41. There shall be no order as to costs. The mother’s own costs shall be taxed in accordance with legal aid regulations.

Orders

42. Consequently I will make an order as follows:

a) Sole custody and care and control of UL, a boy born in June 2010 shall be granted to the Respondent mother with weekly access to the Petitioner father, such access to be supervised by the Mother or someone assigned by her;

b) Other access by agreement between the parties;

c) Sole custody and care and control of the two elder children of the family namely UR, a girl born in December 2004 and EL, a boy born in April 2008 shall be granted to the Petitioner father with reasonable access to the Respondent mother;

d) Leave be given for the two elder children of the family referred to in paragraph c) above to remain outside of the jurisdiction of Hong Kong in the Philippines; 

 e) There shall be no order as to costs save that the Respondent’s own costs be taxed in accordance with Legal Aid Regulations.