CLL v. SW

FCMC 10564/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

SUIT NO. 10564 OF 2009

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BETWEEN

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JUDGMENT

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1.  This is a truly sad high conflict case of parental dispute over their 7 ½ year old daughter which had span almost half of her life, with numerous accusations of the worst kinds including sexual, physical and psychological abuses being thrown against each side not just between parents but also the grandparents, so bitter and hostile their relationship had become that at times one got the impression that in order to deny the other side of the child, both parents would rather that she continued to stay in the Po Leung Kuk where she had been held on and off for more than a year as a result of those abuse allegations and the consequential care and protection orders issued by the Juvenile Court, and so heart-rending from reading the many reports from the social welfare workers and clinical psychologists involved and their evidence before the court of how the child has been torn between her parents that she may have developed certain psychological symptoms that one can only hang his head in despair and rendered speechless.

2.  The Petitioner Mother of course claims that she had the sacred duty to protect her child by keeping her away from any risks, as she was the one who had made 3 reports of these alleged sexual and physical abuses to the police within the space of less than 9 months not just against the Respondent Father but also the paternal grandfather, and while none of these reports have been found by the resultant multi-disciplinary case conferences as abuse cases, nor has there been any police prosecution brought against either Father or grandfather, the Mother was nevertheless convinced that they did do so, and therefore took out the application now before me that the custody order made earlier on 16^th April 2009 under which she was granted joint custody of the daughter with care and control to the Father be varied in that sole custody care and control be given to her on the basis that those alleged abuses did occur, or alternatively that the daughter may suffer such risks or harms in the future if she were to remain under the care and control of her father.

3.  Equally determined was the Father in his justification to protect his daughter from the Mother’s “brainwashing” and “parental alienating” behaviours and other psychological abuses as he believes that all these abuse allegations were fabricated by her with the ulterior motive to gain certain advantage in their pending ancillary relief claims, so much so that he believes that she was prepared to put their child through all these ordeals that she cannot be said to be fit to have custody care and control of the child.       

4.  As a matter of fact, given the nature and gravity of the allegations being levelled against each other by the parties, which if proved as true are clearly diametrically opposite or contrary to the best interests of such a small child, that one may even conclude that the parent who is guilty of such behaviour may indeed be unfit to have any contact or access to that child, let alone her custody care or control.

5.  However, before considering the evidence of these allegations in depth, and there are as noted above unusually voluminous amount of materials such as social investigation and psychological reports and other documents before the court in view of the protracted disputes between the parties in these proceedings, it would be relevant, and in fact important to first set out the chronological and historical background of the marriage and the subsequent divorce proceedings in details.          

Background

6.  The Mother, now aged 38, was born in China but came to settle in Hong Kong at the age of 7 with her parents in 1981. Upon completing secondary school she attended nursing school in both Hong Kong and Australia before working as a registered nurse in the Tung Wah Group of Hospital in 1998. Unfortunately in the following year she had to undergo a major operation to remove a brain tumour, and while she has since fully recovered and returned to her job as before, she was for a time not required to work nightshift, and now only works on part-time basis.    

7.  The Father, now aged 40, was also born in China but came to Hong Kong much later in 1995 under the sponsorship of his aunt when his parents had remained in China at that time. He has since found job working as a computer analyst/programmer at the Hong Kong Polytechnic University up to the presence. His elder sister has also settled in Hong Kong with a daughter now in her teens.

8.  The parties became acquainted in the late 90s, and started to live together in 2001 after jointly purchasing a property in Sham Tseng, New Territories which was to later become their matrimonial home when they registered their marriage on 20^th January 2002.

9.  After marriage they continued to work to support the family including their home mortgage payments until the birth of their daughter, K, on 4^th November 2004, and when grandparents from both sides started to visit and stay to assist in child care, thereby sadly and unwittingly sewing the seeds for the many conflicts and disputes to come not just between the parties but also their respective families.     

10.  With numerous conflicts between the 2 families over various child care issues, by late 2007 the relationship between the parties had deteriorated to the extent that they agreed to live apart and to sell their matrimonial home before getting a divorce, but pending the sale they would take turn staying in the matrimonial home for 2 weeks each to look after their daughter with the assistance of their domestic helper.   

11.  On 11^th February 2008 when it was the Mother’s turn to stay with K, she accordingly returned to the former matrimonial home but found the daughter and the helper missing. When she realized that the Father had removed them to his sister’s home at Tokwawan, the Mother sought the assistance of the police for the return of K but to no avail. It was to be the first of many more police reports by the parties over the next 4 years.

12.  Notwithstanding the assistance of a social worker in the following 3 months when the parties were still unable to resolve their dispute over their daughter then only 3 ½ years of age, the Mother decided to file for divorce against the Father on 2^nd May 2008 under FCMC 4926 of 2008, followed soon after with an application for interim custody of K and appeared before Deputy Judge T. Chan on 2^nd June 2008.  

13.  By then both parties were legally represented and had filed their respective opposing affirmation. After hearing arguments from their lawyers the learned judge gave interim custody to the Father with generous visiting access on weekdays and staying access on weekends to the Mother before adjourning the hearing to October 2008 pending the social investigation report, which was likewise the first of many more to come. 

14.  That 1^st report, submitted by Ms W Leung on 24^th September 2008, supported the Mother’s application by suggesting that she be given care and control of K with joint custody to the parties. It was however not agreeable to the Father and hence the matter was fixed for trial for 4 days in April in the following year, while K was in the meantime to remain in the interim care of the Father, with visiting access on Tuesday and Thursday after school and staying access on weekends to the Mother as before, and that the social investigation report be updated 2 weeks before the trial.     

15.  Any hope that the parties would then be prepared to call a truce for the time being while waiting for the trial sadly went out of the window shortly thereafter, when according to the up-dated report dated 2^nd April 2009, both sides started to launch vicious allegations against each other for exerting psychological pressure on their daughter to influence her in the forthcoming trial, to the extent that K started to exhibit emotional problems and had to receive psychological counselling. The social worker Ms W Leung therefore suggested in her report that the case should be adjourned for 4 months for a psychological assessment of the emotional adjustment of K, the quality of the respective parent-child relationship, and the parental competence of the parents.

16.  Perhaps for that reason that on the 1^st day of the trial on 15^th April 2009 counsel for both parties started to negotiate for a settlement, and eventually on the following day the parties were able to reach a very comprehensive 12 - page agreement in which they were to be given joint custody of K, with her care and control to the Father and various defined access including staying access to the Mother, which was then made an order of the court on the same date of 16^th April 2009 (A : 1). It is this order that the Mother now seeks to vary in that the sole custody care and control of K be given to her.

17.  By then the parties had lived apart for more than one year, hence they also agreed to a divorce on that basis and therefore sought and obtained the court’s leave for the Mother to issue a fresh petition, which she subsequently did on 21^st August 2009 in these proceedings in place of the previous one, and on 28^th October 2009 the decree nisi of divorce was granted with the Father’s consent, with the remaining issue on the question of ancillary relief adjourned to a FDR hearing.

18.  While there remained various conflicts between the parties over some of the access arrangements, and while K had continued to require regular psychological counselling up to the end of 2010, it is clear that the parties had then shifted the focus of their disputes to their former matrimonial home, which they both agreed should be sold but not on how its sale proceeds should be divided due to their many other issues including whether certain payments allegedly made by them during the marriage should be taken into account in the division of the proceeds.  

19.  After an unsuccessful FDR hearing on 4^th June 2010 before the learned judge, the parties then came before me on 10^th September 2010 for a pre-trial review for the purpose of identifying the issues for the ancillary relief trial. By then both of them had chosen to act in person and confirmed their agreement to sell the former matrimonial home and to pay the proceeds into court pending trial. It was there when another issue between the parties became crystallized when the Father sought monthly contribution by way of child’s maintenance from the Mother to meet K’s living and education expenses but which she strenuously opposed.

20.  As a result directions were given for the parties to update their Form E and to file their narrative affirmation to set out their respective case for ancillary relief, pending which the pre-trial review was adjourned to 10^th December 2010, with the trial eventually fixed for 3 days in April 2011. Sadly, their incessant quarrels over their daughter reared its ugly head again, and this time it was brought to a new level, and it would be helpful to set out below the relevant chronology events that follow thereafter :

Date	Events
07/09/2010	Father applied for directions for implementation of access arrangements with complaints against the Mother.
09/10/2010	Mother filed affirmation accusing Father of psychologically abusing K.
15/10/2010	Mother had staying access to the Child during which she allegedly learnt that K had been sexually abused by the Grandfather/Father while bathing her.
23/12/2010	Mother made 1st report of sexual abuse to police, and then left for China for Christmas with K and maternal grandparents.
26/12/2010	Mother returned to Hong Kong with K who was then admitted by police to hospital for examination. Both Mother and maternal grandmother gave a police statement.
26/12/2010	Police attended at Father’s home for the investigation when statements were also taken from him, paternal grandparents and the domestic helper.
28/12/2010	Police video-recorded interview (VRI) was taken of K by a clinical psychologist in respect of the alleged sex abuse.
31/12/2010	K was discharged from hospital and was committed into Po Leung Kuk (PLK) for 2 weeks by the Juvenile Court under a care and protection order obtained by Director of Social Welfare, during which the Mother and her parents were allowed supervised access to K but not the Father or grandfather.
14/01/2011	Juvenile Court extended the care and protection order for K to remain in PLK for a further 2 weeks.
19/01/2011	Multi-Disciplinary Case Conference (MDCC) was held and found that the alleged sexual abuse not established, but recommended that K should remain in PLK for the time being to be kept away from her parents’ conflicts.
01/02/2011	Juvenile Court extended the care and protection order for K to remain in PLK under the supervision of the Director of Social Welfare until 31/05/2011.
21/02/2011	Mother filed her application for variation of custody of K with supportive affirmation with the same sexual abuse allegation.
15/03/2011	Ancillary Relief PTR was adjourned pending the determination of Mother’s application and a social investigation report on the alleged abuses and variation of custody.
18/04/2011	Police formally terminated their investigation against the Father and Grandfather.
19/04/2011	Father for the first time visited K at PLK.
21/04/2011	Mother made her 2nd abuse report to the police that K had been hit by the Father and/or Grandfather in the past to cause hearing loss to her left ear.
28/04/2011	Police VRI was taken of K in respect of the alleged physical abuse.
24/05/2011	Psychological Report submitted by Ms NL Lam to Juvenile Court found K in distress due to her parents’ conflicts with recommendation for her to receive psychological treatments. On the same date MDCC found that the alleged physical abuse had not been established, and the police then terminated their investigation against the Father and grandfather.
27/05/2011	Juvenile Court extended the care and protection order for K to remain in PLK until 14 /06/2011 for the parties to sort out her future arrangement.
14/06/2011	Social Welfare Report by Ms HY Lam recommended that interim care and control of K be granted to Father with weekly access to the Mother and supervision order for 6 months. The Juvenile Court then discharged the care and protection order and released K back into the care of the Father.
01/08/2011	Mother started to have staying access to K for 3 weeks during her summer holiday.
16/08/2011	Mother made her 3rd abuse report to police alleging that Father and Grandfather had sexually abused K again since her release from PLK.
19/08/2011	K made another VRI by the police, and was then admitted to hospital for examination.
23/08/2011	Juvenile Court made another care and protection order committing K into the care of PLK again pending police investigation of the alleged abuse and a social welfare report.
30/08/2011	Parties agreed to obtain a psychiatric report on their mental state and for a clinical psychologist to assess the reliability of K’s said allegations of sexual and physical abuse.
16/09/2011	MDCC found that it was not a sexual abuse case, but noted adverse psychological impacts on K for being caught between her parents’ conflicts, and suggested that it would be better for her to remain in PLK and to receive clinical psychological treatments pending the Mother’s variation application in the Family Court.
20/09/2011	Juvenile Court extended the care and protection order and that K was committed to the care of PLK under the supervision of Social Welfare Officer for I year with one weekly visit for 1 hour each by the parties in the presence of a social worker, and that K shall continue to receive psychological treatments.
17/10/2011	1st Clinical Psychological Report submitted by Ms WS Ng found K exhibiting dissociation symptoms as a result of her parents’ conflicts with trauma-related avoidance of her father, and recommended sole custody care and control to the Mother with reasonable access to the Father in the presence of a social worker.
18/04/2012	2nd Clinical Psychological Report submitted by Ms WS Ng of the view of higher than 50% chance that K had been abused, and maintained same recommendation of sole custody to the Mother with supervised access to the Father, and psychological treatments for all 3 of them.
19/04/2012	Social Investigation Report by Ms WS Wong revealed her inability to complete investigation of the Mother’s side due to her objection and hence recommended that K should for the time being remain in PLK.

21.  That was the last report submitted to this court before the trial of the Mother’s variation application, during which she was the only one from her side to give evidence, while the Father had apart from himself also called the paternal grandparents, his domestic helper, his landlord and clinical psychologist Dr Lynette Levy as his witnesses, plus the inevitable parade of Social Welfare Officers and Clinical Psychologists in particularly the court’s appointed psychologist Ms WS Ng, which made up a total of 13 days of evidence in court.

22.  It should also be noted that when the trial ran through K’s school summer break in July 2012, I allowed her to spend her summer with the Mother instead of remaining in PLK, with weekly supervised access to the Father at the Social Welfare Department, which has since been extended up to now pending the outcome. In other words, K has since summer been in the interim care of the Mother.

23.  Before embarking on examination of the evidence before the court, which was massive for a case involving child custody, it would be relevant to set out the applicable law, where there are serious disputes between the parties not so much as to the general principles of “best interests” of the child, but rather those on the standard of proof in particularly as to possible future risks of harms to K on the basis of the Mother’s alleged abuses.

Applicable Principles of Law

24.  The Mother’s case, as contained in her opening submission, and confirmed by Mr Ho on her behalf in the closing submission in which he stated in the first paragraph as follows :

“(1.1) Notwithstanding the findings of the MDCC that the three separate complaints by the Child K of sexual and physical abuses by her father, the Respondent and the Grandfather were not substantiated and the police decision not to prosecute for the said abuses, there are sufficient evidence on balance of probabilities that the Father and Grandfather had indeed committed acts of abuse against K;

(1.2) Alternatively, if there is no sufficient proof on balance of probabilities of sexual and physical abuses committed by the Father and/or the Grandfather, there is sufficient evidence for the court to come to the finding that there is a real possibility or real risk that K will be harmed in the future.” 

25.  While there is no issue over the core principle applicable on the exercise of the court’s power to decide on the Mother’s application for variation of the existing custody arrangement of K, that the court shall regard her best interests as the first and paramount consideration under s 3(1) of Guardianship of Minors Ordinance, Cap. 13 (GMO), as recently amended with the term “welfare” being replaced by “best interests”, it is as noted above rather the applicable principles on the proof of her case under her alternative ground that is at the heart of the legal issues between the parties.     

26.  It is on this alternative ground that Mr Ho submits the court should assess whether there is a real possibility of future risk based on facts found on a balance of probabilities, but not necessarily facts of abuse committed in the past, and if there is real possibility of such future risk, the court should exercise its discretion to make a custody arrangement for the protection of the child pursuant to s 3(1) of GMO, and he relies on Re H (A Minor); Re K (Minors) (Child Abuse : Evidence) [1989] 2 FLR 313.

27.  In that case, which was decided before the Children Act 1989 came into effect in UK in 1991, Butler-Sloss LJ, as she then was, said in the Court of Appeal at p 324F :

“ … Reliance has been placed upon the judgment of Purchas LJ in In re F, at p 128. He held that Hollis J had applied the correct test in a passage where Hollis J said :

‘If the risk of a child having been sexually abused while in his or her family environment is a real, reasonable or distinct possibility, action should be taken … I do not consider that a probability has to be shown but a real possibility. In that way, the interests of the child will be safeguarded.’

Noorse LJ at p 132 agreed and said :

‘A real possibility has to be contrasted with an unreal or fanciful possibility, and the latter is something on which the court does not act.’

In that decision, however, the test of real possibility was not adopted, nor was it adopted by Sheldon J in In re G [1987] 1 WLR 1461, nor has it been previously formulated as the standard of proof. I do not, however, read the Court of Appeal in In re F [1988] 2 FLR 123 as approving a standard less than the balance of probabilities, but looking rather to the exercise of the judge’s discretion.

There are in my view two stages in the decision making where a judge exercises his discretion in child cases. He evaluates the evidence adduced both as to facts already in existence and frequently expert opinion as to the future advantages and risks of possible decisions as to the child’s future.

At the second stage upon the evidence provided to the court the judge exercises his discretion with the test of the welfare of the child paramount and weighs in the balance all the relevant factors and assesses the relative weight of advantages and risks to a child of each of the possible courses of action. He may have found individual facts, such as inappropriate knowledge or behaviour, which constitute a high degree of concern about the child without being able to say on the test that they amount to actual abuse. They are, however, relevant to the exercise of the discretion. He may have sufficient evidence of concern about the past care of the child to be satisfied that the child was in a potentially abusing situation without having sufficient evidence to be satisfied as to the extent of the abuse in the past or the identity of the abuser. He has to assess the risks and, if there is a real possibility that the child will be at risk, he will take steps to safeguard the child. The assessment of the possibilities is crucial at this stage and he may decide as Sheldon J said in In re G [1987] 1 WLR 1461, that it is an “unacceptable risk.” But I respectfully agree with Noorse LJ in In re F [1988] 2 FLR 123, that “the court can only act on evidence.” Otherwise, the judge would be dispensing palm tree justice.

This assessment of possibilities is not unique to the family work and an analogy may be drawn from other civil litigation. In Davis v Taylor [1974] AC 207 the House of Lords in a fatal accident claim were evaluating the possibility of reconciliation between the deceased and the widow. According to Lord Reid, at p 212 :

‘To my mind the issue and the sole issue is whether that chance or probabilities was substantiated. If it was it must be evaluated. If it was a mere possibility it must be ignored. Many different words could be and have been used to indicate the dividing line. I can think of none better than ‘substantial,’ on the one hand, or ‘speculative’ on the other. It must be left to the good sense of the tribunal to decide on broad lines, without regard to legal niceties, but on a consideration of all the facts in proper perspective.’

Those words might usefully be adapted to the duties of a judge in the exercise of his discretion in child cases.”      

28.  Mr Yim however submits that a decision by a court on the likelihood of a future happening must be founded on a basis of present facts and the inferences fairly to be drawn therefrom, and if the alleged past sexual or physical abuses are not proved on balance of probabilities, there is simply no proven facts from which the court can find or even infer any future risk that the child will be harmed, as held by the House of Lords in Re H and R (Child Sexual Abuse : Standard of Proof) [1996] 1 FLR 80 which discussed the law on the standard and burden of proof required upon which the court could properly conclude there was a likelihood of harm or risk to three younger children when primary allegation of sexual abuse on an elder child was not proved.

29.  In that case the mother had 4 children, all girls, with the 2 elder from her former marriage, and the 2 younger from her cohabitation with a Mr R with whom they all resided together. In 1993, when the eldest girl was 15, she claimed to have been sexually abused by Mr R ever since she was 7 or 8 years old. She was then accommodated with foster-parents, and Mr R was as a result charged with rape. The local authority then applied for care orders in respect of the three younger girls. Interim care orders were made, followed by interim supervision.

30.  In October 1994 Mr R was tried for 4 counts of rape but was  acquitted on all counts. Despite this the local authority proceeded with applications for care orders under s 31 of Children Act 1989 for the 3 younger girls then aged 13, 8 and 2 years solely on the basis of the alleged abuse of the eldest girl by Mr R.

31.  Relying on the different standard of proof applicable in civil and criminal matters, the judge was asked to find that Mr R had sexually abused the eldest girl or at least that there was a substantial risk he had done so, thereby satisfying the conditions of s 31(2) of the Act for the making of a care order. The application was however dismissed when the judge could not be sure ‘to the requisite high standard of proof’ that the eldest girl’s allegations were true.

32.  The appeal by the local authority to the Court of Appeal was dismissed by a majority, which ruled that the judge had rightly dismissed the application after having concluded that those allegations had not been established to the requisite standard of proof on balance of probabilities, and that since he had rejected the only allegation which gave rise to the application, it was not open to him, on the evidence, to go on to a second stage to consider the likelihood of future harm to the children. The local authority appealed to the House of Lords.

33.  In dismissing the local authority’s appeal by a majority of 3 to 2, the House of Lords held that the standard of proof in cases involving the care of children was the ordinary civil standard of balance of probability, that the more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence would be established, but the rejection of a disputed allegation as not proved on the balance of probability left scope for the possibility that the non-proven allegation might be true after all, and while such unproved allegation could not form the basis for a finding by the court that either limb of s 31(2)(a) was established, it was open to a court to conclude, on proven facts before it, that there was a real possibility that a child would suffer harm in the future although such harm in the past had not been established.

34.  Lord Nicholls of Birkenhead, in giving judgment for the majority (with Lord Goff of Chieveley and Lord Mustill), stated the correct standard of proof to be applied in considering allegations of harms to a child, and if the primary allegation is not proved, how should the court proceed to consider future risk to the child, of which I find it most relevant to set out below in full his reasoning from p 95E :

“The burden of proof

The power of the court to make a care or supervision order only arises if the court is ‘satisfied’ that the criteria in s 31(2) exist. The expression ‘if the court is satisfied’, here and elsewhere in the Act, envisages that the court must be judicially satisfied on proper material. There is also inherent in the expression an indication of the need for the subject matter to be affirmatively proved. If the court is left in a state of indecision the matter has not been established to the level, or standard, needed for the court to be ‘satisfied’. Thus in s 31(2), in order for the threshold to be crossed, the conditions set out in paras (a) and (b) must be affirmatively established to the satisfaction of the court.

The legal burden of establishing the existence of these conditions rests on the applicant for a care order. The general principle is that he who asserts must prove. Generally, although there are exceptions, a plaintiff or applicant must establish the existence of all the preconditions and other facts entitling him to the order he seeks. There is nothing in the language or context of s 31(2) to suggest that the normal principle should not apply to the threshold conditions.

The standard of proof

Where the matters in issue are facts the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability. This is the established general principle. There are exceptions such as contempt of court applications, but I can see no reason for thinking that family proceedings are, or should be, an exception. By family proceedings I mean proceedings so described in the 1989 Act, ss 105 and 8(3). Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise very serious issues, but so do other forms of civil proceedings.

The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his under-age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a serious degree of flexibility in respect of the seriousness of the allegation.

Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J expressed this neatly in Re Dellow’s Will Trusts, Lloyd’s Bank v Institute of Cancer Research [1964] 1 WLR 451 at p 455 :

‘The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.’

This substantially accords with the approach adopted in authorities such as the well-known judgment of Morris LJ in Hornal v Neuberger Products Ltd [1957] 1 QB 247 at p 266. This approach also provides a means by which the balance of probability standard can accommodate one’s instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters.

No doubt it is this feeling which prompts judicial comment from time to time that grave issues call fro proof to a standard higher than the preponderance of probability. Similar suggestions have been made recently regarding proof of allegations of sexual abuse of children : see Re G (No 2) (A Minor) (Child Abuse : Evidence) [1988] 1 FLR 314 at p 321, and Re W (Minors) (Sexual Abuse : Standard of Proof) [1994] 1 FLR 419 at p 429. So I must pursue this a little further. The law looks for probability, not certainty. Certainty is seldom attainable. But probability is an unsatisfactorily vague criterion because there are degrees of probability. In establishing principles regarding the standard of proof, therefore, the law seeks to define the degree of probability appropriate for different types of proceedings. Proof beyond reasonable doubt, in whatever form of words expressed, is one standard. Proof on a preponderance of probability is another, a lower standard having the in-built flexibility already mentioned. If the balance of probability standard were departed from, and a third standard were substituted in some civil cases, it would be necessary to identity what the standard is and when it would apply. Herein lies a difficulty. If the standard were to be higher than the balance of probability but lower than the criminal standard of proof beyond reasonable doubt, what would it be? The only alternative which suggests itself is that the standard should be commensurate with the gravity of the allegation and the seriousness of the consequences. A formula to this effect has its attraction. But I doubt whether in practice it would add much to the present test in civil cases, and it would risk causing confusion and uncertainty. As at present advised I think it is better to stick to the existing, established law on this subject. I can see no compelling need for a change.

I therefore agree with the recent decisions of the Court of Appeal in several cases involving the care of children, to the effect that the standard of proof is the ordinary civil standard of balance of probability : See H v H (Minors) (Child Abuse : Evidence), K v K (Minors) (Child Abuse : Evidence) [1990] Fam 86 at pp 94 and 100, sub nom Re H (A Minor); Re K (Minors) (Child Abuse : Evidence) [1989] 2 FLR 313 at pp 311, Re M (A Minor) (Appeal) (No 2) [1994] 1 FLR 59 at p 67, and Re W (Minors) (Sexual Abuse : Standard of Proof) (above) at p 424, per Balcombe LJ. The Court of Appeal were of the same view in the present case…

The threshold conditions

There is no difficulty, in applying this standard to the threshold conditions. The first limb of s 31(2)(a) predicates an existing state of affairs : that the child is suffering significant harm. The relevant time for this purpose is the date of the care order application or, if temporary protective arrangements have been continuously in place from an earlier date, the date when those arrangements were initiated. This was decided by your Lordships’ House in Re M (A Minor) (Care Order : Threshold Condition) [1994] a AC 424, [1994] 2 FLR 577. Whether at that time the child was suffering significant harm is an issue to be decided by the court on the basis of the facts admitted or proved before it. The balance of probability standard applies to proof of the facts.

The same approach applies to the second limb of s 31(2)(a). This is concerned with evaluating the risk of something happening in the future : aye or no, is there a real possibility that the child will suffer significant harm? Having heard and considered the evidence and decided any disputed questions of relevant fact upon the balance of probability, the court must reach a decision on how highly it evaluates the risk of significant harm befalling the child, always remembering upon whom the burden of proof rests.

Suspicion and the threshold conditions

This brings me to the most difficult part of the appeal. The problem is presented in stark form by the facts in this case. The local authority do not suggest that the first limb of a s 31(2)(a) is satisfied in respect of D2, D3 or D4. They do not seek a finding that any of the three younger girls is suffering harm. Their case for the making of a care order is based exclusively on the second limb. In support of the allegation that D2, D3 and D4 are likely to suffer significant harm, the local authority rely solely upon the allegation that over many years D1 was subject to repeated sexual abuse by Mr R.

The judge held that the latter allegation was not made out. Mr R did not establish that abuse did not occur. The outcome on this disputed serious allegation of fact was that the local authority, upon whom the burden of proof rested, failed to establish that abuse did occur. However, the judge remained suspicious and, had it been relevant, he would have held there was a reasonable possibility that D1’s allegations were true. The question arising from these conclusions can be expressed thus : when a local authority assert but fail to prove past misconduct, can the judge’s suspicions or lingering doubts on that issue form the basis for concluding that the second limb of s 31(2)(a) has been established?

In many instances where misconduct is alleged but not proved this question will not arise. Other allegations may be proved. The matters proved may suffice a likelihood of future harm. However, the present case is not unique. Re P (A Minor) (Care : Evidence) [1994] 2 FLR 751 is another instance where the same problem arose. There the only matter relied upon was the death of the child’s baby brother while in the care of the parents. Douglas Brown J held that it was for the local authority to prove that the death was non-accidental and that, since they failed to do so, there was no factual basis for a finding of likelihood of harm to the surviving child.

In the Court of Appeal in the present case [1995] 1 FLR 643 the President adopted the same approach (at p 652). Since the judge rejected the only allegation which gave rise to the applications for care orders, it was not then open to him to go on and consider the likelihood of harm to the children. Millett LJ agreed. He said, at p 657 :

‘ … where the risk of harm depends on the truth of disputed allegations, the court must investigate them and determine whether they are true or false. Unless it finds that they are true, it cannot be satisfied that the child is likely to suffer significant harm if the order is not made.’

Kennedy LJ reached a different conclusion. To satisfy the second limb there must be acceptable evidence of a real risk that significant harm will be sustained, but he added, at p 654 :

‘I … do not accept that if the evidence relates to alleged misconduct … that misconduct must itself be proved on a balance of probabilities before the evidence can be used to satisfy the threshold criteria in s 31(2)(a).’

A conclusion based on facts

The starting-point here is that courts act on evidence. They reach their decisions on the basis of the evidence before them. When considering whether an applicant for a care order has shown that the child is suffering harm or is likely to do so, a court will have regard to the undisputed evidence. The judge will attach to the evidence such weight, or importance, as he considers appropriate. Likewise with regard to disputed evidence which the judge accepts as reliable. None of that is controversial. But the rejection of a disputed allegation as not proved on the balance of probability leaves scope for the possibility that the non-proven allegation may be true after all. There remains room for the judge to have doubts and suspicions on this score. This is the area of controversy.

In my view these unresolved judicial doubts and suspicions can no more form the basis of a conclusion that the second threshold condition in s 31(2)(a) has been established than they can form the basis of a conclusion that the first has been established. My reasons are as follows.

Evidence is the means whereby relevant facts are proved in court. What the evidence is required to establish depends upon the issue the court has to decide. At some interlocutory hearings, for instance, the issue will be whether the plaintiff has a good arguable case. The plaintiff may assert he is at risk of the defendant trespassing on his land or committing a breach of contract and that, in consequence, he will suffer serious damage. When deciding, whether to grant an interlocutory injunction the court will not be concerned to resolve disputes raised by the parties’ conflicting affidavit evidence.

At trials, however, the court normally has to resolve disputed issues of relevant fact before it can reach its conclusion on the issue it has to decide. This is a commonplace exercise, carried out daily by courts and tribunals throughout the country. This exercise applies as much where the issue is whether an event may happen in the future as where the issue is whether an event did or did not happen in the past. To decide whether a car was being driven negligently, the court will have to decide what was happening immediately before the accident and how the car was being driven and why. Its finding on these facts form the essential basis for its conclusion on the basis of whether the car was driven with reasonable care. Likewise, if the issue before the court concerns the possibility of something happening in the future, such as whether the name or get-up under which goods are being sold is likely to deceive future buyers. To decide that issue the court must identify and, when disputed, decide the relevant facts about the way the goods are being sold and to whom and in what circumstances. Then, but only then, can the court reach a conclusion on the crucial issue. A decision by a court on the likelihood of a future happening must be founded on a basis of present facts and the inferences fairly to be drawn therefrom.

The same, familiar approach is applicable when a court is considering whether the threshold conditions in s 31(2)(a) are established. Here, as much as anywhere else, the court’s conclusion must be founded on a factual base. The court must have before it facts on which its conclusion can properly be based. That is clearly so in the case of the first limb of s 31(2)(a). There must be facts, proved to the court’s satisfaction if disputed, on which the court can properly conclude that the child is suffering harm. An alleged but non-proven fact is not a fact for this purpose. Similarly with the second limb : there must be facts from which the court can properly conclude there is a real possibility that the child will suffer harm in the future. Here also, if the facts are disputed, the court must resolve the dispute so far as necessary to reach a proper conclusion on the issue it has to decide.”

35.  His Lordship then raised 2 particular points in his reasons which are in my view directly relevant to the legal issues now before me at p 100E :    

“The next pointer is that the second threshold condition in para (a) is check by jowl with the first. Take a case where a care order is sought in respect of a child on the ground that for some time his parents have been maltreating him. Having heard the evidence, the court finds the allegation is not proved. No maltreatment has been established. The evidence is rejected as insufficient. That being so, the first condition is not made out, because there is no factual basis from which the court could conclude that the child is suffering significant harm attributable to the care being given to him. Suspicion that there may have been maltreatment clearly will not do. It would be odd if, in respect of the self-same non-proven allegations, the self-same insufficient evidence could none the less be regarded as a sufficient factual basis for satisfying the court there is a real possibility of harm to the child in the future.

The third pointer is that if indeed this were the position, this would effectively reverse the burden of proof in an important respect. It would mean that once apparently credible evidence of misconduct has been given, those against whom the allegations are made must disprove them. Otherwise it would be open to a court to hold that, although the misconduct has not been proved, it has not been disproved and there is a real possibility that the misconduct did occur. Accordingly there is a real possibility that the child will suffer harm in the future and, hence, the threshold criteria are met. I do not believe Parliament intended that s 31(2) should work in this way.”

36.   His Lordship went on to emphasise a final point at p 101C :

“ … I have indicated that unproved allegations of maltreatment cannot form the basis for a finding by the court that either limb of s 31(2)(a) is established. It is, of course, open to a court to conclude there is a real possibility that the child will suffer harm in the future although harm in the past has not been established. There will be cases where, although the alleged maltreatment itself is not proved, the evidence does establish a combination of profoundly worrying features affecting the care of the child within the family. In such cases it would be open to a court in appropriate circumstances to find that, although not satisfied the child is yet suffering significant harm, on the basis of such facts as are proved there is a likelihood that he will do so in the future.”

37.  Mr Ho for the Mother argues that this is precisely her case here, as this dictum was cited in the subsequent Court of Appeal’s decision in Re M and R (Minors) (Expert Opinion : Evidence) [1996] 2 FLR 617 in which he relies on what Butler-Sloss LJ said at p 628 :

“In our view risk of harm means the real possibility of future harm … the passage sets out, in our view, the correct approach to the question how to assess any harm the child is at risk of suffering in s 1(3)(e) of the welfare test.”

38.  However, it would in my view be necessary to set out in full what Butler-Sloss LJ had actually said in her conclusion on that page :

“In conclusion we should emphasise, just as Lord Nicholls did in Re H and R (above), that what the evidence is required to establish depends upon the issue the court has to decide. Thus where (under Part V of the Act) a local authority are under a duty to investigate where they have ‘reasonable cause to suspect’ that a child is suffering or likely to suffer harm, the court has to be satisfied that the applicant does have such reasonable cause, not that the child is actually suffering or likely to suffer harm.

In the present case, however, the question is the latter, not the former; and for the reasons we have given, the court can only have regard to any harm that the child has suffered or is at risk of suffering if satisfied on the balance of probabilities that such harm or risk of harm in fact exists. In our view risk of harm means the real possibility of future harm …”     

39.  The passage which Butler-Sloss LJ referred to was the final point of Lord Nicholls made in Re H and R above, which she agreed to be the proper approach as to how to assess any harm the child is at risk of suffering in s 1(3)(e) of the welfare list.    

40.  It is in applying this approach to the present case that Mr Ho for the Mother argues that even if the court does not accept that the sexual abuse allegations in the past can be substantiated on a civil standard, those allegations would still leave a grave sense of discomfort to everyone who cares about the welfare of K, and that there is still a real possibility that the abuses did happen and would continue in the future, and hence the court should consider those facts and evidence before it in the broader context of welfare consideration of K under s 3(1) of GMO, bearing in mind that there is no hurdle or threshold to pass as prescribed under the Children Act 1989.

41.  Mr Ho further submits that in fact, the following observation in the dissecting judgment of Lord Lloyd in Re H and R supra, at p 89 is more relevant to the present case :

“A number of cases prior to 1991 (when the 1989 Act came into force) illustrate the old wardship approach. Thus in H v H (Minors) (Child Abuse : Evidence), K v K (Minors) (Child Abuse : Evidence) [1990] Fam 86, sub nom Re H (A Minor); Re K (Minors) (Child Abuse : Evidence) [1989] 2 FLR 313, a case concerning access, Butler-Sloss LJ said at p 101 and 325C respectively :

‘[The judge] may have found individual facts, such as inappropriate knowledge or behaviour, which constitute a high degree of concern about the child without being able to say on the test that they amount to actual abuse. They are, however, relevant to the exercise of the discretion. He may have sufficient evidence of concern about the past care of the child to be satisfied that the child was in potentially abusing situation without having sufficient evidence to be satisfied as to the extent of the abuse in the past or the identity of the abuser.’

Stuart-Smith LJ said p 121 and 344 respectively :

‘In the type of case with which we are concerned in these appeals there may be insufficient evidence upon which the judge can conclude that the father has sexually abused his children, nevertheless there may be sufficient evidence to show that there is a real chance, possibility or probability that he will do so in the future if granted access.’

In Re W (Minors) (Wardship : Evidence) [1990] 1 FLR 203, another wardship case, Butler-Sloss LJ said, at p 215 :

‘It is not necessary to make a finding of sexual abuse against a named person in order for the judge to access the risks to the child if returned to that environment. He is engaged in a different exercise, that of the assessment of the possibilities for the future.’

Neill LJ said, at p 228 :

‘There may also be cases, however, where the court may not be in a position to make a positive finding on the evidence as to what has happened in the past, but may, nevertheless, come to the conclusion that a child may be at risk for the future.’

Although these cases were decided in wardship, and not under the Children Act, they underline a general point. Evidence which is insufficient to establish the truth of an allegation to a required standard of proof, nevertheless remains evidence in the case. It needs not be disregarded. The point will be familiar to anyone who has taken part in a criminal trial. It is not uncommon for a defence counsel to tell the jury that unless they are sure that a particular witness is telling the truth, they must reject his evidence altogether. But this is quite wrong. The witness’s evidence remains evidence in the case. The jury is entitled to take it into account in deciding whether on all the evidence they are sure of the defendant’s guilt.”   

42.  While that may well be correct, there must however still be some proven facts for the court to decide whether the child would be at risk of future harm, and as pointed out by Mr Yim, the majority decision in Re H and R, together with Re M and R supra, are and remain the leading authority on how the courts today should approach allegations of child abuse in the context of both public and private children cases.

43.  It is within that context that Mr Ho further submits that Re H and R turned on the statutory interpretation of s 31(2) of the Children Act 1989 which is mainly confined to local authority’s applications for care order, or what are more commonly referred to public law children cases, which we do not have in our own legislation, and hence not necessarily the correct approach for private law cases such as the present case before me, where the general principles set out in s 3 of GMO apply, and where the welfare checklist in s 1(3) of the Children Act 1989, which has been routinely adopted by our courts and approved by the Court of Appeal in SMM v TWM, CACV 209/2009 unreported, and which includes “any harm which the child has suffered or is at risk of suffering.” 

44.  As a matter of fact, it was in M and R, supra, that the same argument was made that Re H and R was not applicable where the court was asked to consider “a risk of harm” under the said welfare checklist, but the argument was rejected by the Court of Appeal when Butler-Sloss LJ held at p 202G :

“In the case before us Mr Newton submitted that the House of Lords were concerned only with the threshold stage and that the majority view had no relevance to the welfare stage. So far as the latter stage was concerned, he submitted that since the judge in the present case was also clearly of the view that there was a real possibility that the children had been sexually abused, this was sufficient to establish that the children were at risk of suffering like harm in the future. Since a risk of harm is included in the welfare checklist set out in s 1(3) the judge was wrong to exclude it from consideration. Mr Newton submitted that the justification for approaching s 1 in a way rejected by the House of Lords for s 31 was that under s 1 the welfare of the child was the paramount consideration, which justified and indeed required the court to act on possibilities rather than proof on the preponderance of probability. These submission were supported by Mr McFarlane.

In our judgment these submissions cannot be supported. They amount to the assertion that under s 1 the welfare of the child dictates that the court should act on suspicion or doubts, rather than facts. To our minds the welfare of the child dictates the exact opposite.

Section 1(3) requires a court, when considering whether, among other things, to make an order under s 31, to have regard in particular to a number of matters. The subsection then sets out those matters in the welfare checklist. Item (e) of this list is : ‘any harm which [the child] has suffered or is at risk of suffering’.

If there is a dispute as to whether the child has suffered or is at risk of suffering harm the task of the judge, when considering whether to make any order whether it be a care or supervision order under s 31 or a s 8 order, must be to resolve that dispute. Unless this is done, it will remain in doubt whether or not the child has suffered harm or is at risk of suffering harm and thus it will remain in doubt whether or not there exist factors which Parliament expressly considered to be of particular importance to be taken into account. The question is how such a dispute is to be resolved.

To our minds there can be only one answer to this question, namely the same answer as that given by the majority in Re H and R (above). The court must reach a conclusion based on facts, not on suspicion or mere doubts. If, as in the present case, the court concludes that the evidence is insufficient to prove sexual abuse in the past, and if the fact of sexual abuse in the past is the only basis for asserting a risk of sexual abuse in the future, then it follows that there is nothing (except suspicion or mere doubts) to show a risk of future sexual abuse.

Mr Newton submitted that this is not so. His point was that if there is a real possibility of harm in the past, then it must follow (if nothing is done) that there is a risk of harm in the future. To our minds, however, this proposition contains a non sequitur. The fact that there might have been harm in the past does not establish the risk of harm in the future. The very highest it can be put is that what might possibly have happened in the past means that there may possibly be a risk of the same thing happening in the future. Section 1(3)(e), however, does not deal with what might possibly have happened or what future risk there may possibly be. It speaks in terms of what has happened or what is at risk of happening. Thus what the court must do (when the matter is in issue) is to decide whether the evidence establishes harm or the risk of harm.

We cannot see any justification for the suggestion that the standard of proof in performing the task should be less than the preponderance of probabilities. Were such a suggestion to be adopted, it would mean in effect that instead of acting on what was established as probably the case, the court would have to act on what was only possibly the case, or even on the basis of what was probably no0t the case. This, as Lord Nicholls pointed out in Re H and R (above), is the same as saying that the court should act on the basis of suspicion rather than on the basis of fact.

Such a proposition has to our minds only to be stated to be rejected. The same applies to the suggestion that the paramountcy of the welfare of the child requires such a method of proceeding, for this equally entails the proposition that the future of the child should be decided on the basis of suspicion rather than fact. We can find nothing in the Children Act which begins to suggest that Parliament intended that all-important decisions as to the future of a child should be made on such a basis which to our minds would be a recipe for making decisions which were not in the best interests of the child.

Mr Newton suggested that it is inappropriate in the context of s 1 and the welfare principle to apply the ordinary rule in civil proceedings that something which is established on the preponderance of probabilities should be treated as certain, while something which is not so established should be treated as not having happened at all. We disagree, for this really amounts to no more than saying that the court may get it wrong in deciding whether or not a fact exists. Courts do indeed on occasion get it wrong, but this is because of the fallibility of human institutions. Such fallibility cannot be cured by adopting the test Mr Newton propounds, for the scope for going wrong would be broadened, not narrowed, were the court to proceed not on the basis of proven facts, but on the basis of suspicion.”

45.  Butler-Sloss LJ also rejected the argument for different principle to be applied for public and private law cases when she said at p 205A :   

“Thirdly, the submission, if adopted, would be to create a fundamental difference between public and private law cases; for whereas the local authority would have to surmount the threshold stage by proving matters on a preponderance of probabilities, one parent seeking, for example, permanently to exclude the other parent from any relationship, such as contact, with the child, would only have to establish possibilities rather than probabilities. Again we can find nothing in the Act which suggests that Parliament intended this to be the position nor any good reason why it should have done so.”

46.  While it is true that we do not have the equivalence of Children Act 1989 in our legislation, when determining the ‘best interests’ of a minor under s 3 of GMO, invariably our courts have been guided by the welfare checklist in s 1(3) of the 1989 Act, which has been recommended by the Law Reform Commission, and recently endorsed by Poon J in H v N, HCMP 129 of 2011 on 9^th October 2011, unreported.

47.  In my view, what the Mother is asking the court to decide on the alternative ground of her present application is essentially the same as under item (e) of the welfare checklist : ‘Any harm (the minor) has suffered or is at risk of suffering’, which is also essentially the same as one of the criteria which the English Courts have to decide under s 31 (2) of the Children Act 1989 as in the case of Re H and R :

“A court may only make a care order or supervision order if it is satisfied –

that the child concerned is suffering, or is likely to suffer, significant harm; …”

Both situations in my view require the court to determine whether the child did suffer or is suffering harm, or is likely to suffer such harm in the future, in particularly when it comes to sexual abuse which tends to be repetitive and persistent rather than isolated or one-off.   

48.  It is therefore clear in my mind that in all cases invoking the principle of best interests of a child where sexual abuse allegations have been made, whether it is a public law case as in Re H and R, or a private law case as the present one, the same principles and approach as set out by the House of Lords in Re H and R shall apply. Any concern that its decision was only a majority one, as suggested by Mr Ho for the Mother can be safely laid to rest when the House of Lords in the more recent case of Re B (Children) (Sexual Abuse : Standard of Proof) [2008] 2 FLR 141, declined an invitation from counsel for the children’s guardian to depart from Re H and R, and Baroness Hale (with whom Lord Hoffmann, Lord Scott of Foscote, Lord Rodger of Earlsferry and Lord Walker of Gestingthorpe agreed) held at paragraph 54 :

“ … I would unhesitatingly decline that invitation. The reasons given by Lord Nicholls of Birkenhead for adopting the approach which he did in Re H and Others (Minors) remain thoroughly convincing. The threshold is there to protect both the children and their parents from unjustified intervention in their lives. It would provide no protection at all if it could be established on the basis of unsubstantiated suspicions : that is, where a judge cannot say that there is no real possibility that abuse took place, so concludes that there is a real possibility that it did. In other words, the alleged perpetrator would have to prove that it did not. Mr Cobb accepts that it must be proved on the balance of probabilities that a child ‘is suffering’ significant harm. But nevertheless he argues that those same allegations, which could not be proved for that purpose, could be the basis of a finding of likelihood of future harm. If that were so, there would have been no need for the first limb of s 31 (2)(a) at all. Parliament must be presumed to have inserted it for a purpose. Furthermore, the Act draws a clear distinction between the threshold to be crossed before the court may make a final care or supervision order and the threshold for making preliminary and interim orders. If Parliament had intended that a mere suspicion that a child had suffered harm could form the basis for making a final order, it would have used the same terminology of ‘reasonable grounds to suspect’ or ‘reasonable grounds to believe’ as it uses elsewhere in the Act. Instead, as Butler-Sloss LJ pointed out in Re M and R, it speaks of what the child is suffering or likely to suffer.”

49.  Accordingly, in the Mother’s application now before me and based solely on the alleged sexual and physical abuses and nothing else, the burden is on the Mother to prove on balance of probabilities that those abused sexual and physical abuses did occur, and given the gravity of the allegations, such evidence should be clear and cogent, and if I am not so satisfied that the alleged abuses did occur, then it is for her to show that there is a likelihood, on the basis of such facts as are proved, that K will suffer such risks in the future if she is to return to the custody care and control of her father. It is with these principles and guidance in mind that I shall now turn to consider the evidence of the Mother’s case, starting with the sexual abuse allegations.

Sexual Abuse Allegations

50.  The Mother’s sexual abuse allegations were first set out in her affirmation of 21^st February 2011 (B1 : 19 – 1)in which she claimed that on 15^th October 2010 her daughter told her and maternal grandmother that she had recently moved with her father and paternal grandfather to the Jubilant Place Flat, where she was sexually abused by either of them when bathing her and thereafter, and when the Mother was unable to get any assistance from social workers or school teachers, she reported the matter to the police on 23^rd December 2010. It was not clear at that time what exactly was the abuse as no specific details were given in that affirmation, admittedly made while she was still acting in person.

51.  It was a year later on 28^th February 2012 that she filed a further affirmation (B1 : 20), this time prepared by her present solicitors when she gave the following details of sexual abuse allegedly told to her by K during staying access at her home in October 2011 :

(a) that Paternal Grandfather had touched her breast, private part, back and buttock while bathing her;

(b) that after the bath Grandfather would carry her to her father’s bed to dry her, during which he would kiss her breast, stomach, private part, back, buttock, and anus;

(c) that when Grandfather was not in Hong Kong, it would be Father to give her bath during which he would abuse her the same way as grandfather;

(d) that she at first demonstrated how she was abused by pointing to those parts of her body that were touched and kissed by Grandfather or Father, and later on 22^nd December 2011 during another staying access when she gave further demonstration by means of a doll and a water basin of how she would be placed in the basin during the bath and how Grandfather or Father would touch and kiss those parts of her body by reference with the doll, and that when she was asked by the Mother how she felt when being touched in her private part, she said it would be painful when they poked their finger inside, which prompted the Mother to decide to make her first police report and launched her present application;

(e) that after K was released from PLK on 14^th June 2011 back to the Father’s care, and when she came to stay with the Mother during her summer holiday on 19^th August 2011, during which they went on a trip to Nanjing when K disclosed that Father and Grandfather had resumed abusing her again on the same night of her return from PLK not only in the same manner as before, but that they would also take off their pants to expose their penis to her and ask her to touch it while giving her a bath, hence the Mother reported the matter to the police again.                

52.  In her evidence given in court the Mother elaborated further of the occasion when she first learnt of possible sexual abuse on 15^th October 2010 while the maternal grandmother was bathing K when she revealed that she had recently moved to the newly rented Jubilant Place Flat with her father and paternal grandfather only, and in answer to grandmother’s query of who would then give her the bath every evening, K disclosed that it was the paternal grandfather, the grandmother became greatly alarmed and yelled for the Mother to come into the bathroom, and that was when K revealed more details of touching and kissing of her body by the paternal grandfather.

53.  The Mother explained that as she was at first not sure whether it was sexual abuse, she therefore discussed the matter only with K’s school teachers and social workers as well as Dr Iris Chau, the clinic psychologist whom she had consulted during her earlier custody dispute with the Father in 2009, but when the bathing and touching behaviour seemed to have persisted, she therefore decided to make sure about it by asking K to demonstrate with the doll and plastic basin when she realised the serious of the matter and decided to make her first sexual abuse report to the police on 23^rd December 2010.                    

54.  It is against this evidence of the Mother that Mr Yim for the Father in his submission has made a number of observations which he argues cast grave and serious doubt on the existence of alleged sexual abuses, and I can see why.

55.  Firstly, he argues that the Mother’s case is inherently improbable in the particular circumstances of the case, which is that the child had been sexually abused on a daily basis over an extended period of time by both her father and grandfather and in an almost identical manner and always on the same occasion, i.e. while giving her a bath and drying up afterwards, essentially 2 habitual sex offenders in the same household with the same modus operandi on the same victim, especially with the allegation that both of them had exposed their penis to K only upon her return from PLK but not before in exactly the same manner as if not only were they taking turn with the abuse but also synchronizing their abusive behaviour.   

56.  While this is not impossible in a family where both father and son, for example, are sex offenders, as in the UK case cited by Mr Ho for the Mother, but the probability for that to happen in the particular circumstances of this case must be very rare indeed, as according to Dr Levy, sexual desires and gratifications are very personal matters and very often different between 2 individuals, even though they may be as closely related as father and son.

57.  Furthermore, Mr Yim submits, it seems to be the Mother’s case that sexual abuse was able to take place because only the Father and Grandfather moved with K to the new Jubilant Place Flat without grandmother or the domestic helper, of which I am unable to think of any reason why they would not have moved together being members of the same household, when both of them have in fact come to court to give evidence that they did move as the entire family to the Jubilant Place Flat, and that it had always been the 2 female adults in the household to take care of K including bathing her by the helper sometime assisted by grandmother, and that it would be the helper who would sleep with K in her bedroom every night, making it virtually impossible for the alleged sexual abuse to take place un-noticed, let alone on a daily or regular basis.

58.  With such a household, I agree it would indeed be very strange if it were the 2 male members to bath K without rousing any suspicion from the grandmother or the helper, especially when the Mother did not take any real issue with the helper’s evidence that she was always the one to bath K before they moved to the Jubilant Place Flat, and that it would seem even more incredible that upon K’s release from PLK in June 2011, that Father and Grandfather would be allowed to bath her again after all the commotions caused by the 1^st allegation that grandmother and helper had to be incredibly reckless to the welfare of K, if not downright complicit to such behaviour, when there is absolutely no evidence that they were.      .  

59.  The same doubt can be raised, Mr Yim argues, over the allegation that Father and Grandfather had continued to abuse K during their trips to Guangzhou and Beijing in 2011 when both the grandmother and helper were present, when the latter was brought along just so to look after K along the trips, in particularly in Beijing when all 5 of them stayed in one hotel room, and that the evidence of both grandmother and helper confirmed that at no time was K ever alone with either the Father or the Grandfather. There was simply no opportunity, Mr Yim submits, for the alleged sexual abuse to take place during the entire trips.

60.  Similarly, Mr Yim submits, the Mother’s allegation that sexual abuse resumed on the first day when K was released from PLK into her father’s care on 14^th June 2011 cannot be right as according to the helper’s statement given to the police on 22^nd August 2011, the same day of the Mother’s 2^nd sexual abuse report, that K was in fact taken to her aunt’s (the Father’s elder sister) home where it was the helper who gave her a bath in that evening, hence it was not possible for her to be abused by either her father or grandfather on that night.

61.  Equally unrealistic, Mr Yim argues, is the Mother’s allegation that the Father or Grandfather would bath K in a plastic water basin which according to the photographs of Exhibit R-21 would be too small for a child of 6 or 7 years old like K but too big to be placed inside the bathtub, while it also appears physically difficult, if not impossible, for either of them to kiss K in her buttock and private part in that position if the basin is placed on the bathroom floor, given the fact that both are quite tall and at the grandfather’s age and his bad legs. Above all, at K’s age and given the setting of the bathroom as shown in R-21, it just does not make any sense to me that anyone would want to bath her in a plastic basin on the bathroom floor instead of simply using the shower in the bathtub.      

62.  However much I may agree with Mr Yim that all these circumstances in the Father’s household would certainly combine to make the alleged sexual abuse inherently unlikely, if not impossible, but K did in her 2 VRIs disclose details of sexual abuse, of which the court’s appointed clinical psychologist Ms Ng had seen and later became one of the main basis of her conclusion in her 2^nd report that there is a higher than 50% chance that K may indeed have been abused, which is essentially the corner stone of the Mother’s case.

63.  While the tapes of those VRI were never produced by the Mother at the trial, nor were their transcripts, but Ms Ng was not the only person who had seen them in arriving at her conclusion, as the professionals in the panels of the 2 MDCC had obviously also seen them, especially the clinical psychologists Ms Chan and Ms Lam who had respectively taken the VRI of K on those 2 occasions and hence had had the benefits of first hand observation of K during the interview rather than just watching the tapes as everybody else in the panels or Ms Ng in her subsequently reports.

64.  As noted above, the respective panel of the 2 MDCC, made up of professionals in the fields of social welfare, medicine, law enforcement, psychology, and education, having seen those tapes and other evidence had both come to a different conclusion from Ms Ng in that they were not sexual abuse cases, henceforth it would be essential to first consider the reasons and basis of their decisions, starting with the 1^st MDCC conducted on 19^th January 2011.

65.  That MDCC was attended by 14 members of the professions referred to above, and their decision given in paragraph 12.5 of the conference minutes (B2 : 334 – 1-7) as follows :

“After deliberations, except Mr Yiu, Ms Yeung and Ms Chan, all other members regarded that it was not a child sexual abuse case. The main considerations were the contradiction between the medical findings and K’s statement; and K’s inconsistent and contradictory allegations of the abuse incidents given on different occasions.”

66.  Of the 3 members mentioned above as the exception, it should be noted that according to paragraph 12.2 of the minutes, Mr Yiu of the police did not give his view so as to maintain a neutral role in the ongoing investigation, while Ms Yeung of PLK also did not give her view as she only knew about the case recently, hence only Ms Chan, the clinical psychologist who took the VRI from K regarded it as a suspicious case as she could not completely rule out the abuse incidents.        

67.  Ms Chan’s observations were reported in paragraph 7.1 as follows :

“ … K had clear description of the abuse incident. She revealed the incident in a calm manner. She described her feelings during the abuse as “痛” and “難受” . K said she was abused by either the paternal grandfather or the father each time they help her to take a bath. They abused her with almost the same steps.”

68.  An abstract of K’s statement taken in that VRI can be found in Ms Ng’s 2nd report (B2 : 235 – 236), in which she did appear to have given details of the alleged abuse as reported by the Mother, including her feeling of pain when her father or grandfather poked their finger inside her private part every time when they gave her a bath. However in paragraph 12.3 of the minutes, the medical member of the panel Dr Chang explained what he said to be contradiction between medical findings and K’s statement :

“ … if the suspected abusers had put the finger into K’s private parts and pained her each time she took a bath, there should be observable physical harm in her private parts, whereas it was not found in the current medical examination. In view of the contradiction between medical findings and K’s statement, he considered the case as not established.”

69. As forthe other inconsistencies and contradictions which the MDCC referred to in K’s statement, some can be found in the report by school teachers of her primary school in paragraph 10.1 of the minutes as follows (B2 : 334 – 4) :

“The Student Guidance Officer Ms IP briefed the members on the written report prepared by school. Ms IP supplemented that when the mother and maternal mother took K from school on 26.11.2010, the mother asked K to tell Ms IP whether the paternal grandfather and father had helped her to take bath and kissed her. Then K told Ms IP in a playful way that they did. When later interviewed individually by Ms IP on 29.11.2010, K told Ms IP that on 26.11.2010 she just said what “they” liked to listen. K also told Ms IP that it was the domestic helper who all long slept with her and helped her to take bath. The class teacher Ms TSE reported that K had disclosed to her that she fabricated the words “婆婆是巫婆;公公煮野唔好食” ; “ because the mother always asked her if the father spoke ill of her. So she told lies to meet their expectation. However, K denied her saying when she was accompanied by the mother to see Ms IP on 26.11.2010…”  

70.  This is what Mr Yim for the Father argues to be clear indication of K being coached by the Mother to make those allegations of abuse, and that many more such indications will emerge from the many reports before the court, with some in fact going back years when K was much younger, to show the kind of consistent pattern of the Mother’s ‘brainwashing’ behaviour.

71.  Whether that assertion is correct or not remains to be seen, but signs that K had been terribly torn between her parents’ conflicts can be found everywhere, for instance, in the report from her primary school to the MDCC in which it was stated that she had told her class mistress Ms Tse, music teacher Ms Ng and student counsellor Ms Yip of her unwillingness to go stay with her mother who would force her to say bad things about her father which were not true, thus causing her distressed (B2 : 329).

72.  In the PLK’s Social Enquiry Report (B2 : 332) where K’s views on the future plan was given on p334 as follows :

“1. The kuk’s social worker had tried to facilitate K to share her will on her welfare plan. K was sensitive on answering this kind of question. She always requested the social worker stop asking her such questions or replied that (我唔知呀). Once, she expressed to the kuk’s social worker that (我揀一邊，另一邊又會唔開心，我揀一另一邊，另一邊又會唔開心，所以就睇下邊邊無咁唔開心，就去另外個一邊).

K shared with the kuk’s social worker that she would like to say something to meet the family’ members’ expectation and she knew they like to listen. For instance, during the mother’s visit on 13.4.2011, when K heard the kuk’s worker told mother that kuk had arranged worker to escort K for the appointment on 19.4.2011, K was happy and loudly said that (我就話媽咪最有資格帶我去). Another incident was that, when the kuk’s worker asked father about the arrangement of the court hearing day on 29.4.2011 during father’s visit, K quickly replied that (如果有得揀，我一定會揀爸爸).

K expressed that she trusted her parents would not tell lies to her. However, she was confused who was telling lies about father and paternal grandfather were no need to be put in jail. According to K, the mother explained to her that (法官覺得佢可憐，所以唔使爸爸坐監), but father said the reason was (警察調查後，知道爸爸同爺爺都冇做過).”

73.  At the MDCC of 16^th September 2011 on the 2^nd sexual abuse report, which also included the said Mr Yiu and Ms Yeung, the 2 members who did not give their view in the 1^st MDCC, not only was the conclusion this time unanimously that it was not an abuse case, but it also contained some significant observations of K’s behaviour in paragraph 9 of the minutes (B2 : 345 – 3) as follows :

“After deliberation, all members unanimously views that it was not a child sexual abuse case after thorough consideration on K’s description on the incidents in VRI, the result of forensic examination and the information collected from various sources.

Members had not made any guess on why K would make such accusation against her father and paternal grandfather. Nonetheless, members observed that the responses and behaviours of K in front of different adults were different. It was believed that K was triangular into the parents’ disputes. She wanted to accommodate the wishes and demands of every family member and did not want to lose any of them. She tried to use her own method to reduce the stressful dilemma by showing responses or behaviours as desired by different adults especially her mother and maternal grandparents and suppressing her inner thoughts and feelings. Members also opined that besides the stress from split loyalty between the paternal and maternal families, involving in criminal investigation on suspected child abuse for three times within a few months also exerted great adverse psychological impacts on K.”      

74.  On this occasion the clinical psychologist Ms K Lam who took the VRI from K, an abstract of which has also been given in Ms Ng’s 2^nd report (B2 : 239 – 242), and hence had first hand direct observation of K during the interview, but unlike Ms Chan in the 1^st VRI, she was doubtful about the alleged abuse in the paragraph 4 of the minutes :

“Ms Lam briefed members on her observation in the video-recorded interview (VRI). Ms Lam highlighted her doubts on K’s description of the alleged incidents and the inconsistence in K’s emotional responses.”

75.  These inconsistent and conflicting behaviours of K were also observed by 2 different social welfare officers in their investigation reports submitted to this court. The 1^st officer Ms HY Lam in her report dated 14^th June 2011 (B2 : 213 - 1) revealed at paragraph 41 that K had disclosed that it was always the helper who would bath her and not her father or paternal grandfather :

“ 葉姑娘指出K到保良局後完全不再表達她的意願，只向葉姑娘說以前講過。K也提及12月27日到保良局的原因，K顯得緊張。K向葉姑娘說她所講的是「佢哋(母親及外祖父母)教我講」。在葉姑娘角度，K曾在母親及外祖父母陪同下說爸爸為她洗澡，但K也曾在單一與葉姑娘見面時表示她如此說只是為了母親及外祖父母希望聽到，其實一直為她洗澡的是家傭。K為達致外祖父母及母親的期望而說此話。”

76.  The same conflicting statement by K was also reported by Ms Woo in her Progress Report on Care and Protection Order dated 13^th June 2011 submitted to the Juvenile Court (B2 : 347 - 80) at paragraph 14 :

“When interviewed by the undersigned on 10th June 2011, K clearly presented her preference of home restoration … She further that she wanted to tell Your Worship about her preference of returning to the father’s home (返爸爸家比較好一些) as well as the fact that both the father and paternal grandfather had never helped her to take bath, slept with her or beaten her. At the same time, she expressed her worry over the mother’s response towards her choice and even requested the undersigned not to tell the mother about it.”

77.  As a matter of fact, there were also similar conflicting statements by K in the Mother’s physical abuse allegation which Mr Yim for the Father argues should be read and considered together with her sexual abuse allegations as a whole given the Father’s case that they were all fabricated by the Mother and fed or coached to K. This is of course all denied by the Mother, but it would be appropriate to now turn to consider the evidence on that allegation.       

Physical Abuse Allegation

78.  The Mother’s case of physical abuse is first set out in her affirmation of 28^th February 2012 in paragraph 17 where she stated that it was the maternal grandmother who first noticed of K’s hearing problem when she visited her at PLK on 31^st December 2010, which caused her to make further enquiries and eventually led to her suspicion of K being hit by her father and paternal grandfather in her head which caused the loss of hearing and her subsequent report to the police on 21^st April 2011(B1 : 27).

79.  However, in her statement given to the police on the same day of 21^st April 2011, and recorded in Ms Ng’s 2^nd report (B2 : 242), the Mother gave a different version by stating that it was K who first told her about hearing problem with her left ear in November 2010, and that after K had been placed in PLK as a result of the 1^st sexual abuse allegation, she told the social worker about it that eventually led to K being examined in the hospital and the hearing loss diagnosed on 19^th April 2011. It was on the following day, 20^th April 2011, she claimed, that when she telephoned K in PLK that K disclosed to her that up to 3 years old her hearing was fine, but thereafter on an occasion her father hit her on the head so hard that she could not hear with her left ear that the Mother decided to report the abuse. When she was cross-examined at the hearing about the different versions, she was unable to give any valid explanation.

80.  The statement given by K in the VRI to the police on 28^th April 2011 can be seen in Ms Ng’s 2^nd report of 18^th April 2012 (B2 : 222), and it would be relevant to note what she had actually said as recorded by Ms Ng in paragraph 17 as follows :

“ … K對當時和她作視像錄影的警員的提問態度迴避，K表示由她三歲起開始，耳朵已經聽不到。警員再向她提問，有什麼事情發生過，令她的耳朵聽不到，K答沒有。警員請K分別用手蓋著左耳及右耳，然後警員用相同的音亮和相同的語句說話，測試她分別單靠左耳或右耳能否聽到該語句。K配合警員的測試後，K表示左耳不能聽到他剛才的說話，只能靠手掌與耳朵中的虛位聽到有些聲音，但聽不到當中的內容。相反當手掌蓋著左邊耳朵時，她能清楚覆述剛才他所說的語句。警員再向她提問，有什麼事情發生過，令她的耳朵聽不到，K態度迴避並且答沒有，只說自幼稚園低班開始左耳便聽不到。警員再向她提問，能否記得有什麼事情在該時期發生過，令她的耳朵聽不到，K的態度迴避及顯得不耐煩，並且答沒有。該視像錄影於下午12時52分拍攝完畢。”

81.  The fact that K had a hearing problem is not controversial, as it is also the Father’s evidence that he had also noticed it and taken K to the doctor as early as October 2010, and as diagnosed by Dr Chu in his medical report dated 16th May 2011 (B1 : 98).

82.  As noted above it was not established as an abuse case by the resultant MDCC on 24^th May 2011, with its medical findings reported in paragraph 3.5 of the minutes as follow :

“Dr Cheung remarked that the cause of K’s hearing problem was unknown. Yet, the chance of being caused by beating was very low because no evidence of trauma such as ear drum scar was found during physical examination. There should be obvious sign of physical injury, at the time of injury, if K’s hearing problem was caused by beating” (B2 : 347).

83.  The conclusion, which was unanimous, was set out in paragraph 9 of the minutes as follow :

“Physical abuse by the father and paternal grandfather was not established. The main considerations were that during the VRI conducted by the police, K denied to have been hit by anyone; and according to medical advice, the chance of K’s hearing problem being caused by beating was very low as no trauma such as ear bone fracture or ear drum scar was found during the physical examination” (B2 : 347).

84.  Their expressed doubt that the hearing loss was caused by the Father hitting K was further reinforced by Ms HY Lam’s subsequent social investigation report of 14th June 2011 in which K was said to have denied that her hearing loss was inflicted by her father, nor had she been hit by him (B2 : 213 – 12). It would in fact be relevant to note the circumstances of how K made that disclosure in the report at paragraph 46 :        

“ … 楊姑娘指出，父親在性侵犯事件平息後，於2011年4月始探望K，K表現十分開心。楊姑娘形容K當時「彈下彈下」，表現雀躍愉快。是以往入住保良局以來少見的。楊姑娘表示K於4月26日(即自母親提出父親曾拍打女兒頭部而造成聽力受損)主動兩次問楊姑娘可否不告訴說話內容。楊姑娘查詢時，K表示「其實爸爸無做過」。當楊姑娘問K為何不向母親說出時，K說不出原因。”

85.  Given the conflicting evidence before the court, and having heard both the Father and Paternal Grandfather in evidence in court, I find that the Mother has fallen way short of proving her case that K had been physically abused by either of them. As with the sexual abuse allegation, the Father believes that K had been coached by the Mother to say so in her VRI, of which I shall now turn to consider. 

Allegation of Mother Coaching K

86.  As noted at the beginning of this judgment the Father’s case that all these allegations of sexual and physical abuses were fabricated by the Mother who then coached and taught K to lie about them in those VRI to the police, and in addition to those reports referred to above which he claims as clear indication or evidence of the Mother’s coaching, influencing and pressurising K to speak against her father and his family, Mr Yim argues that there are many more such instances as follow.

87.  In the report dated 17th January 2011 submitted by K’s primary school to the 1st MDCC, the following observation was made of K (B2 : 329) :

“3. 學生會主動向老師表達心事，曾向班主任謝玉玲老師、音樂科吳少娟主任及學生輔導主任葉碧芬姑娘表示不願到母家，怕母迫她說父的不是，因學生認為父沒有不是之處，故她要作一些父親的不是回答母，令她很困擾。”

88.  In HY Lam’s said report dated 14th June 2011 (B2 : 213 - 10), it was stated at paragraph 36 that :

“ …調查員於2011年6月2日以電話訪問了K的班主任謝老師，謝老師指出K在校可依指示學習，學習主動，亦會主動與老師傾談。在謝老師眼中，K樂意將自己的事情與老師傾訴。謝老師透露K在2010年10月後，不止一次向她透露不願提到媽媽處，原因是媽媽要K說父親有什麼不好的地方，如K答不出來則母親會不高興。當老師向母親瞭解時，母親說反而是父親強迫K背誦說母親及外祖父母的壞話。當老師再查詢時，K說是自己母親編出來的，她說因為母親要問她，若她答不出來，母親會趕她出門。K說正是母親要她說爸爸的壞話，她想不到於是便編出來。”

89.  In paragraph 41 of the same report, it was also stated :

“葉姑娘指出K到保良局後完全不再表達她的意願，只向葉姑娘說以前講過。K也提及12月27日到保良局的原因，K顯得緊張。K向葉姑娘說她所講的是「佢咃(母親及外祖父母) 教我講」。在葉姑娘角度，K曾在母親及外祖父母陪同下說爸爸替她洗澡，但K也曾在單一與葉姑娘見面時表示她如此說只為了母親及外祖父母希望聽到，其實一直為她洗澡的是家傭。K為達致外祖父母及母親的期望而說此話。”

90.  In the Social Welfare Officer’s Report on Care or Protection Case dated 20th September 2011 (B1 : 19 – 52) submitted to the Juvenile Court in respect of the 2nd sexual abuse complaint, the following observation was made of K :

“18.According to Ms YEUNG, the social worker of PLK, K said “ 如果依家唔見嫲嫲，爸爸唔會以後唔見我，如果依家唔見媽媽，媽媽以後都唔會見我 ” when Ms YEUNG discussed the visiting arrangement with K. As observed by Ms YEUNG, on 2.9.2011, when K just entered the interview room to meet her paternal grandmother, she asked her paternal grandmother, “ 如果媽咪問，咁點樣答 ”. As observed by Ms YEUNG, on 5.9.2011, K did not tell the truth to her mother who asked K the details of her paternal grandmother’s visit. Ms YEUNG told that K was once emotional when Madam C said, “ …你18歲之前我唔再見你.…” during the visit on 5.9.2011.”  

91.  In the Social Investigation Report dated 19th April 2012 (B2 : 214) submitted to this court, Social Welfare Officer Ms Wong recorded her following observations of one of the Mother’s visits of K at PLK on 11th April 2012 :

“17. 後來，莊女士問K最近有沒有說謊，K回應時聲音很低，調查主任聽不到內容，突然，莊女士帶K來到調查主任面前，問K有沒有見過調查主任，K說有，莊女士便立即問K有沒有對調查主任說謊，K可憐兮兮地用慌張的眼神望著調查主任，然後細聲說有，莊女士便立即問她說了什麼大話? K說「想返媽咪度」，莊女士立即叫她再說一遍，K便說「想返爸爸度」。莊女士便代K解釋她的意思是「想返媽咪屋企，唔想返爸爸屋企」。調查主任指出K早前並沒有對調查主任講過這些說話，但莊女士立即質問及指責調查主任講大話。事實上，當調查主任於4月3日探望K時，只有調查主任和K在埸，莊女士當日不在現場，根本無可能知道實際的情況，莊女士如此反應，實在令人費解。

18. 又隔了一段時間，莊女士又帶K到調查主任面前，K手上捧著一個小盆，盆內放有一個人形公仔及一小塊布，莊女士對K說，公仔代表自己(即K)，小布塊代表手，叫她做一次給調查主任看，調查主任立即制止，並表示如是有關父親及爺爺的行為，已經過警方調查及由多專業個案會議處理，K不用再次重覆事件。莊女士不接納調查主任的解釋，認為K「有權俾社工知」。最後，莊女士與K回到原先的位置。

19. 調查主任其後離開探視現場約45分鐘，在完結前約10分鐘才回到房間，繼續觀察。調查主任聽到莊女士及其父母不斷重覆對K說「我地想打救你，但其他人想推你番落去」，同時亦說「邊個係度都唔駛驚，有法官喺度」而K則小聲回應，調查主任聽不到她的回應內容，探視不久便結束。K拿了莊女士及其父母帶來的零食跟著曾姑娘離開，留下莊女士及其父母在收拾一切。

20. 在整個探視過程中，莊女士及其父母與K的相處大致上是自然及融洽的，不過，大部分時間由莊女士主導。每當莊女士向K發問一些引導性的問題時，K的聲音會突然變細，以致別人難以聽到。在莊女士及其父母與曾姑娘談論旅遊的經驗時，K多次喊婆婆及媽媽，似乎想表達意見，或是吸引大人的注意，但都要在她喊了許多聲之後才有人理睬她。當她兩次被莊女士帶到調查主任面前，叫她承認自己說謊和示範父親和爺爺如何幫她洗澡時，她表現得非常緊張，聲音變得好小好小，要吞兩次口水才能說出話來，讓人感到她當時很害怕，比起單獨與調查主任見面時的吱吱喳喳、活潑開朗，完全判若兩人。”

92.  Mr Yim further argues that in fact there had been a long history of the Mother planting in K’s head of various idea against the Father, as evidenced in the Social Investigation Report of Ms Leung dated 2nd April 2009 (B2 : 347 - 24) for the trial of the parties’ earlier custody dispute as follows :

“33. In the interview on 19.3.2009, K showed to be emotionally stable and spontaneous with the Investigating Officer. The Investigating Officer had given K two tasks during the interview, namely the “Animal Game” and the “Island Game”.

34. In the “Animal Game”, K was invited to imagine herself and her family members as an animal and to report which animal it would be for each of them and the reason. K associated herself with a rabbit which she described as funny and adorable. For her parents, K reported that the Father was a rabbit liked her or a mouse similar to her since she loved cheese while the Mother resembled the lion. K expressed that she was afraid of both the lion and the Mother. In the interview, K had also elaborated on the following points in relation to the Mother :

a. K was frightened of the Mother for driving her out (“趕我出去”). Yet, she was no longer frightened of such now as the paternal grandparents had told her not to be frightened. In addition, K revealed that it was actually the Mother who told lies and not the Father. In the reflection of K, it was the Mother who drove her out but not the Father. The Mother however said that the Father had driven her out. She so considered the Mother had told lies. K revealed that the Mother had driven her out of home once and the Mother had allowed her to go inside again after a short while when she followed the Mother’s request saying that the Father had told lies. Also, she reported that it was actually the maternal grandmother who said that the paternal grandmother was a witch but the maternal grandmother claimed that the paternal grandmother had said that maternal grandmother was a witch.

b. The Mother said that the Father would be caught by the police and that the Father, the paternal grandparents as well as the cousin would need to go to the hell (“要落地獄”). K expressed that she did not like to hear such negative words (“壞話”) about the Father and did not like the Mother saying these. K indicated that she was not happy with the Mother as the Mother spoke ill of the Father (“講爸爸壞話會”).

c. The Mother and the maternal grandparents told K that the custody of K would be granted to the Mother and not the Father (“判我比媽媽，唔會判比爸爸”). K seemed to consider the reason behind was that the Mother and the maternal grandparents wanted her to be .happy. She further revealed that the Mother and the maternal grandparents said that the father would frighten her. However, K considered that the Father would not frighten her (“我心裹覺得爸爸唔會嚇我”) and only the Mother and the maternal grandparents frightened her (“只係媽媽佢地嚇我”).

d. K told that the Mother and the maternal grandparents were lions and she was frightened that they would turn angry (“ 媽媽、婆婆、公公佢哋係獅子，驚佢地會發嬲”).

e. The Mother had told K that she would get to know whatever K did and said at the Father’s place. Besides, K indicated that the Mother wanted her to be naughty (“曳曳”) at the Father’s place. K cited one example of being naughty, namely was not to listen to the Father or believe in what he said, for the reason that the Father told lies. K conceived that the Mother would be happy if she (K) was naughty at the Father’s place and well-behaved at the Mother’s place. For the Father, K conceived that the Father was easygoing (“無所謂”) and he would be happy if she was well-behaved to be with the father or the Mother. She revealed that the Father would be angry with her if she was naughty liked refusing to have vaccination.

93.  Granted that at the time of that report, K was then residing with the Father and naturally may be more inclined to lean towards him or speak more positively about him and the paternal grandparents, it is clear to me that she was then already being torn between her parents’ conflicts, for which one needs only to turn to the table of allegations by the parents against each other attached at the end of Ms Leung’s report, and at the age of just over 4 then, K already found herself having to adept and handle these conflicts by dealing with her parents accordingly in different situations, as observed by Ms Leung in paragraph 59 of her conclusion that “She(K) had also tended to please and align with the Mother as observed during the home visit”, which if true no doubt so as not to cross her mother as she had told the officer on more than several occasions.

94.  The same observation was made 2 years later, when K was 6,  by clinical psychologist Ms NL Lam in her psychological report dated 24th May 2011 for the Juvenile Court after the Mother’s physical abuse report to the police, where it was stated towards the end of the report (B2 : 310) :

“ … Being a considerate child, K might tend to talk about things that agreed with the parent’s hypothesis towards another family, especially when she was keenly aware of the parents’ concerned and serious feelings. Besides, when the parents were concerned and serious, they might also look pressing. This might tend to let K to talk about things that followed the parents’ lines of thinking. Nonetheless, when K tried to tender one parent’s needs and feelings, another parent might feel upset. Sadly, even she had tried very hard, she failed to make both parents happy. In fact, all parties seemed to feel upset during this process.

K was currently in distress. She felt depressed and anxious when she needed to face the parental conflicts. She found it rather hard to resolve this complex situation with her own efforts. Fortunately, with the care and concern from all of her family members, she could still maintain normal functioning and stable mood in her daily living when she was not dealing with the parental conflicts. Yet, if she was kept triangulated in the parental conflicts, her psychological well-being might likely to further deteriorate.”

95.  However, according to Mr Yim for the Father, the most blatantly obvious evidence of the Mother’s influencing and coaching of K, and which were specifically directed towards the present conflicts between the parties, can be seen from the notes and drawings allegedly from the hands of K, the so-called dairy of her own thoughts and feelings while being kept in PLK and produced by the Mother as evidence (B1 : 169 – 212). It is the Father’s case that at her age K could not have been able to use some of the words or phrases in these notes as way beyond her intellectual or emotional ability to understand or to write them. Again I can see why.

96.  Take for example the one on B1 : 211, Mr Yim suggests, in which it was purportedly written by K that “ 我K誠諾以後不會再向媽媽公公和婆婆講大話，如果不是就永遠不能回到媽媽身邊，永遠留在衰爸爸的火海中” , with the emphasis on the last sentence, which Mr Yim submits as most unlikely that a child at the age of K would be able to use in that context, in particularly the words “火海” which were in fact the very same words used by the Mother in her 1st affirmation (B1 : 19 – 2) where she wrote “提出上述申請救女兒出火海” to explain why she made her present application. When under cross-examination at the trial, the Mother conceded that it was she who taught K to use those words in that note.

97.  Another telling example, according to Mr Yim, is the note on B1 : 210 where it bears the words “打我” , “洗澡”, “睡覺” and “錫我摸我”, which he submits again is difficult to imagine that a girl at the age of K would have written of her own volition, and raises a rhetorical question of why did the Mother ask K to write those words?

98.  Mr Yim also referred to another note on B1 : 166 which he submits as particularly telling of the Mother’s involvement. That note reads as follows :

“3月1日 – 3月十九號這段時間有六次在功課輔導堂的時候葉姑娘教我說返爸爸的家，他沒有幫我洗澡、爸爸沒有打，我環教我寫我很掛念表姐，這張卡是葉姑娘給我的。我寫這張卡的時候我很不開心。因為表姐根本我不喜歡她。因為她對我不好。因為她知道爸爸對我做了這些事，環不。說她也叫我說大話。我也不喜歡葉姑娘。因為她在輔導堂每次都教我說大話我也很害怕她。因為老師會駡我。

我張這些大話說給媽媽聽的時候我覺得心裏開心和舒服。雖然我沒有四歲我記得爸爸打我。姑姑和表姐都說我哭完才可回來。

4月十八日

K娃娃寫的

媽媽探的日子”.

99.  This note was apparently written during one of the Mother’s visits of K at PLK on 18th April 2012, and purported to explain that what K had earlier told the social worker Ms Ip were in fact taught by Ms Ip and not her own view, of which Mr Yim submits that it begs the obvious question of why would Ms Ip do something like that? And if not, why would K write down something that were clearly not true, unless it was the Mother who was behind it?

100.  Another clear example that the Mother was behind all these notes, Mr Yim submits, was when she in the course of the trial accused the Father and paternal grandparents of approaching K at her school and later on her school bus thereby in breach of a court’s order not to contact K outside PLK, and when it was denied by the Father, she produced the note purportedly written by K to court now marked Exhibit “R5 – 2” which reads as follows :

“奶奶和爺爺在學校門口上寶姆車、雲姨姨說他們是親戚，在車上叫我說給所有聽，有法官，林蔵心理學家我喜歡媽媽、公公、婆婆和說給所有姑娘聽... ”

101.  However, a subsequent letter dated 21st June 2012 from the Social Welfare Department marked Exhibit “R5 – 1” confirmed that upon investigation neither the Father nor the paternal grandparents had ever approached K during the period alleged by the Mother, which was also confirmed by the school bus helper, the “雲姨” mentioned in that note, in her evidence given in court for the Father, which again begs the obvious question of why would K write something which was clearly not true?

102.  This letter from the Social Welfare Department, Mr Yim argues, in fact also shed light on how these various notes purportedly written by K came into existence, as it stated in the 3rd paragraph :

“ … 呈請人在其探視時與當事兒童討論有關答辯人一方的情況，並要當事兒童將之寫成「心情日記」，實屬違反2011年10月20九龍城兒童法庭頒發的保護令(編號:KCJP220/2011)的(e)項特別規定。請提醒呈請人必須尊重並遵守法庭命令。”

103.  The most telling evidence against the Mother about her coaching of K in her case against the Father, Mr Yim submits, is the note dated 4th July 2012 and marked Exhibit “R – 23” disclosed by the Mother but not produced by her, and instead produced by the Father at the trial, which reads as follows :

“2012年7月4日星期 (三)

12月28日做錄影(12月26報警)之前

欣榮花園內有二間大房每間大房都有一張大牀並沒有碌架床。

在報警前李姑娘來欣榮花園探訪，他們(爸爸爺爺奶奶)要我和李姑娘說:「要說這裏有碌架床」我一定要按他們說其實這些是大話跟本就沒有碌架床。在第一次錄影時我也有說給陳姑娘聽的。爺爺和奶奶和李姑娘說要說你看到這裏碌架床，李姑娘就照他們的說話去做。

我就覺得很奇怪之前明明沒有碌架床為甚麼他們要說碌架床?六月十四日回到欣榮花園後，我就見到他們買了碌架床。

2011年8月19日第三次錄影林牀心理學家又由問我有沒有碌架床我就說有因為6月14日後就變了有。

K(娃娃)”

104.  Some explanation here would be necessary in order to understand the significance of the bunk bed referred in that note : It is part of the Mother’s case that K had told her that after giving her a bath during which she was abused, the Father would carry her to his bedroom and abuse her again on his double bed (“大床”). This was disputed by the Father whose case is that there was only one double bed in the paternal grandparents’ bedroom, while the only other bedroom did not have any double bed but instead a fixed bunk bed specifically built by the landlord and occupied by K and the domestic helper, while he himself would only sleep in a make-shift bed in the living room, hence he argues that K could not have told the Mother of the abuse ‘in his bedroom on a double bed’.

105.  It is not in dispute that in fact the parties did have one double bed in each of the 2 bedrooms in their former matrimonial home at Sham Tseng prior to their separation, and that as noted above when the Father moved out of that property, he did remove the furniture as well including the 2 double beds. Hence, Mr Yim argues, when the Mother subsequently learnt of his move to the Jubilant Place Flat, she must have thought that he had moved the 2 double beds there too, one in each bedroom as before, and so when she fabricated her case of sexual abuses against him, she detailed in the double bed in his bedroom as one of the places where the abuses took place, not aware of the Father’s case that he had left one of the double beds behind in his sister’s place before moving to the Jubilant Place Flat and hence there was no double bed in the other bedroom.

106.  Mr Yim therefore argues that when the Mother realised that the Father would dispute the existence of the double bed, she decided to get K to make up that false note for her use in court, but after the landlord had come to give evidence that he specifically built and installed the bunk bed in that bedroom for his own children when they were small, that it was specially fixed in its place that it cannot be removed without breaking it, and that it was one of the reasons why the Father agreed to rent his flat after deciding that bunk bed would be very much suitable for K’s use, the Mother decided not to produce that note, and hence when she was confronted with it during cross-examination, she was unable to give any satisfactory explanation as to how K under the circumstances would come to write something like that, of which Mr Yim submits that there can be no other explanation than the fact that it was dictated to her by the Mother.

107.  It should also be noted that during the trial the Father had produced a tape recording of the telephone conversation between him and K when she called him on 21st May 2011 from PLK and confirmed that it was during her earlier stay at her mother’s home in Tuen Mun that she was made to lie against her father and grandfather about the alleged abuses.

108.  It is therefore within the context of all these evidence and information, and against the factual background and circumstances of the Father’s household which Mr Yim has described earlier in this judgment as inherently improbable, together with the negative findings by all 3 MDCC, the long historical conflicts of the parties and the impacts on K as detailed in the many social investigation and psychological reports, all of which had been made available to the clinical psychologist Ms Ng and no doubt read and considered by her as evidenced by the list stated at the beginning of each of her reports, as well as the parties’ respective case against each other as set out in their respective affirmations, including the Father’s suspicion of the Mother’s fabricating these abuse allegations and her coaching of K, that I shall now come to consider Ms Ng’s assessments, which I have said to be the corner stone of the Mother’s case, and in particularly as to how and why Ms Ng arrived at her conclusion of a higher than 50% chance that K had been abused, sexually and/or physically.        

109.  To start off, it would be relevant to note that at the time of preparing her 2 reports, Ms Ng had worked at the Social Welfare Department for about 3 years, having done 7 child custody disputes, that this was her first case involving sexual abuse allegation, and that she admitted at the outset of her evidence in court that it was not part of her job duties to assess or evaluate the occurrence or risks of sexual abuse, which was not her specialty, but that she does give treatments to patients involved in such abuse. Above all, she also admitted that what the other clinical psychologist Ms K Lam did in the MDCC of the 2nd sexual abuse investigation was forensic evaluation, whereas she was doing a custody evaluation within the context of the abuse allegations in her 2 reports.     

110.  In her 1st report dated 17th October 2011 (B2 : 261), in addition to the documents that she had read and listed therein, Ms Ng also listed the persons whom she had contacted for the purpose of her assessment including social workers, teachers and of course face to face with the parents, grandparents from both sides and K. At the end of that report, Ms Ng concluded that the Mother should be given the sole custody care and control of K, with reasonable access to be given to the Father but must be supervised by social worker.

111.  According to her reasons and basis in reaching this conclusion, which were set out from paragraphs 27 to 35 (B2 : 280 – 283), Ms Ng appeared to have observed that K suffered from dissociation symptom and exhibited trauma-related avoidance to the Father, which she suspected was due to the alleged abuses, and given what she saw as K’s clear preference for the Mother, henceforth her conclusion on K’s custody and access.

112.  It is quite clear from both the report and her evidence in court that Ms Ng only did a custody evaluation at that stage rather than a forensic evaluation of the alleged abuses, of which I must emphasize is not a criticism of her given the parties’ failure to give a proper joint instruction to her for the report, but it does raise the important question as to how she would come to the conclusion that K’s dissociation symptom and trauma-related avoidance was related to the alleged abuses.

113.  As pointed out in her report by Dr Lynette Levy, the clinical psychologist called by the Father as his expert to comment on Ms Ng’s reports, in paragraph 5 (B2 : 380, 385) :

“Ms Ng noted that K suffers from “dissociation”. While this may be true, she demonstrates faulty logic in attributing the symptom to trauma that has occurred at the hands of the father.

Ms Ng utilized a number of assessment tools both in the original October 17, 2011 assessment and the current April 18, 2012 updated psychological report. She concluded that K suffers from a symptom called “dissociation.”  Dissociation is often associated with trauma and as Ms Ng describes in her report, it is s survival coping mechanism that helps people deal with inordinate amounts of stress. However, this stress is not always related to sexual or physical abuse. It can be any form of trauma, including natural disasters, crime, high conflict between family members, insecure attachment bond, and being in foster care for an extended period of time.

K has been in the care of Po Leung Kuk since December of 2010 with only a brief time at home with her father and then with her mother in the summer of 2011. A child of her young age requires a lot of attention and affection from the primary caregivers in her life. Such a lengthy stay in a government facility is likely to cause significant disruption to the parent/child bond and is severe enough to be classified as a trauma for the young child. Therefore, the undersigned concurs with Ms Ng that K suffers from effects related to a trauma, but what is unclear is how Ms Ng concluded that the trauma was related to abuse perpetrated by the father.

In fact, a Psychological Report dated May 24, 2011, prepared by Social Welfare Department Clinical Psychologist, Ms Lam Nga-lai, noted her perception that K’s “principle source of distress seemed to be related to the continual conflicts of her loved ones” rather than any ill treatment by her family members. Moreover, K has repeatedly exhibited signs of distress when discussing the subject of which parent she would choose to live with, and has stated that she does not wish for either of her parents to be unhappy.

Although abuse allegations have been deemed unfounded, it has been repeatedly recommended that K remain in Po Leung Kuk care for her own emotional safety given the conflict between her parents. Unfortunately, Po Leung Kuk has not consistently been the safe haven for K that was envisioned as her mother has repeatedly visited outside of visiting hours and caused significant disruption, each of which will undermine K’s sense of security. Even under supervision of a Social Welfare Officer, (Mother) has managed to place pressure on K to push her own agenda (such as noted in the most recent Social Welfare Report), and this is likely to be traumatic for K. She may dissociate in an attempt to cope, but there is no evidence to suggest that her dissociative symptoms are related to any form of physical or sexual abuse.”      

114.  In fact, Ms Ng did in her evidence given in court admit that it was possible that K’s dissociation symptom was the result of her parents’ non-stopped conflicts for years since when she was only 3 years of age, which makes it all the more puzzling why she would still attribute the trauma solely related to the Father.     

115.  It is true that Ms Ng did record in her report her observation of K’s body language during the interviews both when K was alone and when together with her father such as her twisting of the tissue or clinging closer to Ms Ng away from the Father, as detailed in B2 : 269 – 270 as one of the main basis of her conclusion, but again as pointed out by Dr Levy, such demeanour of K could be due to those other factors referred to above, and cannot be conclusive as either against the Father or in support of the alleged abuses, as she explained in her evidence in court :

“I think that there are too many factors involved to assign a reason why K would behave that way. She is in an unfamiliar environment, not her home environment, knowing why Miss Ng is there to observe and what is expected of her from her dad, what is expected of her from her mum. So I think it’s really an uncomfortable situation for the child and the way that she reacts could be for any number of reasons, other than the sexual abuse. If you want to factor in, research also shows that ,many children who are sexually abused by a parent also have a very good relationship with that parent. You can’t tell just by looking, right. So if that’s the case, then it would discount K’s shying away from the father. Therefore, it might be some other reason that she’s staying away, such as she may think it’s expected of her, because this is a woman who’s writing something down that Mum may eventually see or the judge may eventually see, but there’s too many factors involved, I think.”

116.  To be fair to Ms Ng, Dr Levy did agree with Mr Ho for the Mother that the avoidance exhibited by K against the Father could be a factor consistent with the allegation of sexual abuse, but her concern was that Ms Ng appeared to have focused mainly on that one factor without looking at all the other factors, which in my view just hits the nail squarely on the head, when all these other factors such as the long history of parental conflicts, the expressed fear of K towards her mother to various social workers and teachers, her coping method of saying and doing things that she thought would please her parents, the alleged coaching by the Mother, and the negative findings of the 3 MDCC all seem one big elephant in the room in Ms Ng’s conclusion.    

117.  Or, if she had indeed studied them, as they could all be easily found in the reports and documents listed at the beginning of each of her 2 reports, Ms Ng did not seem to have taken them into account or given them their proper weight in arriving at her conclusion, and if she had, she did not explain in her reports, as Dr Levy said in court : “ … she’s discounted a lot of the behaviours that don’t suit her hypothesis …”.

118.  In response to these criticisms Ms Ng insisted in court that she did consider all of the relevant factors before arriving at her conclusion, but when she was referred to reports such as those from Ms Woo or Ms Chu on K’s conflicting statements on the alleged sexual abuse, Ms Ng was unable to point to where in her report did she deal with them.

119.  Mr Yim for the Father further argues that with Ms Ng’s second report, which came some 6 months after her first, during which more evidence or instances of the Mother’s possible influencing and coaching K had been drawn to Ms Ng’s attention, yet it seems that not only had they all been just brushed aside or ignored as in her first report, there seems to be serious problems with her objectivity in her assessment between the Mother and the Father, if not a case of bias against the latter, a bold assertion indeed given the fact that Ng is the court’s appointed expert, but I can see why.   

120.  As she did in her 1st report, Ms Ng had again listed all the documents and reports, all 31 of them, which she said she had read for the purpose of her 2nd report. It also seems that she had revisited the 3 VRI of K’s statements in respect of the alleged abuses and given more details of her second viewing. She had of course interviewed the parents and K again, both with each alone and with K together with one of the parents for the purpose of observing their interaction. She had also held discussions with the 3 other clinical psychologists who had earlier submitted their own reports, all of which referred to above, as well as with one of the involved social welfare officers Ms Lau.       

121.  For her scheduled meeting with the Father together with K in her office at the Social Welfare Department, Ms Ng however reported that the Mother had appeared with the maternal grandmother objecting to her meeting with K outside PLK and then called the police. According to the Father it was such a terrifying scene for K that Ms Ng had to keep them in a room away from the commotion. Eventually Ms Ng had to call off that meeting and rescheduled it to another date. When she was asked in court by Mr Yim of her view about the Mother’s action on that occasion, as well as her many other behaviours mentioned in the many reports referred to above, and their possible impacts or influence on K in her parents’ conflicts, of which she did not seem to have made any reference in her report, Ms Ng just put them down as the Mother’s attempts to protect her daughter and hence acceptable to her.

122.  On the other hand, during her re-scheduled meeting with the Father and K after the Mother’s interruption above, when the Father tried to take some photos of K for the paternal grandparents which Ms Ng said she did not allow him to do so, she then devoted almost half a page in her report criticizing his action, and remarked in court that it was to her a serious flaw in his characters in his inability to control his desire, of which Mr Yim submits reflect badly on her objectivity as a court’s appointed expert.

123.  Dr Levy was in fact more concerned about the impact of the Mother’s interruption of that meeting on K which may have coloured Ms Ng’s observation of her interaction with her father when she explained in court :

“ … An evaluation of this nature, I think, is quite stressful for a child anyway, if the child understands that there is a conflict going on between the mother and the father, and the primary issue is where she will live in the future. So I think that we need to take additional care when we’re interviewing the child to make sure that the child feels safe in the environment and secure where she’s going to be saying things about both parties that will be taken under consideration. The fact that the interview was interrupted by the other party, I think, was very unexpected for K and probably quite frightening for her, particularly if there was any kind of conflict or argument that ensured afterwards, and I think that that would have tainted her interview and the answers that she gave in the long run.”

124.  In my view the way Ms Ng was critical of the Father in her report does not necessarily reflect any personal bias against him in the ordinary sense of that word, but rather because she was, I believe, by then already convinced, or at least of the view that he did probably abuse K, as she had implied in her 1st report, which is why she described his taking a photograph of K in her office as a sign of his inability to control his urge or desire, the same weakness that she believes may have led him to abuse his daughter.                

125.  It is of course Mr Yim’s submission that Ms Ng did not have the expertise or experience to carry out her risk-assessment of the alleged abuses, especially sexual abuse, of which she had readily conceded, and as a result failed to follow the proper steps and approaches as outlined in authoritative articles such as ‘Improving Decision Making in Forensic Child Sexual Abuse Evaluations’ by Herman (“R-2”) or ‘Complex Child Custody Evaluation : Evaluating the Alleged Incestuous Parent’ by Sachsenmaier (“R-1”), and hence it would be unsafe and unsatisfactory for this court to rely on Ms Ng’s assessments in her 2 reports.

126.  Again to be fair to Ms Ng, her appointment was agreed by the parties and in her expertise as a clinical psychologist to assess the reliability of K’s statements of sexual and physical abuse, and that was what she claims to have done in her 2 reports, and it would of course be relevant to consider her basis and reasons in reaching her conclusion to see whether those criticisms from Mr Yim are justified.

127.  As already noted above, they appear to be absent in her 1st report, but in her 2nd report Ms Ng did set them out in details from paragraphs 34 – 39 before arriving at her conclusion in paragraph 40 (B2 : 252 – 259), which can be summarised as follows :

(a)  that K had given so much details of the alleged abuses such as the dates, places, modes and methods that they could not be taught or coached for her age if they were not true;

(b)that K had no reason to lie against her father and grandfather with whom she had good relationship;

(c)  that the lack of medical evidence of sexual abuse held by the MDCC can be explained by the fact that statistically such evidence is only present in 4% of abuse cases and hence should not be good enough reason to find against sexual abuse in this case;

(d)that her observed dissociation symptoms of K were likely due to trauma-related avoidance against her father caused by the alleged abuses.     

128.  It is for these reasons and with K’s interests as the paramount consideration, Ms Ng arrived at the conclusion of a higher than 50% risk of abuse in paragraph 39 as follows :

“ … 由於刑事檢控的舉證尺度與處理虐兒個案和管養權評估從衡量各方可能性為評估基礎，並以兒童的利益為首要考慮的尺度不同。因此證據不足以提出刑事檢控，並不能因此取代衡量各方可能性的評估原則。歸納以上各種因素，以高於一半的可能性為事實的檢定尺度作假設檢定。有關性侵犯的指控的假設四：答辯人及其父親可能曾作出部份指控的行為，但該些行為已構成性侵犯及有關身體虐待的指控的假設九：答辯人可能並沒有作出該些指控的行為，但存在作出該些指控的行為的風險，被視為有高於一半的可能性為事實。”

129.  While each of these reasons may stand on its own merits and appear logical and persuasive, but when set against all those other relevant factors discussed in length above, and there are many, and when all of them have been properly and objectively taken into account, then I am unable to see how Ms Ng could make such an assessment or arrive at such a conclusion as she has in her 2nd report.         

130.  I shall start with the short point. While statistically Ms Ng may well be correct that in only 4% of abuse cases when there were medical evidence, it is the Mother’s case that K would complain of pain in her private part every time when she came to stay with her, and that would be every week, I can see why the 1st MDCC was doubtful of the Mother’s allegation as inconsistent with the medical evidence, and hence in my judgment Ms Ng should not have just brushed it off without offering any counter-argument.     

131.  Her argument that K would not have lied against her father and grandfather given their close relationship is equally inconsistent with the ample evidence from the many social welfare reports and psychological reports that K has long been emotionally affected and triangulated by her parents’ long conflicts by becoming suggestible and adopting her mother’s belief by saying those things against her father and grandfather without proper understanding the consequences, which led her to ask whether they would be put in prison.

132.  As for her opinion that a child at K’s age could not have been taught or coached to provide so much details and so consistently of the alleged abuses in 3 separate VRI statements, Ms Ng may very well be correct with most ordinary 6 or 7 years old child, but it should not surprise anyone under the circumstances of this case for a child like K to be able to do so, in particularly when on both occasions immediately before her VRI statement on the alleged sexual abuse, she did spend a consideration period of time staying with the Mother with ample opportunity for coaching to take place, and similarly during the weeks running up to her meeting with Ms Ng, there were evidence from PLK of the Mother and/or maternal grandparents’ almost daily attempts to pass messages to K, and that such activities suddenly stopped after the meeting, to suggest the real possibility of K being coached which Ms Ng should have properly taken into account.

133.  After all, given the level of her maturity and intelligence according to the various reports, all K appeared to be doing in those VRI was merely repeating a simple process : What her father and grandfather were supposed to be doing to her while giving her a bath and drying her afterwards, same thing every day whether at home or travelling, which cannot be as complicated or difficult as Ms Ng has made them out to be, especially with the kind of coaching that the Mother was said to have given K over the years according to the many reports and evidence before the court.

134.  On this issue it would also be useful to refer to Dr Levy’s evidence in court in which she said :

“ … there were indeed a lot of details, but if K actually believed that it happened by that point, I think that it’s very possible that she would, with conviction, tell you this happened. It doesn’t take very much to plant an idea in a child’s mind. Sometimes if they give an answer and you just say, ‘Are you sure?’, that will make most of thyem stop and think about whether we were sure or not, and for a child, that’s even more so. They looked at children who were 3 and 4 years old, and 5 and 6 years old … ”

135.  And she further said : “By ‘embellishment’, I don’t mean anything planting the information. I just mean that the child adds more details as she goes and it becomes part of the reality of what they’re … or the ‘reality’ of what they’re trying to remember.”

136.  Similarly, the way Ms Ng has read into what she had observed as K’s body language in both the VRI and her own interview as possibly connected with the alleged abuses is again too simplistic, as commented by Dr Levy that any 6 years old child would likely behave in the same way under such uncomfortable and in fact highly stressful circumstances in the presence of adult strangers, and that by failing to take into account of other possibilities that may lead K to exhibit such dissociation symptoms or trauma-related avoidance to her father, if indeed it was the case, such as her fear to cross her mother, or being coached or forced to lie against her father which she knew was not true, just to name a few of the possible trauma-related reasons as suggested by the other experts in their reports and Dr Levy which can equally be applied to Ms Ng’s observation. By ignoring or disregarding them in her assessment I agree with Mr Yim that it reflects poorly on her objectivity.

137.  It is also illustrative of the ways Ms Ng appeared to have so easily or lightly brushed aside conflicting or inconsistent statements made by K on many occasions to various professionals, some of which I agree may be explained as simple mistakes or oversight for a small child like K such as dates or places or sequence of events, but factual matters such as when she said she did not see any hair when both her father and grandfather were said to have taken off their pants and exposed their penis to her cannot in my view simply be disregarded or ignored without properly addressing its clear contradiction in her assessment.      

138.  Another revealing illustration of the unsatisfactory ways Ms Ng had reached her conclusion based mainly on her observation of K’s behaviour is that according to the Mother’s case, the Father may have been abusing K even prior to his move to the Jubilant Place Flat and going back to as early as when K was only 3, which if true would mean that K was all these years unaware that there was anything wrong with her father’s behaviour, and according to the Mother not until October 2010 when K allegedly disclosed the same to her, and only because she was asked who would bath her and not because she herself felt anything wrong, in which case how Ms Ng would interpret her keeping a distance from the Father and to cling onto Ms Ng during their meeting almost 18 months later in March 2012 to have anything to do with the alleged abuse is indeed puzzling to say the least.

139.  In the premises it is in my judgment that Ms Ng objectively should not have found that on balance of probabilities there is a higher than 50% chance that K had been abused, or that there would be a similar risk of her being abused in future, and that it is wrong in principle for she to seek to justify her such conclusion by invoking the principle of the child’s interests as the paramount consideration and in the name of safeguarding the welfare of K, as the standard of proof would still be the civil standard on balance of probabilities, and on that basis I am unable to see how she could justify not taking into consideration or sufficient consideration of all those factors and circumstances referred to above in conducting her evaluation of K’s abuse allegations or in arriving at her conclusion. For these reasons I agree with Mr Yim that the said assessment of Ms Ng in her 2 reports that there is a higher than 50% chance that K had been abused by her father or grandfather or that she will run a similar risk in future if she remains in his care and control must be rejected.  

140.  Accordingly, what is left upon which the Mother could advance her case that there is a likelihood of K being harmed by her father or grandfather in future, is her own evidence which is based mainly on what she claimed to have been told by K, and of what K had said in the VRI.

The Mother’s Evidence

141.  It is the Father’s case that the Mother’s evidence is inconsistent, contradictory and unsatisfactory in both her affirmations and her evidence in court, in particularly when she was asked to recount how she first discovered the alleged sexual abuse, that she had to rely on what had been stated in both of the police statements given by her and the maternal grandmother in her first report to the police, and when she was asked why in her evidence in chief that she said she had in October and November 2010 told various social workers and school teachers of possible sexual abuse of K by both the Father and Grandfather, but in her police statement she stated that it was only until 22nd December 2010 when she learnt that the Father was also involved, she just blamed it as a mistake on the part of the police.

142.  Even after referring to both police reports, Mr Yim argues that her evidence was still contradictory and unsatisfactory in that she said K first mentioned the abuse to maternal grandmother on a school bus journey in October 2010, but when it was pointed out to her that it was both in her earlier evidence as well as the maternal grandmother’s police report that K first revealed it when the maternal grandmother was giving her a bath, again she had to read the police statements to refresh her memory, of which Mr Yim submits as clear demonstration that she was merely relying on the contents of the police statements rather than telling the truth from memory.

143.  Her evidence on how she leant of the 2nd alleged sexual abuse is according to Mr Yim equally unsatisfactory in that she stated in both her affirmation of 28th February 2012 and in court that K first disclosed to maternal grandmother during their trip to Nanjing in August 2011 when she was giving her a bath that her father had abused her again on the 1st day of her release from PLK on 14th June 2011, but it was not mentioned at all in her police report of 19th August 2011 (“P – 6a”), whereas the maternal grandmother stated in her police report dated 16th August 2011 (“P – 6b”) that K told her that the 1st time her father abused her again on her return from PLK was on 10th July 2011 during their trip to Guangzhou, a significant conflict with the Mother’s evidence which she was unable to explain, nor did she ask the maternal grandmother to come to court to clarify that issue. In fact, given the importance of the grandmother’s role in discovering the alleged abuse on both occasions, it seems very unusual indeed why she was never called as the Mother’s witness throughout the trial, and that somehow the Mother even refused to allow the Social Welfare Officer Ms Wong to interview the grandmother for her investigation report submitted to this court on 19th April 2012, which casts further doubts on the truthfulness of her allegations.

K’s VRI Evidence

144.  The essential question one must ask of K’s evidence given in the VRI must be this : Why did she tell of those abuses if they never occurred? In my view there can only be 2 possible answers, i.e. either K had become suggestible by adopting what she believed to be what her mother had wanted her to say due to her parents’ conflicts over the years, as suggested by Dr Levy as one possibility; or that she had been deliberately coached by her mother to say so, as suggested by Mr Yim for the Father. On the basis of the evidence before the court, I am convinced it is the latter, and there are ample such evidence.

145.  While the former suggestion is of course possible, as K has clearly shown to have become suggestible in adopting her parents’ belief as reported by both social workers and psychologists referred to above, and hence when she was asked by her mother and/or maternal grandmother about how she was bathed by her father and paternal grandfather, it is possible that she might have said things that she thought were what they wanted to hear or that they would please them but unfortunately misled them to suspect sexual abuse. After all, it is not possible to bath a child without touching her body, but that such action can be easily twisted or misinterpreted to become associated with abuse under certain circumstances.

146.  However, it is the firm evidence of the domestic helper Ms Wah Yuni that she had always been the one to give K her bath every day from the first day of her employment, for which she was hired to take care of K on a full-time basis to the extent that she could not even take her home leave until K’s school summer break when she was to stay with her mother, and whom I find to be an impressive witness who explained as a matter of fact how it was her full-time duty to take care of K, which was the reason why she was employed by the Father in the first place, and appeared bemused when asked by Mr Ho for the Mother whether the Father or Paternal Grandfather had ever bathed K as if it was the strangest question in the world. I have no doubt she was telling the truth that she had always been the person to give K her daily bath, and that neither the Father nor Grandfather had ever done so.

147.  Accordingly it would therefore be difficult to see how K would tell her mother that it was her father or grandfather who would give her the bath, let alone about their exposing their penis while doing so, and that she would continue to say so on her own accord in her subsequent VRI, unless she was coached by her mother, as argued by the Father.

148.  To accuse a parent of putting his or her small child through such a terrible ordeal over such a long period of time is unthinkable to say the least under any circumstances, and no matter how many bitterly entrenched parents that I have seen in all my years in this jurisdiction, I have always refused to believe that a parent would intentionally put his or her child in harm ways. Sadly all the evidence in this case show that the Mother is guilty of just that, not necessarily intentionally but certainly recklessly in what can certainly be described as a horrific Machiavellian scheme to wrestle K from her father’s care and control.

149.  One may of course argue on her behalf that having earlier conceded care and control of her daughter to the Father, there is no reason why she would take out her present application so soon thereafter unless it was out of her genuine concern for her daughter’s welfare and interests. Mr Yim however argues that she was financially motivated in her action, as noted above by her stated claim for a bigger share of the sale proceeds of the former matrimonial home, and later in her even more revealing written submission on the issues of ancillary relief (B1 : 152) for the pre-trial review on 10th September 2010 :

“ 於情於理，呈請人忍痛將女兒的管養權給答辯人，答辯人理應全部承担起女兒的撫養費用，但是作為一個男人，不但沒有絲毫感激之心，反而利用女兒管養權要我支付每月高達HK$10000.00的撫養費，完全將女兒的撫養責任推得一干二淨。答辯人月入HK$37,000以上、有錢投資股票、有錢僱用2個印傭照顧其父母，卻不願承擔撫養女兒的責任。”

150.  After that pre-trial review when the Father’s intention to apply for child’s maintenance against her in the forthcoming ancillary relief became crystallized, the Mother then filed her affirmation in opposition on 7th October 2010 in which she made an equally revealing statement as follows :

“ 原以為我主動將女兒交由答辯人照顧，這場離婚訴訟得以順利解决，誰不知當我看見對方的「經濟狀況陳述書」的內容時，我感到極大憤怒!同時亦證實對方爭奪小朋友的管養權的真正企圖是詐取金錢。”

151.  It is quite clear to me that she felt at that stage very aggrieved and resentful of the Father’s request for her to contribute towards K’s living expenses after she thought she had already given up the daughter to him, which Mr Yim submits would easily become her motive to re-claim her daughter’s custody so that she could turn around to apply for maintenance against the Father and for a bigger share of the sale proceeds. The timing of her application and her various police reports detailed in the chronology above all go to support this argument.  

152.  Her reaction and response to the results of the various MDCC and police investigations also go to support Mr Yim’s argument. If it is indeed true that she only learnt from K in October 2010 about the Father and Grandfather giving her the bath at their new flat, any sensible mother under the circumstances would have immediately talked to the father about the matter before taking it to the authority. Here the Mother never once did that for more than 2 months before she made her 1st police report, and that was on the day before she was to go on holiday with K for Christmas, which is not what one would expect from a genuinely concerned parent. 

153.  Furthermore, after the 1st MDCC had found it was not a sexual abuse case, instead of breathing a huge sigh of relief that her daughter had not been abused and could finally go home after 4 months in PLK, as most parents would do, she almost immediately snapped a physical abuse allegation against the Father with total disregard of the fact that her daughter would have to go through the same ordeal all over again, and again the whole process was repeated after the Father was cleared of that allegation. All these behaviour of the Mother in my view just go to demonstrate that she was indeed hell bent to get the daughter from the Father at whatever costs it may take, even at the risk of K being placed in PLK.

154.  Even more alarming is the way she had taken what seems to be a personal vendetta against whoever that stood in her way or appeared to side with the Father in respect of those abuses allegations, such as the numerous complaints, mostly unfounded or unreasonable in my view, against the many social workers and school teachers whose views or reports she did not agree with, with outrageous accusations that all of them were having an improper relationship or association with the Father, or in the case of K’s school bus helper by falsely accusing her of receiving bribe from the Father to the ICAC thus causing her to lose her job. Not surprisingly, Ms Ng was the only one unaffected.      

155.  Such behaviours of the Mother had in fact caused the Father to question her mental state, of which he was concerned was the result of her brain operation years ago, and which was the reason why the parties had agreed to undergo a psychiatric examination at the government hospital prior to the trial, but which the Mother had later refused to do so on the basis that she did not trust that her examination would be fairly conducted by government doctors given her belief that the social workers involved in this case had all ganged up against her in their reports. 

Conclusion

156.  With these behaviours of the Mother, when considered together with her conflicting and inconsistent evidence, as well as all the relevant reports and findings of the 3 MDCC, and with her probable motive, not only am I not satisfied on balance of probabilities that K had been sexually or physically abused by the Father or the Paternal Grandfather, and hence there is no basis or proven facts upon which to infer any such risk or harm that K may suffer in future, I am also convinced that those abuse allegations were in fact fabricated by the Mother in order to obtain K’s custody so as to gain an advantage in her ancillary relief claims against the Father.

157.  In the premises Mr Ho’s argument for the Mother that even if the court does not accept that sexual abuse allegations have been established on balance of probabilities, that the allegations would leave a grave sense of discomfort to everyone who cares about the welfare of K that there may still be a real possibility that sexual abuse did happen and hence would continue in future if she is put back to the care and control of the Father is both flawed and untenable, and must be rejected on the basis of the legal principles referred to above. As pointed out by Mr Yim, the Mother is no more than saying that the court may probably get it wrong by finding that the alleged sexual abuse not established on balance of probabilities, and that to safeguard the welfare and interests of K, it would be ‘safer’ that the court should nevertheless find that such a risk may happen in future. This argument that the court should act just on the basis of suspicion is clearly wrong in principle, and it would be relevant to repeat here what Butler-Sloss LJ said in Re M and R, supra at 204B :

“Mr Newton suggested that it is inappropriate in the context of s 1 and the welfare principle to apply the ordinary rule in civil proceedings that something which is established on the preponderance of probabilities should be treated as certain, while something which is not so established should be treated as not having happened at all. We disagree, for this really amounts to no more than saying that the court may get it wrong in deciding whether or not a fact exists. Court do indeed on occasion get it wrong, but this is because of the fallibility of human institutions. Such fallibility cannot be cured by adopting the test Mr Newton propounds, for the scope for going wrong would be broadened, not narrower, were the court to proceed not on the basis of proven facts, but on the basis of suspicion.”

158.  Accordingly the Mother’s variation application is dismissed, and that she must return K to the care and control of the Father on his next access to her at the Social Welfare Department, which I understand will be on the coming Saturday before the start of her Christmas school break. Given what I have found against the Mother’s behaviours in this sad sorry saga, I want to make it very clear to her that any infringement of this order will be dealt with severely and promptly by the court, and to ensure that the handing over of K to her father will be carried out smoothly and orderly, I direct that it be assisted and supervised by the Social Welfare Officer in-charged.

159.  I shall next hear from those representing the parties on what sort of access or contact that the Mother should have to K in future in view of my findings as to her behaviours and the concerns over her mental state to ensure the no further emotional or psychological harm will be caused to K, as well as the question of costs, which the Father will in the circumstances no doubt wish to seek an order against the Mother. Last but not least, I want to express my gratitude to both Mr Ho and Mr Yim for their most valuable assistance and for conducting themselves in a most appropriate manner throughout what was undoubtedly one of the most difficult and emotive trials ever in my court.