WSM v. FSY

CACV 352/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 352 OF 2004

(ON APPEAL FROM FCMC 8544 OF 2002)

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J U D G M E N T

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Hon Cheung JA (giving judgment of the court) :

The appeal

1. The parties were formerly husband and wife.  For the purpose of this judgment, we will call them ‘father’ and ‘mother’ respectively.  They were divorced on 25 June 2003 based on the father’s petition of one year separation with consent.  They have two sons.  Custody of the two sons was granted to the mother with access (including staying access on alternate weekend) to the father by Deputy District Judge Kot on 6 September 2004.  The father now appeals against the decision.  He wishes to have the custody of the second son.  The execution of the custody order was stayed by Woo VP on 22 November 2004. 

Facts

The family

2. The parties married on 26 April 1995 in Chengdu, Chongging in the Mainland.                At that time, the father was a Hong Kong resident while the mother was a Mainland resident.  After the marriage, the mother moved to live in Shenzhen, waiting for her application to come to Hong Kong to be approved.  A son (‘the first son’) was born on 10 November 1995 and another son (‘the second son’) was born on 26 November 1996.  Both were born in the Mainland.  They were looked after by the mother after their birth.  The first son was able to come to Hong Kong on his own to join the father in 1998.  But the second son had to remain in Mainland with the mother until May 2000 when he was able to come to Hong Kong together with the mother.

3. Marital discord appeared soon after the mother came to Hong Kong and the parties became separated and lived in separate premises near each other.  Although the judge said that the separation occurred in June 2001, the Social Investigation Report dated 15 December 2003 (‘the first report’) stated the parties became separated in May 2002.  The father admitted in his evidence that the mother moved out at about the end of 2001. 

4. However, very little turned on the exact time of separation.  What is important is that the mother moved out with the first son and lived in a separate household while the second son lived with the father and the grandparents.  The parties were divorced on 25 June 2003.

The mother

5. The mother lives in a flat of her own with the first son.  She is an insurance agent.  Because of her flexible working hours she was able to look after the first son even with the job.  She also has a part time domestic helper who would look after the first son if she has to work at night.  Her own mother also came intermittently from the Mainland and helped her to look after the first son. 

The father

6. The father is a merchandiser and is required to travel to the Mainland frequently.  On occasions he has to spend a few days in a week in the Mainland but this does not happen every week.

7. The father is living with the second son since the parties’ separation together with his own parents (‘the grandparents’).  The practical task of looking after the second son lies with the paternal grandparents. 

The sons

8. Both sons are at school.  They have a close relationship.  On alternative weekend they would go to the flat of the other parent and spent the weekend there.

The reports

9. Both the first report and a Further Social Welfare Report dated 23 August 2004 (wrongly 2003) (‘the second report’) described the relationship between the mother and the two sons to be a loving one.  The first report stated that the relationship between the mother and the first son to be a close one, while the second son has a relatively distant relationship with the mother but a closer one with the father.

10. The second report also stated both sons enjoyed the maternal affection of the mother and would cling to her.  Like the first report, it also stated that the first son developed a closer relationship with the mother than the second son.  The second son had strongly expressed his view to live with the father.

11. Both sons did not talk much about the father.  But they said they liked to play video games with the father and go cycling with him.  The father and sons relationship was described as satisfactory.

12. Both reports recommended that the father and mother should have separate custody of each of the two sons, namely, the father should have custody of the second son while the mother should have custody of the first son.

The principles

13. The application for custody was made under the Guardianship of Minors Ordinance (Cap. 13).  Section 3(1)(a) gives the following guidance on the determination of custody :

1)	The welfare of the child is the first and paramount consideration.
2)	The court is required to give due consideration to, first, the wishes of the child having regard to his age and understanding and the circumstances and second, any material information including the content of a social welfare report.
3)	The claims of both parents to custody are equal in nature and neither one is superior to the other.

The last point is reinforced by section 3(1)(b) which provides that the rights and authority of the parents are equal.

The approach of the judge

14. The judge clearly has these principles in mind.  She also took into consideration the following : the needs of the children in terms of their physical, emotional and learning needs; the ability to look after the children by the parents and other persons; the effect and harm on the children if there is a change of circumstances and the plans concerning the children as proposed by the parents.

The overview

15. If one looks at the evidence including the two reports, it is clear that the picture that emerged is that the mother is able to look after the two children personally which is not the case with the father who has to entrust the task to the grandparents.  The father’s ability to take care of the two children on a day-to-day basis is said to be ‘limited by his preoccupation with work and his frequent absence from home’.  Furthermore even with one child, the father has to rely on the assistance of the grandparents who encountered difficulties in the supervision of the second son. 

16. It is also clear that the mother has a firm plan on how the two sons should be brought up.  The first son attends school in the afternoon and the mother looks after him in the morning and takes him to school.  The second son is now in the morning school and the plan would be to arrange him to attend afternoon school as well (the school agrees to the change) so that the mother could look after both sons in the morning.  She also has made arrangement for someone to look after them if she has to work at night.  All these show that it would be the mother who would play an active role in the upbringing of the children. 

17. On the other hand, for all practical purposes, the grandparents would be the ones who would look after the second son.  From what the reports revealed they have not been particularly successful in asserting discipline on the second son.  The father has suggested that he would try to spend two-thirds of his time in Hong Kong in order to look after the second son.  But as the judge observed, the husband really was not able to implement his wish.  We respect the father as a responsible person and he has to earn a living but when it comes to the question of looking after the children, the objective evidence shows that he is not able to fulfill a full parental role.

18. It has to be borne in mind that it was the mother who has been looking after the children since their birth.  The first son was under her care from November 1995 to 1998 when he came to Hong Kong and then from May 2000 onwards when she came to Hong Kong.  She looked after the second son from November 1996 until she moved out from the matrimonial home.  The first son has achieved excellent results at school and developed a close relationship with her.  This is clearly a reflection of her ability as a mother. 

19. The second son is now about eight years old, reaching nine in about four months’ time.  Human wisdom tells us that at this age the mother plays a more prominent role in his upbringing both in terms of his emotional and physical needs.  There certainly is no other evidence to suggest that this would not be the case here.  Had the father been able to provide the same attention as the mother, a different consideration may well arise.  But in this case the father is required, because of his job, to leave the task of looking after the second son to the grandparents.  No doubt out of a sense of responsibility and also no doubt as members of a typical Chinese family, the grandparents are prepared to assume such a role, but in our view such a task should fall on the natural parents and from what we can see, the mother is eminently suitable to look after the two sons on her own.

20. Further the two sons are about the same age.  They are only one year apart.  It makes sense for two young siblings of similar age to grow up under the custody of one of their parents, namely, the mother, instead of living in two separate households.

The recommendation

21. The only substantive ground of appeal in this case is that the judge has decided not to follow the views of the social workers who recommended separate custody. 

22. As we understand the position, the social welfare report, is, like all other material information, one of matters that the court should pay due regard in determining what is in the best interest of the child.  No doubt because the social workers have carried out the background investigation, they are able to provide details of the family situation which are not otherwise available to the court.  And to that extent the courts have said in the past that if the recommendation of the welfare officers are not followed then it is highly desirable that the judge should say why he has not done so : see W v. W (A minor : custody appeal) [1988] 2 FLR 505. 

23. This is a matter of commonsense but as more recent cases show, the judge’s reasons for reaching his own decision instead of relying on the recommendation are normally the very reasons for his declining to follow the recommendation.  Unless his reasons are manifestly wrong he is not under any further duty to spell out the reasons for departing from the recommendation : see Re V (residence : review) [1996] 3 FCL 101 and Naziya Aslam v. Rafagat Ali  (CACV 144/2003).  This is an approach we will also adopt.  Otherwise the matter will be enmeshed in technicalities. 

24. We will further add that a social welfare report is not a special category of material information, nor should the recommendation assume a status somewhat akin to a legal presumption which needs to be rebutted.  Ultimately the decision making lies with the judge based on the available evidence and guided by the relevant principles.  See also Z and Y [2001] 1 HKLRD 261.

25. The only reason that a recommendation for separate custody is made is because the social workers considered the existing arrangement should be maintained.  It is said that the second son ‘has a more distant relationship with the mother and is resistant to live with her.  As he is already seven years old, it is undesirable to make a child care plan against his wish’.

26. The judge came to the view that the second son is too young to fully understand the question of custody and what arrangement is best for him.  In our view the judge is clearly correct in her analysis.  According to the reports the second son was more playful, his motivation in studies was weak and was found to be emotional at times but he had no problems at school.  The judge has considered that the second son being under the rather lax supervision of the grandparents for a substantial period naturally does not wish to live in a disciplined surrounding with the mother.  But given time, with the mother’s patience in guiding him and the good influence from the first son, the judge believed that the second son will remove his resistance towards the mother.

27. We agree.  A separate custody order is an unusual order in the first place and strong circumstances would be required to justify the making of such an order.  There is none in this case.  From the reports and the evidence there is nothing to show that the mother has treated the second son differently from the first son to the extent that the second son may legitimately feel that he would not be loved or may even be mistreated by the mother and hence his resistance to live with her.  Looking at the matter in the round, we are of the view that the social workers’ reliance on maintaining the ongoing situation is not based on substantial grounds.

The new evidence

28. There are four other points which called for discussion.  The first is that the father in his affirmation in support of his application for leave to appeal has said that the second son had said that he would jump down from a building and refuse to go to school if he is forced to go to live with the mother.  We admitted this affirmation on a provisional basis for this appeal but we do not regard the content would materially affect the outcome of this case.  The court will need to consider the wish of the child and pay heed seriously to any utterance by the child of harming himself.  However the second son is only eight and what he has said must be considered in a proper context.  This is clearly a situation where the father acting responsibly should explain to the second son what is right and what is wrong and why he should not do any act which is harmful to himself.

Mutual arrangement

29. The second is that when the parties separated, it was mutually agreed between them that the mother would only take the first son with her and leave the second son with the father.  In our view, it is understandable why the mother would only take one of the sons with her at the time of the separation.  After all she had to start a new life on her own and she might not be able to take care of both sons at the same time.  It does not, however, mean that she does not want the second son.  In any event, in child matters, one is concerned with the welfare of the child and if his welfare is best served by granting custody to one of the parents, the previous arrangement between the parents would not pose a hurdle to the court’s decision.

Attitude of the mother

30. The third is somewhat related to the second and it is about the attitude of the mother towards the custody of the second son.  In her affirmation dated 25 August 2004 she had said that concerning the relationship of the two sons, she did not think that they should live together in order to maintain a good relationship because she was able to access the second son quite frequently and the two sons got on with each other pretty well.  She also said that the two sons told her that they were happy with the existing arrangement and they did not want any change.  She further asked the court to adopt the social worker recommendation. 

31. On the face of it, the mother seemed not to want the custody of the second son.  However, this stance must be considered in the context of the custody proceedings.  The father wanted the custody of both sons.  Faced with such a demand the mother in her affirmation opted for a less confrontational choice for fear that she might not even get the custody of the first son.  The position is understandable.  Certainly in the hearing before the judge the mother did not concede that the custody of the second son should be granted to the father.  On the contrary, while she said she did not insist to fight for the custody of the second son, she informed the judge that she had the ability to look after the second son as well as the first son and explained the plans she had in mind concerning the schooling of both sons and how they would be looked after.  All these were inconsistent with a parent who was prepared to give up the custody of her son.  The judge recognized the dilemma that the mother faced when she dealt with this aspect of the case.  We do not regard the attitude of the mother was not to ask for the custody of the second son or that the judge had granted custody to a parent who was reluctant to take up such a responsibility.

Further investigation

32. The fourth point is the need for a further social welfare report before the judge and before us.  The judge clearly had an updated report when she dealt with the case.  We see no reason why she should call for another report concerning the arrangement of the second son.

33. We also do not see the need to call for another report before we can make our decision.  Apart from the content of the husband’s new affirmation, there is no evidence that there has been any major or unusual developments in the lives of the two sons or the parents.  That being the case we can deal with the appeal on the existing evidence.  There is certainly nothing in the existing evidence which called for further investigation.  One of the cardinal principles in matters concerning the child is that the case must be dealt with as expeditiously as possible.

Conclusion

34. The granting of custody is an exercise of discretion.  Unless the judge is plainly wrong the appellate court would not interfere.  The judge considered that the welfare of the second son is best achieved by granting custody to the mother.  The judge is clearly right in her decision.

35. The appeal is dismissed.  We will make no order as to costs of the application to adduce new evidence and of the appeal.  The mother’s own costs is to be taxed in accordance with Legal Aid Regulations.