C v. S

HCMP 929/2017

[2019] HKCFI 2068

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 929 OF 2017>

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D E C I S I O N
(On Leave to Appeal)

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Introduction

1.  As said before, the detailed background of these wardship proceedings has been set out in the numerous published judgments of the Family Court, this Court and the Court of Appeal. 

2.  This Court handed down a decision on 21 June 2019 in respect of the summons taken out by the Official Solicitor on behalf of N on 7 May 2019 (“21.06.19 Decision”).  I will follow the previous definitions, unless otherwise indicated.

3.  For the reasons set out in the 21.06.19 Decision, I allowed the application by OS and ordered that the medical professionals at the YMT Child Service be authorized to formulate any treatment plan, interview sessions for N that may involve either or both parties.  The Court did not include any of the directions which the Father sought to impose at the time.

4.  The Father (plaintiff) now seeks leave to appeal against the order.  The leave application is directed to be dealt with on paper.

5.  Counsel Mr Richard Todd and Ms Jennifer Fan lodged their written submissions for the Father.  Counsel Mr Eric Leung lodged written submissions for OS and Messrs Stevenson Wong & Co lodged their written submissions for the Mother. 

Father’s draft grounds of appeal 

6.  There are altogether 6 grounds of appeal (“Grounds”). Briefly, this Court was wrong in :

1)  Refusing to consider the Father’s directions;

2)  Condemning the Father for being unavailable for the hearing on 29 May 2019;

3)  Holding that Father did not consent to OS’s summons;

4)  Condemning Father for wanting to meet the OS and Dr Ho;

5)  Criticising the Father for asking for 4 directions which would cause delay;

6)  Holding that the usual order in a child welfare matter was that costs should follow the event.

Ground (1)

7.  As pointed out by Mr Leung on behalf of the OS, this Court did consider those additional directions proposed by Father, including the need for the medical professionals to involve “either parent” or “both the parents” in interview with N should the medical professional need to do so and this can be seen in paragraphs 38 and 40 of the 21.06.19 Decision.

8.  Further, as submitted by Mr Leung, the Father’s proposed additional directions were unnecessarily onerous not only on the parties but also on the treating medical professional who should have the autonomy to formulate the treatment plan for his/her patient as deemed fit.  As I have said, I do not see “at this stage” how those directions would assist the treating doctor who should have a free hand.

9.  As further submitted on behalf of Mother, this Court was aware of the proposed directions and the then objections from OS and the Mother.  It was after considering the submissions from all that this Court made the order. 

10.  There is nothing to stop Father, or indeed Mother, to issue a summons to seek further directions in relation to the treatment plan for N, if such need should arise in future.  

11.  I am of the view that Father had not made out Ground (1).

Ground (2)  

12.  “Condemn” is a strong word.  It would appear that Father and his two Counsel Mr Todd and Ms Fan had completely misunderstood the observation made by this Court in paragraph 29.  So far as this Court is aware, there is no requirement imposed by this Court that Father has to attend personally any hearing before the Court so long as his legal representatives appear on his behalf.  There was no reason for this Court to “condemn” him if he were to be absent at the hearing.  The observation made by this Court in paragraph 29 was made only because the Father was trying to use his inability to attend (as alleged by him) to try to seek an adjournment and to seek a further 28 days to file an affirmation in reply and to seek a 2 hour hearing, and those directions sought by Father would no doubt substantially delay the substantive hearing of a matter which his own Counsel had described as relatively simple.  Father himself had accepted way back in December 2017, namely 18 months ago that N needed urgent treatment.  There was obvious urgency for the treating doctor to formulate a treatment plan and any delay would not have been in the best interests of N.

13.  I find there was no prospect of success on Ground (2).

Ground (3) 

14.  When OS sent his summons before issuing the same to the Father by letter dated 30 April 2019, no consent was given by Father. When Mother wrote to Father on 29 May 2019, inviting him to give his consent with the issue on costs to be dealt with separately, no consent was given by Father. 

15.  In my view, consent subject to Father’s proposed directions/conditions of improvement means no consent.  As submitted on behalf of Mother, the suggestion that Father consented to OS’s summons but with strings attached is the same as Father consenting to it defies common sense. It is not clear on what basis Father’s Counsel had put forward this submission.

16.  I find Ground (3) has not been made out.

Ground (4)

17.  Again, Father and his Counsel seemed to have misunderstood what this Court had said.  This Court did not “condemn” Father for wanting to meet the OS and Dr Ho.  What this Court had observed in paragraph 15 of the 21.06.19 Decision was that Father did not consent to OS’s suggestion and instead requested that the OS and Dr Ho to see him individually first, namely Father was imposing conditions before he was willing to consent to OS’s suggestion.

18.  OS represented N, and Father had his own solicitors representing him.  OS had made his position clear and as set out in paragraph 19 of the 21.06.19 Decision that as Father was legally represented, OS failed to see why the Father insisted on seeing OS direct.

19.  It is not clear why Father’s Counsel would submit that OS’s position was “bizarre”.  Even though OS was actively involved with the Father including attending mediation sessions with him and the Mother, this would not mean that OS would find it appropriate to see Father direct without his solicitors.  Further, so far as this Court is aware, Father did not follow up on the matter or to explain to OS why he had wanted to see OS direct without his solicitors or to make an application to see OS direct. 

20.  I do not find this Ground has been made out.

Ground (5)

21.  It now appears Father’s Counsel is submitting that any delay was de minimis in any event.  It is further submitted on behalf of Father that the delay was caused by Mother’s failure to agree to 4 reasonable directions.

22.  Suffice to say, as mentioned earlier, Father had accepted in December 2017 that N needed urgent psychiatric treatment.  As pointed out on behalf of the Mother, it was Father’s decision to withhold consent to OS’s summons until the proposed directions were agreed which had caused delay.

23.  Again, I do not find this Ground made out.

Ground (6)  

24.  Costs are in the discretion of this Court. As stated in paragraph 43 of the 21.06.19 Decision, I have taken into account the letters from Father’s solicitors which indicated Father’s stance was to, say the least, un-cooperative and not conducive to an early resolution of the matter and it was under those circumstances, namely the Father’s conduct in this litigation, that I said I saw no reason why costs should not follow the event.  The Father had not been able to demonstrate why this Court was “plainly wrong”.

Conclusion  

25.  Having considered the Father’s intended grounds of appeal, I am not satisfied that the appeal has any reasonable prospect of success or there is any other reason in the interests of justice why the appeal should be heard.

26.  In the above circumstances, I decline to grant leave, and dismiss the Father’s summons issued on 5 July 2019.

27.  I further order the Father to pay the costs of the Official Solicitor and the costs of the Mother of and incidental to this leave application.  Such costs are to be summarily assessed and to be paid within 7 days of summary assessment.  The Official Solicitor and the Mother are to lodge their respective statement of costs within 7 days and the Father to lodge any list of objections within 7 days thereafter.