PCY v. CYW

FCMC 3630 / 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 3630 OF 2008

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BETWEEN

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J U D G M E N T

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Introduction

1.  This is a contested application for custody of three little girls - triplets, who were born on the 16 May 2007 and are therefore almost 2 years of age. Both the mother and the father seek sole custody and care and control of them. The father originally stated to social welfare officers that if he was successful in his application that he would not allow the mother to see the girls. During the trial however, he conceded that this was not feasible and agreed inter alia that the mother could see the triplets for limited periods of time. The mother for her part says that the father can likewise see the triplets for limited periods. She does not wish him to have staying access.

2.  From the evidence it would seem that this marriage was built on very flimsy foundations and was fuelled in part by the father‘s desire to have a male descendant. The breakdown has been particularly acrimonious and to a large extent the triplets are now caught in the middle of an ongoing and difficult conflict between their parents and their parents supporters.

The issues

3.  It seems to me that the following issues fall to be determined by this court:

Should custody and care and control of the triplets vest in the sole name of the mother or in the sole name of the father?

Once the above has been determined, what orders should be made for access? How should those arrangements be defined if at all?

Background

4.  The parties are both older – the father is nearly 50 and the mother nearly 40 years of age. The father has not been married before. It is the mother’s second marriage. The father presently works for the Hong Kong postal service. Previously he was a Police officer. The mother is presently a full time mother. She has been engaged in a variety of occupations in the past including waitressing, working in the jewellery trade etc.

5.  The parties met through a marriage advertisement in a newspaper. They married in May 2003 shortly after becoming acquainted through this advertisement. The father subsequently adopted the mother’s daughter by her first marriage. The mother’s daughter changed her name to that of the husband in August 2003.She is presently in foster care in Hong Kong. The husband denies that she is a child of the family.

6.  It seems accepted by both sides, that each wished to have children. This proved problematic and consequently they undertook in-vitro fertilization treatment at Kwong Wah hospital. Eventually through this assisted method of conception the mother became pregnant with the triplets. It is the mother’s case that relations first became difficult when it became known that she was carrying girls as opposed to boys. She says that the husband wanted a male descendant.

7.  On the 16 May 2007 the triplets were born prematurely at 32 weeks. They were tiny. The eldest weighed 1.58 kg, the second 1.64 kg and the third 1.08kg.Not surprisingly the elder two spent the first month of their lives in hospital and the youngest, who also has a hole in the heart, spent a further month there.

8.  In August 2007 the wife moved to Shenzhen with the babies, with the agreement of the husband. The property in Shenzhen is a jointly owned property purchased in 2002 shortly prior to the marriage. It is by all accounts a spacious three bed-roomed property in a gated development. The parties originally used this as a holiday home.

9.  Relations continued to be strained and the marriage eventually broke down completely. The husband issued divorce proceedings on the 3 April 2008 based on the wife’s unreasonable behaviour. Those proceedings are presently defended. Although the grounds of the divorce are in dispute, the wife accepts that the marriage is at an end. She filed an Answer and Cross Petition on the 5 August 2008.

10.  On the 27 August 2008 the husband was ordered to pay the wife a total of HK$17,850 per month, following a hearing to determine maintenance pending suit. Further proceedings were issued for an attachment of earnings order, which were sensibly compromised. In addition an order was made for interim defined access, whereby the father sees the triplets once a week in Shenzhen for about three hours.

11.  It is fair to say that relations between the parents have now deteriorated to such an extent that there is virtually no communication between them. Allegations and counter allegations abound. There have been a number of unfortunate incidences, which have necessitated police intervention. There have also been a number of physical altercations. Unfortunately the girls were present when these took place.

Each parties case

12.  The father has presented a largely negative case. It is premised almost entirely on the basis that the status quo should be changed because the girls have suffered various injuries over the last eight months or so. Consequently he argues that the mother and the other carers have not demonstrated sufficient care in taking care of them and/or that they have been negligent. He maintains that he is in a better position to take up the primary caretaking role and therefore that he should be granted their custody.

13.  The mother’s case is that the status quo should not be changed. She argues that the triplets are doing well, that they have bonded with her and the other carers and that it would be detrimental to them to change the present arrangements. She denies the father’s allegations concerning the injuries suffered by the triplets.

14.  In so far as access is concerned, when urged to consider the issue both sides made proposals for access, which will be discussed in more detail below. They both appeared to have some difficulty in formulating those proposals.

The Law in Hong Kong

15.  The law governing applications concerning children in Hong Kong can be found at s.19 Matrimonial Proceedings and Property Ordinance, Cap. 192 where it is stated that the court has the power to make such order as it thinks fit for the education and custody of children under the age of 18 years.

16.  The general principles governing such applications are set out in s.3 of the Guardianship of Minors Ordinance, Cap. 13, which refers to the welfare of the child as being the first and paramount consideration of the court.

17.  Section 48C Matrimonial Causes Ordinance, Cap. 179 adds that

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

18.  I was also referred to a checklist recommended by the Law Reform Commission, which many Judges, me included, have found useful when determining issues relating to children. For ease of reference I have reproduced that checklist below. I will not refer to this checklist in its entirety when considering the issues, but I will refer to those sections which seem to me to be of particular relevance when considering the matter overall.

Checklist

(a)  the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b)  the child’s physical, emotional and educational needs;

(c)  the nature of the relationship of the child with each of the child’s parents and with other persons;

(d)  The likely effect on the child of any change in the child’s circumstances;

(e)  The child’s age, maturity sex, social and cultural background and any other characteristics which the court considers relevant;

(f)  The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

(g)  Any harm which the child has suffered or is at risk of suffering;

(h)  Any family violence involving the child or a member of the child’s family;

(i)  How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(j)  (a broader formulation along the lines of) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(k)  The range of powers available to the court under this Ordinance in the proceedings in question;

(l)  Any other fact or circumstance that the court thinks is relevant.

Discussion

19.  I must now turn to consider the issues, the law and the parties evidence as set out in their affirmations and as given orally by them during the hearing. In addition I heard from the father’s sister, Mdm P and also from the two carers who assist the mother, namely her sister-in-law – Mdm L and her niece Mdm W. Two social workers attended court to give evidence, Ms L from Hong Kong and Ms C from Shenzhen. Each social worker has filed two reports each.

Should custody and care and control of the triplets vest in the sole name of the mother or the father?

Any harm which the children have suffered or are at risk of suffering

20.  As indicated above the mother argues that the status quo of the triplets should be maintained. The father wishes them to live with him and his sister. In support of his case he refers to a number of injuries sustained by the triplets from September 2008 to date.

21.  The father has identified 7 different injuries, which I will consider in turn:

a)  A red swollen mark on the left side of child no 2

b)  A bite mark on the left arm of child no 1

c)  A red rash on the buttocks of child no 1

d)  The broken right arm of child no 3

e)  A bruise on the forehead of child no 1

f)  Stitch marks on the head of child no 2

g)  A bruise on the thumb of child no 1

A red swollen mark on the left side of child no 2

22.  The father has produced a number of photographs showing each of the injuries complained of. The first shows what appears to be a bruise on the head of the second child. When asked, the mother denied that there was any such mark, whereas both carers i.e. Mdm L and Mdm W said that this triplet had a swelling on both sides of her head and that these had been with her since birth. From the photograph it seems clear that there is a slight swelling on the child’s head. I did not find the mother’s blanket denial very helpful. However I accept what both Mdm L and Mdm W have each said. The fact that the child may have had a slight swelling on her head seems entirely credible bearing in mind the fact that she was prematurely born. In any event, even if that were not the case, I do not accept that this is indicative of insufficient care being taken of her.

A bite mark on the left arm of child no 1

23.  The husband points to a bite mark on the forearm of the first child and even went as far to suggest that an adult had bitten the child. I have to say that this seemed to me to be an incredible assertion. I accept entirely the mother’s explanation in this regard namely that the first child had been bitten by the third. I agree that this can happen amongst children of this age and I found the husband’s suggestion in this respect singularly unhelpful. I also accept that the only way to prevent such things happening is to stop the children from playing with each other. It seems to me that this would not be either possible or desirable.

A red rash on the buttocks of child no 1

24.  The husband suggests that the rash on the first child’s buttock is indicative of the mother not taking proper care of her, i.e. by not changing her diaper frequently enough. The mother points out that this child has a skin allergy and that consequently she is more susceptible to rashes. Again I accept the mother’s explanation in its entirety. I have also taken note of the fact that from the photograph it is clear that the rash is not very severe in any event.

The broken right arm of child no 3

25.  This is by far the most serious injury suffered by any of the three children. The mother became aware that the third child was experiencing difficulties with her right arm in that she cried when it was held. She observed the child for a couple of days and when the situation didn’t right itself she took the child to a hospital in Hong Kong. The mother doesn’t know how the injury happened. There was a suggestion that the injury may have occurred whilst the father was having access to the child. There is no evidence to support this and again I found the unspoken inference singularly unhelpful. The mother told the social worker that the child may have fallen out of bed, but other than that she has no idea how this injury could have taken place. The father maintains that this is a clear example of the mother’s lack of care and/or her negligence in caring for the children. I do not agree. Accidents happen. It is an unfortunate fact of life. The mother dealt with this injury in an entirely appropriate manner. She cannot be criticized in that respect. The child has made a full recovery.

A bruise on the forehead of child no 1

26.  The father refers to a photograph showing a small bruise on the forehead of child no 1.The mother’s explanation that this occurred when a Dr on the mainland tried to insert a saline drip into her forehead lacks credibility. Put simply I do not accept the mother’s explanation. It is a small bruise and is much more likely to have been caused in some other way. Mdm L admitted when asked that the saline drip was eventually inserted into the child’s hand. This seems much more likely in the circumstances. But in any event, notwithstanding that I still do not necessarily accept that a small bruise on the head of a child is indicative of a lack of care on the part of the mother or the child’s other carers.

Stitch marks on the head of child no 2

27.  Likewise I have some concerns about the explanation given by the mother for a small scar on the head of child no 2.The father says that this appears to be a scar from stitch marks. It is not possible to determine from the photographs whether this is the case or not. The mother says that the child got the scratch when she fell into a bush of butterfly flowers and cut her head on the thorns. It was suggested by the husband’s counsel that this would be very hard to do – as the scar is on the very top of the head and the child does not appear to have suffered any other injuries. I agree that this does not appear to be very likely in the circumstances. I do not know how the child received the scar. In any event it is a fairly minor injury and is not necessarily indicative of a lack of care on the part of the mother or the children’s other carers.

A bruise on the thumb of child no 1

28.  This is the last injury. It shows that child no 1 has a black nail and bruise on her thumb. The bruising is not very extensive. The explanation of Mdm L, who was present at the time, is that the child caught her hand in the door of the toilet when she followed Mdm L, who had gone in there to wash her hands after changing baby no 2’s diaper. Mdm L said that she immediately applied medication on the affected area following the incident. Again this seems to me to be entirely appropriate response in the circumstances.

29.  In conclusion I do not accept that the injuries outlined above are of the magnitude needed to support a change of status quo. It has been suggested that the children have suffered a certain degree of harm and that they may be at risk of further injury. The injuries themselves, apart from the broken arm, are very minor in nature. It is impossible to prevent children from getting cuts and bruises from time to time. Further there is nothing to suggest that the father will be able to do any better if custody were granted to him. The mother’s counsel suggests in her closing that the father has exaggerated the incidents/accidents. With respect I agree.

Childcare plan

30.  The father has put together a sensible childcare plan. He presently lives in an apartment of approximately 500 square feet, which is self-owned. He has rented a second flat in the same block. He has changed positions within the post office, which he says means that he will not be required to work overtime. He will work regular hours 5½ days per week. He says that his sister, Mdm P will care for the children during the day with the assistance of a Filipino Maid. He will care for them in the morning before he goes to work and on his return in the evening.

31.  Ms C, the international social welfare officer observed in her first report that the babies “looked calm and natural being held by the father”. In her second report she added “The triplets looked relaxed and contented with the father, uncle and aunt”.

32.  However I have also noted the observation made by Ms L, the social welfare officer from Hong Kong when she said in her report of the 3 October 2008

The petitioner Father, Mr P, showed readiness to take care of the triplets throughout the social investigation. He demonstrated his effort in preparing a better living environment and arranging childcare assistance so as to restore the children to his care in Hong Kong. While Mr P’s effort was appreciated, the proposed childcare plan was not convincing. Both Mr P and his younger sister had no previous experience in rearing young children Though they claimed that they were participated in taking care of the triplets, there was no previous track record or past child care history to suggest the paternal family was able to provide adequate care and attention to the triplets.

33.  With respect I agree. Although admirable Mr P child care plan lacks substance. He has never cared for young children on a full time basis and on his own evidence his only previous childcare experience was in helping to care for his younger brother when he himself was a child. His sister likewise has no previous experience with young children. It is commendable that Ms P has enrolled in a childminding course at the school of Continuing and Professional Studies at a university. But this is no substitute for experience.

34.  I should add that I have no doubt that all of the adults involved in this case love the triplets very much and wish to nurture them going forward. That however is not the issue. Rather I have to decide what is in the best interests of the triplets at this point in time bearing in mind that their welfare is of paramount concern.

35.  In contrast the mother’s childcare plan is well tested. Her sister-in-law, Mdm L who has three grown up children of her own, has ably assisted her throughout. In addition she has also relied on other family members and domestic helpers from time to time. Her niece, Mdm W helped out initially but stopped after having a falling out with the father and his sister in December 2007.She returned to help the mother in January 2009.Although a little younger and with no children of her own, Mdm W explained that she has also helped to take care of her baby nieces and nephews. Both Mdm L and Mdm W are housewives. Neither work. Both have said that they are willing to continue to help the mother as long as is necessary. The mother has instigated a system whereby each of the carers is primarily responsible for one of the triplets. The mother is primarily responsible for child no 1, Mdm L for child no 2 and Mdm W for child no 3.The children sleep in the room of the person with primary care of them. From the evidence and the observation of the social welfare officers it would seem that the triplets have clearly bonded with their carers. The adults share the household chores including the cooking and cleaning and the daily routine for the triplets is clearly established. I accept the conclusion of the social worker Ms C that the triplets are well taken care of.

36.  I am also mindful of the fact that the father’s child care plan means in effect that the triplets will not be cared for by their own parent for the majority of the time. There is no suggestion that the father will become a full time carer. Instead their Aunt will care them for. Counsel for the respondent referred me to a number of useful cases on this point - in particular she referred me to L v C CACV 333 of 2003.

37.  In that case the Judge at first instance ordered that the child, who was only 5 years old at the time, remain in the custody of the father. On appeal the child was returned to its mother.

38.  In so far as the role of the natural parent is concerned the Hon Rogers VP, said in that case

What seems to me to have been overlooked in this case was the importance of one of the natural parents being the primary carer of the child. In this case it is quite clear that, albeit both parents work and have similar working patterns, that if the father were to be given custody, the paternal aunt would fulfil that role. Without in any way suggesting that the paternal Aunt does not devote full care and attention to the child, the importance of the natural parent being the primary carer must not be lost sight of. Coupled with that if the parent proposed to be the primary carer is the mother, this too is highly significant because of the natural role of the mother in the rearing of very young children. In this respect I would add that the judge does not appear to have considered the role of the mother in the child’s life in comparison to that of a paternal aunt, however devoted she may be.

39.  I was also referred to the other well-known Court of Appeal decision, Aslam v Ali CACV 144 of 2003.In that case the court at first instance made orders in favour of the father, relying in part on status quo arguments. The Court of Appeal then reversed the decision of the court below and returned the children to their mother. In each case there were also accompanying arguments concerning the role of the natural parent as opposed to other caregivers plus arguments concerning the work life balance of the parents. In Aslam v Ali, the father worked very long hours and the children, who were quite young, were cared for by his two sisters.

40.  Historically the father in this case has worked very long hours. He agreed that he had worked overtime of 57.5 hours in November 2008, 48 hours in December 2008, 60 hours in January 2009 and 36 hours in February 2009.He says that this has now changed. In contrast the mother has been a full time carer of the triplets. She is available to them on a full time basis and can continue to be so. Mdm L and Mdm W confirmed that they were available to care for the triplets for as long as is necessary.

The nature of the relationship of the child with each of the child’s parents and other persons

41.  Given my findings above, I accept that the triplets are closely bonded with their mother, together with Mdm L and Mdm W. I also accept that they have a good relationship with their father and his family, which is of necessity likely to be of a different nature given that they only see him for limited periods of time.

The likely effect on the children of any change in the children’s circumstances

42.  The father is suggesting a drastic change to the triplet’s day-to-day life. It is suggested by counsel that it is relatively easier for children to adapt to a new environment. It is also suggested that this damage may be reduced if the mother was given sufficient overnight staying access.

43.  In that respect I have noted the father’s clear reluctance to give the mother anything other than fairly limited access. Even at the time of the second social welfare report in April he was stating that the mother should have no access at all.

44.  In the circumstances I can see no necessity for changing the living environment of the triplets in such a drastic way.

45.  In conclusion I agree with the observation made by the Hong Kong social welfare officer, Ms L, who said as follows:

The triplets were observed to be settled well under the care of their mother and they were used to and happy with their surroundings and lifestyle. Taking away from their current caregivers would be a disruption of a familiar life of the triplets. With nearly two years’ caring, the triplets had developed a strong bonding with their main caregivers. Sudden separation from their close caregivers might be a damage which should be under-estimated. In view of their young age, the three siblings should be kept together rather than splitting them to avoid any separation anxiety. Taking into consideration that the interest and welfare of the children was of prime importance, it was worthwhile to maintain the continuity of the present child care arrangement in view of the current close mother-child attachment, the proven adequate care and attention rendered by the mother which was particularly vital for young children of under birth weight. On the other hand, to maintain the father’s continual relationship with the children was equally important, a well-defined access for the father was recommended. Given that the parents had conflicting relationship on child caring issue, continuous professional assistance from the concerned social worker of Integrated Family Services Centre was beneficial to this family.

Education

46.  The triplets are now nearly two. The father wishes them to be educated in Hong Kong, whereas whilst acknowledging that Hong Kong has a good educational system, the mother intends at least initially that the triplets be educated at a kindergarten in Shenzhen. Both proposals have something to recommend them. This factor of itself is not sufficient to change my preliminary view of what is currently in the best interests of the triplets.

Other allegations

47.  Each side makes allegations against the other. The mother says that the father and indeed other members of his family suffer from mental problems. She also alludes to an incestuous relationship between certain of the husband’s siblings – all of whom are unmarried.

48.  The father for his part accuses the mother of certain illegal activities, including prostitution.

49.  These are all bare allegations. No evidence was produced to support them either before or during the trial.Consequently I intend to attach no weight to any of the allegations made.

Conclusion

50.  Given the findings made above it seems to me appropriate in all the circumstances of this case for sole custody to vest in the mother.

Once the above has been determined, what order should be made for access? How should those arrangements be defined?

51.  The issue of access is much more difficult, given the stated positions of both sides. I should say at the outset that all things being equal I can see no reason why the father should not have generous access to his daughters including staying access. This is so notwithstanding the fact that it has not been recommended by the social welfare officers.

52.  This is made difficult however by the fact that the father lives in Hong Kong and the mother in Shenzhen. There are significant and practical difficulties caused by transporting three such young children between the two places. Added to that is the fact that the relationship between the parties could not be worse. The father said that he only wishes to have weekly access once a week on Sunday afternoons for three hours at a time. When I asked if he would like access during the week he said no. (I had noted the fact that the father has a great deal of paid leave that has accrued to him over time which he could take if he should so choose). The father said that his siblings would assist him in transporting the triplets by taxi and train and he proposed overnight staying access from 5:00pm on Saturday to 5:00 pm on Sunday on the second and fourth weekend in every month. Bearing in mind the distances involved this means that the father would be travelling with the triplets for a great part of the time he is proposing to have with them. When asked if he would like staying access with the triplets in Shenzhen he declined citing the crime rate as a reason. The father also proposed staying access during Christmas, Easter and Chinese New Year.

53.  The mother for her part proposed all day access on alternate Sundays, with access otherwise on a Saturday afternoon. When the practicalities of this were queried (e.g. the necessity for the triplets to take a nap etc), she said that the triplets could return to the flat if they needed a nap. Given the fact that the police have been called on a number of occasions when access did not go smoothly and that both mother and father accuse the other of physically assaulting them, this did not seem to be a sensible solution in the circumstances. The mother agreed to alternate public holidays, but was resistant to the idea of staying access at present, suggesting instead that there be a progress report on this issue in nine months time.

54.  In view of the above I am going to order limited staying access on the husband’s undertaking to return the children to Shenzhen at the end of each trip. The father would normally see the children from 3:00 pm, so I will order access from that time, although there must be some allowances made for the triplets own schedule. I will also order a progress report in six months time, whereupon I will consider the issue of holiday access afresh.

Costs

55.  Given the nature of this dispute I think it is accepted by both sides that there should be no order as to costs (see London Borough of Suttons v Davis (Costs) No. 2 [1994] 2 FLR 569).

56.  Consequently I will make an order as follows:

UPON the mother undertaking not to remove the children of the family referred to below out of the jurisdiction of Hong Kong or Shenzhen without leave of the Court.

AND UPON the father undertaking not to remove the children of the family referred to below out of the jurisdiction of Hong Kong or Shenzhen without leave of the Court.

AND UPON the father and mother agreeing to provide the other with a telephone number, in order that each may contact the other from time to time on issues relating to the children.

IT IS ORDERED THAT:

1)  Sole custody and care and control of the three children of the family namely PPY, a girl born on the 16 May 2007, PPK, a girl born on the 16 May 2007 and PPY, a girl born on the 16 May 2007 be to the mother with defined access to the father as follows:

a.  Access on every Sunday afternoon from 3:00 pm – 6:00 pm commencing on the 17 May apart from the first weekend in every month as set out in b) below.

b.  Staying access on Saturday night on the first weekend of every month from 3:00 pm on Saturday until 7:00 pm on Sunday commencing on the 6 June 2009.

c.  Access on single public holidays to be alternated. The father shall have access on the 28 May and 1 October. The children shall remain with their mother on the 1 July 2009.Access shall be from 3:00 pm – 6:00 pm.

d.  The children are to be picked up and dropped off at the lobby of the Shenzhen flat by the father with the assistance of his siblings.

e.  Further access by agreement between the parties.

2)  A progress report to be called for in 6 months time.

3)  There shall be no order as to costs.