LSP v. CHT

FCMC 3538/2023

[2026] HKFC 98

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO.3538 OF 2023

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J U D G M E N T
(Care and Control & Access; Schooling)

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Introduction

1.  This is a trial concerning three summonses taken out by the respective parties :-

(1)  the Petitioner Father (“Father”)’s summons dated 24 May 2024 to vary the Respondent Mother (“Mother”)’s access (“Access Summons”);

(2)  the Mother’s summons dated 12 June 2024 to vary care and control to joint care and control (“CC Summons”);

(3)  the Mother’s summons dated 25 July 2024 to clarify and obtain orders as to the arrangement of D’s N-class, school activities and kindergarten (“Schooling Summons”).

2.  At the various hearings leading up to this trial, as well as through discussion during trial, it has been made known to the parties in very clear and precise terms that the scope of this trial is to determine the above three summonses and no more than that. As such, I will not deal with any points made insofar as they relate to other issues such as custody and/or child maintenance. As for the Schooling Summons, it was acknowledged by the parties at an earlier hearing that notwithstanding the application concerns N-class, it is to be treated as the schooling arrangement of the child in going forward including kindergarten arrangement[1].

3.  This case involves one child of the family, namely a girl born in June 2022, currently aged 3 (“D”). When the trial commenced, they are under a joint custody order, with care and control vested in the Father and defined access, including weekly staying access, for D and the Mother. Both parties have at different stages put forward various childcare proposals for the purpose of this trial. I will not repeat them all here; it is sufficient for me to state their latest positions as reflected in their respective opening and closing submissions. For the Father, he seeks to continue with sole care and control and wants to vary the access of the Mother to supervised access. The Mother seeks a week-on-week-off shared care arrangement. As for the Schooling Summons, they each have a preferred choice of kindergarten.

4.  Both parties act in person. It has been described to me by various witnesses, as well as the parties themselves that they are in high conflict and cannot come to agreement in most of the child related issues. It has also been shown to me throughout trial, by paper evidence as well as oral testimonies, that they are eager to prove one another wrong in matters big and small. I shall discuss more as to how this will impact on the welfare of D in going forward.

Relevant Background

5.  The parties married in Hong Kong in March 2020. After marriage, they lived in a self-owned flat. D was born in Hong Kong in June 2022, after which the family moved to a property in Shatin registered in the Mother’s sole name (“FMH”). The paternal grandmother also stayed overnight at the FMH to assist in childcare. It is not in dispute that, as both parties worked during the day, D was primarily cared for during daytime hours by the paternal grandmother, and that the parties took over the care of D after work and on holidays. It is noted that the parties dispute who was the D’s primary caregiver during the marriage[2].

6.  Friction and conflict in the parties’ marriage gradually increased. In February 2023, the Father and the paternal grandmother moved out of the Matrimonial Home. In March 2023, the Father filed a divorce petition on the ground of the Mother’s unreasonable behaviour.

7.  The Mother was born in Hong Kong in 1987 and was aged 38 at the time of the trial. She was educated in Hong Kong and is a qualified accountant. She works in the investment bank industry, her working hours are Monday to Friday, 8:30am to 5:15pm, with no requirement for overtime or shift work.

8.  The Father was born in Hong Kong in 1988 and was aged 37 at the time of the trial. The Father has been working for the government since 2015. According to him, since D was born he accepted a lower salary to secure a more stable work schedule without having to work on shifts in order to have more flexibility to care for D. His working hours are Monday to Friday, 8:45am to 5:33pm. The Father now resides with the paternal grandmother and D at a rented abode in Fanling, New Territories (“Fanling Residence”). From November 2024, the Father has employed a domestic helper to assist with housework and to care for D.

Procedural History

9.  For ease of reference, I shall recite the relevant orders here.

10.  On 12 June 2023, DDJ J. Cheung (as she then was)  made an order that :-

(1)  The Mother do have interim access for every Saturday and Sunday from 9am to 6pm;

(2)  The Mother to pick up D at the Fanling Residence;

(3)  Video access for 30 minutes between 6pm and 6:30pm during Monday to Friday.

11.  On 23 June 2023, upon an application by the Father, DDJ J. Cheung made an order that the Father to have the interim care and control of D.

12.  On 4 January 2024, upon an application by the Mother, DDJ J. Cheung made an order that :-

(1)  the parties do have joint custody of D;

(2)  the Father do have care and control of D;

(3)  the Mother do have defined access:-

i.  Once per week on a weekday, daytime access not exceeding three hours each time, with the specific dates and times to be agreed between the parties;

ii.  Overnight access on the first and third Friday of every month from after 3:00pm (or after school pickup if D is attending school)  until 6:00pm on the following Sunday;

iii.  On weeks without overnight access, daytime access every Saturday from 9:00am to 6:00pm, totalling nine hours. If the month has a fifth Saturday, the Mother shall have daytime access on that fifth Saturday;

iv.  The handover location for access shall be Fanling MTR Station, with the specific spot to be agreed between the parties.

13.  On 25 April 2024, the defined access orders were varied as follows:-

(1)  Daytime access

i.  Once per week on a weekday (public holidays excluded), every Thursday from 4:30pm to 7:30pm, for daytime access not exceeding 3 hours each time. The specific dates and times shall be agreed between the parties.

ii.  If Thursday is a single-day public holiday and overlaps with the date under paragraph i. above, the daytime access for that week shall be rescheduled to Wednesday, with the specific date and time to be agreed between the parties.

iii.  If there is more than one public holiday within the same week, the access visit for that week (i.e., the visit under paragraph i. above)  shall be cancelled.

iv.  On weeks without overnight access (except for the second week of each month), daytime access shall take place every Saturday from 9:00am to 6:00pm, not exceeding 9 hours. If the month has a fifth Saturday, the Mother shall have the daytime access on that fifth Saturday.

(2)  Overnight access

i.  Overnight access on the first and third Friday of every month from after 3:00pm (or after school pickup if D is attending school)  until 6:00pm on Sunday.

ii.  The handover location for access shall be the lobby of the Father’s residence. The specific spot shall be agreed between the parties.

14.  Three Social Investigation Reports (SIR), as well as a government Clinical Psychologist (CP)  report were called for. For the CP report, it was sought upon the confirmation by the respective parties that they are willing to undergo psychological assessment, and that the scope of the CP report was to cover (a)  a psychological assessment of each of the parent, including if any or both of them exhibit(s)  any psychological symptoms or problems; (b)  whether such psychological symptoms or problems (if any)  will affect (i)  their ability as a parent who has care of D now or in the long run; (ii)  the development of the relationship between D and each of the parent; and (iii)  the upbringing and the welfare of D generally; and (c)  whether psychotherapy is recommended.

MDCC History

15.  There were multiple incidents with cross-allegations between the parties on inappropriate childcare, with more than one occasion where the parties resorted to call the police. While I have considered them in my analysis in this Judgment, I will not list them all out. I list out those incidents that proceeded to a Multi-disciplinary Case Conference (MDCC)  with reference to the background as stated in the agreed chronology of events signed by the parties on 4 September 2025, as well as from the various SIRs. At the beginning of the trial, the mother has attempted to adduce the MDCC documents by attaching the same in her Opening Submission. As I have explained to the parties, there was no permission from the court to adduce new documents, and the MDCC documents are dated before their consolidated affirmation (which should have been the proper occasion for the parties to adduce those MDCC documents, if they had wished do). Therefore, as I have told the parties during trial, I will not consider those documents.

1^st MDCC – June 2023

16.  On 17 June 2023, the Father called the police alleging that D had not been returned to the Fanling Residence at 6:00pm in accordance with the Court order dated 12 June 2023 and that the Mother was uncontactable. The Father alleged that when police later located them, D was found to have a fever and bruising on her forehead and was taken to hospital.

17.  On 18 June 2023, the Mother reported to the police, claiming that she was unable to see D according to Court order.  The Mother claimed that she had been waiting and was fully prepared for the handover at the scheduled time.

18.  Between 17 June 2023 and 20 June 2023, D was hospitalised for treatment, during which a MDCC was held. According to what was recorded in the 1^st SIR, MDCC was initiated because the parties both alleged that the other party had physically abused D, and because the parties had continuous dispute on parties’ visiting hours and arrangement for hospital discharge.  

19.  On 30 June 2023, MDCC concluded that suspicion of child abuse was not established, however it was of the view that if parties’ un-cooperativeness and dispute continues, the well-being of D will suffer and the risk of abuse was considered relatively high, and hence monitoring of the parties through professional help was found necessary[3].

20.  As a result of this incident, D ended up staying at a hospital for 14 days between 17 and 30 June 2023.

2^nd MDCC – August 2024

21.  On 24 August 2024, the Father discovered that D’s front tooth was broken. The Father suspected that D was abused or neglected by the Mother during daytime access, so he reported to the police as well as admitting D to hospital. A MDCC took place on 10 September 2024 and concluded that it was not a case of abuse or neglect, with risk of abuse/neglect to be relatively low. However, the persistent un-cooperativeness of the parents, as well as their over-reactions to the daily care matters of D, poses a risk to causing emotional suffering/abuse of D in going forward. Professional help continues to be recommended to the parties, as well as alerting the parties the possible consideration of the statutory intervention of the Social Welfare Department (SWD)  for various care / protection / residence orders in protection of D’s best interests[4].   

22.  The MDCC considered the then care arrangement of D and maintained the same as ordered, namely D would return to the care of the Father with defined access for the Mother.

23.  As a result of this incident, D stayed at a hospital for a total of 18 days between 24 August 2024 and 10 September 2024.

3^rd MDCC – June 2025

24.  On 22 June 2025, the Father reported to the police, claiming that D’s two front teeth were fractured, with swollen gums and obvious exposed fragments, resulting in severe oral trauma. D was sent to the Accident & Emergency Department for examination and diagnosis. A MDCC was held on 11 July 2025 and it was concluded inter alia that this was already the third time there has been physical injury discovered shortly after the Mother’s access times; to that, the Mother did not provide explanations to the MDCC. There exist some worries as to the level of care provided to safeguard D’s safety during access. The MDCC recommended, like before, professional units to intervene and to provide relevant services to the parties, especially noting that they are hotly disputing D’s matters through court proceedings.

25.  By that time, the latest SIR dated 20 June 2025 for this trial was already prepared by Madam Cham. Madam Cham has since left her post. Thus, by the direction of the Court dated 3 July 2025, a Madam Law from the SWD provided a memo dated 31 July 2025 to notify the Court of the result of the said MDCC[5]. Both Madam Cham and Madam Law came to Court at this trial to give evidence and I shall deal with their evidence in more details later on. Suffice to say here that, after the 3^rd MDCC, the Father was recommended to continue exercising his care and control over D, with relevant professional assistance provided/referred to the parties to assist the situation.   

26.  Between 22 June 2025 to 16 July 2025, D stayed at a hospital for a total of 25 days as a result of this incident.

27.  By the time this trial took place, the parties jointly and/or severally engaged the following professional resources insofar as matters relating to D are concerned :-

(1)  Caritas Fanling Integrated Family Service Centre;

(2)  Tung Wah Group of Hospitals (TWGH)  Heart of Home – Child Protection Support Service;

(3)  Social Welfare Department Family and Child Protective (Tai Po & North District);

(4)  "Parent-Child Link" Specialised Co-parenting Support Centre; and

(5)  The Hong Kong Catholic Marriage Advisory Council KID First Specialised Co-parenting Support Centre.

Applicable Legal Principles

28.  When considering issues on custody, care and control and access of a child, one should refer to section 19 of the Matrimonial Proceedings and Property Ordinance (Cap.192)  :-

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

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

(b)  where such proceedings are dismissed after the beginning of the trial, either forthwith or within a reasonable period after the dismissal;

and in any case in which the court has power by virtue of this subsection to make an order in respect of a child it may instead, if it thinks fit, direct that proper proceedings be taken for making the child a ward of court.

29.  The legal principles governing applications for orders for custody, care and control and access of children are set out in section 3 of the Guardianship of Minors Ordinance (Cap. 13)  :-

(1)  In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property—

(a)  in any proceedings before any court (whether or not a court as defined in section 2)  the court—

(i)  shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to—  (Amended 1 of 2012 s. 4)

(A)  the views of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and (Amended 1 of 2012 s. 4)

(B)  any material information including any report of the Director of Social Welfare available to the court at the hearing; and

(ii)  shall not take into consideration whether, from any other point of view, the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father; (Replaced 69 of 1982 s. 2)

(b)  except where paragraph (c)  applies, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other; (Amended 17 of 1993 s. 19)

30.  It is clear from the above statues that in deciding a child’s custody, care and control and access arrangement, the paramount consideration is the child’s best interest. In considering the best interest of the child, apart from the evidence of the parent, the court will also consider other relevant and crucial documents, such as SIRs and the CP reports. 

31.  In other commonwealth jurisdictions such as England and Australia, the courts would consider statutory checklists when dealing with children’s cases. While there are no such statutory checklists in Hong Kong, the Law Reform Commission of Hong Kong has published a report on “Child Custody and Access” in March 2005 in which it has recommended the introduction of a statutory checklist to assist judges in exercising their discretion based on the relevant statutes of England and Australia.  The recommended statutory checklist includes the following :-

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

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

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

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

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

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

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

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

(9)  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; 

(10)  (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;

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

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

32.  Although the above checklist has not been formally adopted in Hong Kong, the Court widely accepts and adopts the said checklist in determining what kind of arrangement can best safeguard the best interests of the child. However, since the factual context of each case varies, not all items on the checklist will necessarily apply to every case. In any particular case, the Court may not discuss every point listed above. Instead, the Court will only consider the factors set out in the checklist in relation to the facts of this case where they are relevant and applicable, in order to determine which arrangement best serves the best interests of the child in this case. See H v N [2012] 5 HKLRD 498 (at §29-31), approved by ZJ v XWN [2018] 3 HKLRD 644 (at §25).

33.  It is trite that for variation applications, the Court will consider whether or not there exists any material change of circumstances. In children cases, the Court will consider all relevant circumstances bearing in mind the best interests of the child as paramount consideration. 

34.  The Court may grant a combination of custody orders. For example, joint custody and joint care and control, sole custody to one parent and shared care (as submitted by the Mother), as well as joint custody and shared care. It is also possible to make an order for joint custody and to be silent on care and control/access/shared care: SKP v Y, ITT (FCMC17772/2011, unrep., 12/11/2012)  (at §19).

35.  In S, V v M, S [2021] 1 HKLRD 210 (at §17), HHJ Melloy summarised the legal principles of shared care:

“17. The parties have both produced a number of different cases for the court's consideration including the Court of Appeal's decision in PD v KWW (Child: Joint Custody)  [2010] 4 HKLRD 191. Reference should also be made to a case produced by Ms Anita Yip S.C. for the mother, namely PJM v GPN FCMC 4999 of 2014 [2018] HKFC 65 (2 May 2018). In that case I made an order for shared care, and in doing so commented as follows:

13. Given that the parties are agreed that they shall have joint custody I intend in this judgment to concentrate on the terms care and control and shared care. I touched upon this in SEB v ZX (Custody)  [2007] HKFLR 165 and in SKP v Y, ITT (Legal Terminology to be Used in Relation to Children's Arrangements)  [2012] HKFLR 422. In the latter I said as follows when discussing the concept of joint care and control and shared care:

‘Joint care and control

21. Consequently, joint care and control denotes a situation where the parties are sharing the day to day practicalities of raising a child. It will normally mean that the child is spending significant periods of time with both parents in each of their homes, but not necessarily on a 50:50 basis. However, the time shared is likely to be more significant than in a standard custody/access type order and will probably mean that the child is spending at least 35% of his time based with each of his parents. One would expect that both parents are involved in the schooling and extracurricular activity schedule and it normally denotes a high level of co-operation between the parents. Consequently, one would normally expect an order for joint custody and joint care and control to be made by consent. In the language of the social scientists an order for joint custody and joint care and control would probably be reflective of a cooperative co-parenting scenario.

So how does this compare with the concept of shared care?

22. The concept of shared care as an alternative to joint care and control has developed over time. I referred to this recently in a case that may be going on appeal and is presently unreported namely TAC v VDC nee VDM FCMC 16497/2010. In that case I referred to H v H (unreported, 6 September 2002, CACV 42 of 2002, where the Court of Appeal first upheld an order for shared care. This judgment has been referred to by counsel for the father in this hearing. What is interesting is that in that case an order was made for sole custody and shared care. This approach was then followed by myself in SEB v ZX (Custody)  [2007] HKFLR 165 referred to above and more recently in RWS v KCC, FCMC 9661 of 2010 unreported. In each of these cases and for a variety of different reasons it was felt appropriate for the ultimate decision making power to vest in only one parent. Thus orders were made for sole custody. However, the court was anxious to ensure that the child/ren involved should continue to spend significant amounts of time with both parents in a way that was more reminiscent of a joint care and control order. In order to recognise this and the fact that the non-custodial parent continues to have a great deal of practical control in the child's day to day life, the phrase shared care was coined. Again in social science terms this is perhaps more reflective of a parallel parenting regime i.e. where there is a very high level of conflict between the parents which makes cooperative co-parenting virtually impossible, but where it is in the child/ren’s best interests to spend significant periods of time with both parents. It would be normal in a situation like that to set out very clearly how the child/ren's time is to be split between both parents. There is no order for access per se.I made such an order in RWS v KCC, FCMC 9661 of 2010 commenting as I did that:

I have given a great deal of thought to the appropriate order to be made in this case. As I have said it is not possible for me to make a "parallel parenting" order as such. However, I would like to make an order that supports the concept of parallel parenting. Consequently, it seems to me that it would be more appropriate to make an order for shared care as opposed to a traditional order for care and control and access. This will make no difference at all to the practical arrangements that I intend to put in place. They would have been the same in either event. However, the concept of shared care seems to me to echo that of parallel parenting and I would urge the parties to adopt that approach....... I will therefore make an order for shared care, following the format of the order in H v H i.e. that the care of the children shall be shared between the parents as follows...”

36.  The Court is not required to consider each and every point raised during a trial. It is not incumbent on the judge to elaborate or extend judgments by making findings on every area or every issue, and it is open to a judge to confine him or herself to those matters which he or she selects as significant and necessary: Re F (Shared Residence Order) [2003] EWCA Civ 592 per Thorpe LJ.

37.  The authorities cited by the respective parties all demonstrate the same set of general legal principles concerning children and having considered them, I shall not repeat here. I remind myself that I shall be guided by the above legal principles in my analysis below.

Issues

38.  The parties did not file a joint list of issues. On the other hand, despite the clearest explanation from the Court at all material times as to the scope of this trial, I note the Father in his closing submissions was still advocating for a sole custody order, and amongst other things, financial orders for D. In passing, I should say that the parties saw fit to argue at trial as to whether the page limits to their submissions could or could not include case law to be cited. I recall that the Father felt unfair that the Mother went beyond the page limit for her opening submission by citing a few cases. After some explaining, I allowed the Father to cite more cases to rebut the Mother’s cases, if he so wished, in his closing submission. Suffice for me to say that I have considered all the authorities cited by the parties. I state here again, to remove any misunderstanding from the parties they may have, that this Judgment shall focus with the three summonses only, i.e. care and control, access, and schooling of D. On that note, it is my view that the issues for this trial are as follows :-

(1)  Bearing in mind of the joint custody order in place, what care arrangement orders would best assist the parties to move forward with D, given D’s age and prevailing childcare needs? Or to put simply, what is the best childcare arrangement that will reflect the best interests of D?

(2)  Once (1)  is resolved, the Court will look at what labelling would best reflect such arrangement, again bearing in mind the best interests principle.

(3)  And finally, which kindergarten D should attend, bearing in mind all circumstances and her best interests?

Open proposals

Mother’s proposal

Care and control

39.  The parties shall have joint care and control.

Access arrangements

40.  The Mother has alleged that to minimise handovers and to ensure overnight access with D, and taking into account that travel time between the parents’ residences is less than 20 minutes, it is proposed that the access arrangements be updated as follows :-

(1)  Care Arrangement Option One – Immediate Implementation of a Two-Week Rotating System as follows:-

i.  The mother shall have care from the first Sunday at 8:00 p.m. to the following Sunday at 8:00 p.m.

ii.  The father shall have care from the second Sunday at 8:00 p.m. to the following Sunday at 8:00 p.m.

iii.  The non-overnight parent shall have access on Thursdays from after school until 8:00 p.m.

(2)  Care Arrangement Option Two – Transitional Arrangement For the first 12 months: The mother shall have overnight access as follows:-

i.  On the first and third weeks of each month: from Friday at 2:00 p.m. (or after school)  to Monday at 8:00 a.m. (or before school);

ii.  On other weekends (excluding the second week of the month from Friday to Sunday): from Friday at 2:00 p.m. (or after school)  to Sunday at 8:00 a.m.;

iii.  Every Thursday from 2:00 p.m. (or after school)  to 8:00 p.m.

iv.  After the initial 12-month period, the care arrangement shall transition to the two-week rotating system set out in paragraph 5(a)  above.

41.  If any access period is cancelled or reduced for any reason, the lost time must be compensated within three (3)  months by providing access of equivalent duration.

Handover

42.  Handovers shall take place at D’s school (on school days)  or at the MTR station nearest to the overnight parent’s residence (on non-school days).

School and Medical matter

43.  Both the father and mother shall be designated as contact persons for D’s school and medical institutions. Both parents shall have the right to access all school and medical information regarding D and may participate in all school and medical matters at any time.

44.  Arrangements for D’s medical check-ups, diagnosis, treatment, and hospitalisation shall not be restricted by the regular access schedule. Both parents may jointly accompany D for any medical examinations, diagnoses, or treatments at any time. In the event of hospitalisation, the parents shall alternate on a one-parent-per-day basis to care for and accompany D.

45.  Both parents may jointly participate in school-organised activities and/or parent days. Where an activity allows only one parent slot, the parents shall alternate attendance on a one-time-each basis.

Holidays

46.  The Mother has separated access proposals for different holidays as below :-

(1)  School holidays

i.  School Holidays School holidays shall be allocated with reference to the current court-ordered arrangement for public holidays, on a one-parent-half basis with overnight stays.

1.  For school holidays spanning more than one day, the holiday shall be divided equally between the parents with overnight arrangements. The first half shall commence at 8:00 a.m. (or after school dismissal), and the second half shall commence at 2:00 p.m. (if the holiday falls on an odd number of days)  or 8:00 p.m. (if on an even number of days).

2.  For single-day school holidays, the parents shall alternate on a one-parent-per-day basis from 8:00 a.m. to 8:00 p.m. In odd-numbered years, the father shall have priority for the first half of the holidays and the first rotating single-day holidays, with the mother receiving the remainder. In even-numbered years, the arrangement shall be reversed.

(2)  Special occasions

i.  Lunar New Year:

1.  Father: Lunar New Year’s Eve from 8:00 a.m. to the 2^nd day of the Lunar New Year at 2:00 p.m.

2.  Mother: 2^nd day of the Lunar New Year from 2:00 p.m. to the 4^th day at 8:00 p.m.

ii.  Christmas:

1.  Father: 24 December from 8:00 a.m. to 25 December at 2:00 p.m.

2.  Mother: 25 December from 2:00 p.m. to 26 December at 8:00 p.m.

iii.  Mid-Autumn Festival:

1.  Father (in odd-numbered years);or

2.  Mother (in even-numbered years).

iv.  Winter Solstice:

1.  Father (in odd-numbered years); or Mother (in even-numbered years). The period shall be from 2:00 p.m. (or after school dismissal)  to 8:00 a.m. the following day (or before school). If the following day is a school day, the parent having care during this period shall be responsible for sending D to school.

47.  Travel out of the jurisdiction: The existing court order dated 25 April 2024 permitting D to leave Hong Kong[6] shall remain in force.

48.  For schooling arrangements, the Mother prefers D to attend Po Leung Kuk Mrs Vicwood KT Chong Kindergarten (“KTCK”).

Father’s proposal

49.  The Father confirmed during trial that he wishes to seek for D’s sole care and control, with access for the Mother as follows :-

Care and control

50.  The Father confirmed that sole care and control of the child shall be vested with the Father and D shall continue to reside at the Father’s residence in Fanling.

Access

51.  The Mother shall have supervised access once per week at an approved centre for a duration of no more than two (2)  hours. Following a risk assessment and completion of specified courses, this may be varied to unsupervised access on the second and fourth weekends of each month (Saturday and Sunday daytime), with all weekday (Monday to Friday)  access cancelled.

Handover

52.  Handovers shall continue to take place at the shopping mall of the residential estate where D lives (which he alleged was similarly recommended in the three social welfare reports). This location is equipped with CCTV surveillance, which helps reduce the risk of disputes during handover.

School and medical matters

53.  The Father asks for D to continue her studies at her current school, New Territories Women & Children’s Welfare Association Fanling Nursery School (“FNS”). The Father shall be the primary and sole contact person for the school. All medical follow-up appointments shall be arranged and confirmed in writing by the Father, with the Mother notified accordingly. The Mother may attend such appointments but shall not unilaterally cancel or reschedule them. Neither party shall alter or remove the other party’s details as an emergency contact in hospital, school, or government records.

Identity and travel documents

54.  All identity and travel documents of the child (including birth certificate, Hong Kong Identity Card, Home Return Permit, passport, student card, and admission documents)  shall be held by the Father. Should the mother require any of these documents, she must provide written notice at least seven (7)  working days in advance, together with the proposed itinerary. The Father shall hand over the documents at the time of handover and they shall be returned immediately upon completion of the trip.

Evidence

55.  There were 5 witnesses at this trial and they testified in this order:

(1)  The Government CP Dr. Qin;

(2)  SIO Madam Cham;

(3)  SIO Madam Law;

(4)  The Father; and

(5)  The Mother.

56.  SIO Madam Sze who prepared the first SIR dated 20 October 2023 was not required to attend Court by the agreement of the parties. The parties agreed to include her SIR in the trial bundle as evidence for the purpose of this trial.

SIO Madam Sze’s SIR dated 20 October 2023

57.  Ms. Sze stated her observations of both the Father and the Mother, as well as the paternal and maternal grandparents’ communication with D. She is of the view that D maintains a good relationship with both the Mother, Father and the paternal and maternal grandparents. As for her recommendation on the issue of care and control, she recommends for the Father to have the sole care and control of D and the Mother to have defined access as the following :-

(1)  Once per weekday per week, daytime access not exceeding three hours each time, with the specific dates and times to be agreed between the parties;

(2)  Overnight access on the first and third Saturday of every month from 9am on Saturday to 6pm on the following Sunday;

(3)  On weeks without overnight access, daytime access on Saturday from 9am to 6pm, totalling 9 hours;

(4)  For public holidays such as Christmas, Lunar New Year and Easter, each party shall have half of the holiday period for access. If the access period exceeds one day, it shall be overnight access. The specific dates and times shall be agreed between the parties;

(5)  The handover location for access shall be at the shopping mall of the Father’s residential estate or a nearby location, with the specific venue to be agreed between the parties; and

(6)  If difficulties arise in coordinating access, the parties shall make use of the parenting coordination service provided by the "Parent-Child Link" Specialised Co-parenting Support Centre.

58.  I see the relevance of this report limited to providing me with the background of this family, by reason that the date of this report preceded the three Summonses in issue. I will not place much weight on the content of this report and will focus on Madam Cham’s SIRs instead.

Dr. Qin

59.  Dr. Qin assessed that neither the Mother nor the Father exhibited significant psychological symptoms or psychopathology that would fall under the category of mental health disorder. In simple words, clinically speaking, the respective parents are fine. However, she observed that both parents displayed significant defensiveness with underlying psychological strains. While she testified that each parent’s individual parenting ability is not an issue, they tend to rely on external authority when it comes to communication with each other. She agrees that while these disagreements between the parents will sometimes lead to deadlines of the child’s matters being missed, and thereby hindering the child’s welfare. When she was asked whether there is room for improvement for each parent in this respect, i.e. their ability to communicate and co-parent, she testified in the positive for both parties and said it is worth trying.

60.  Dr. Qin also observed that as ‘new parents’, each party has done well individually and impressed upon her to be very loving to D. The Father would carefully monitor D’s physical needs, as well as engaging his extended family for appropriate family activities; the Mother encourages D to participate in more outdoor activities for D to explore and learn through these activities, and gave an example that if D fell on the ground, the Mother would encourage D to learn how to get back up on her own. Dr. Qin views the parents have their respective contributions to D in this respect, albeit in different styles.

61.  Dr. Qin also appreciates that due to the ongoing legal battles in these proceedings, it makes the parents being more defensive against one another, in fear of ‘being attacked’ by each other and thereby making it difficult for them to agree on matters. She believes that the parent with care and control can make decisions on smaller matters and that would provide more clarity.

62.  On access, Dr. Qin views that given D’s young age, she could not make sense of access related matters, or if an access is missed for whatever reasons. At this stage, the parental conflicts may not have directly impacted on D but in the longer run, the situation may be different when D understands more about the arguments between the parents. 

63.  Dr. Qin has used an example of playing tennis to describe the situation, where it is her assessment that individually speaking, they are found to have no problem in their respective parenting, just like tennis players being capable to play well in singles matches; however when put together in doubles matches, their abilities decrease due to their inability to compromise and support each other.

64.  The Mother asked Dr. Qin whether by the fact that the Father has care and control, he will, in psychology context, then assert his status as an advantage against her. She used the kindergarten enrolment as an example to suggest that as long as care and control is vested in the Father, he will be able to stall all decisions and arrange matters in his own way. Dr. Qin could not find such tendency of the Father in her assessment. 

SIO Madam Cham

65.  Madam Cham prepared a total of two updated SIRs dated 20 January 2025 and 20 June 2025, as well as a memo dated 2 July 2025 for this trial. She is a witness I find to be knowledgeable of this family, in particular, on their multiple ongoing disputes concerning D. Similar with the observation made by Madam Sze in her report, Madam Cham also agrees that D is seen to be interacting harmoniously with both the Father and the Mother during interviews. However, she has also pointed out a number of incidents of conflicts between the parties, and their allegations against each other. She has also cited the words of other social workers who noted that during co-parenting sessions, the parties have strongly maintained their grounds and repeatedly expressed dissatisfaction against one another, and hence no good results were able to be achieved during these co-parenting sessions. Madam Cham observes that they are unable to put aside their hate, anger and doubt against one another and hence are difficult to work together to take care of D.

66.  On care and control, I have invited Madam Cham to consider the Mother’s proposal at trial, namely a week-on-week-off shared care arrangement (or joint care and control as the Mother interchangeably uses). Madam Cham testified that the Mother had mentioned this to her during her investigation but without a concrete plan, for example, the Mother had mentioned she could consider moving to Fanling area also but Madam Cham did not see any actions taken to such effect. She has fully considered the Mother’s proposal and found that stability to D is more important and having one stable residence is better than living substantially in two households week in week out. When I further asked Madam Cham whether there are other factors apart from residential location, she tells me that she has observed the parties to have quite a different way of parenting style towards D and this was also a factor she considers important in rejecting a joint/shared care recommendation. She reaffirms her recommendation for care and control to be vested in the Father.

67.  On access, having known the latest 3^rd MDCC incident, Madam Cham maintains her recommendation in her two reports. She does not view supervised access, as suggested by the Father’s proposal, necessary. As to the Mother’s concern that she does not have enough access time, Madam Cham explains that she considered there have been many disputes under the present arrangement and that she considers less access during weekdays will bring more stability to D in preparation for her future schooling routine. In balancing that, Madam Cham recommends more weekend access for the Mother.

68.  On schooling, apart from stressing stability being an important factor for D’s welfare, Madam Cham testified that it should be made known to the kindergarten, whichever one it may be, who is the first contact person and second contact person. Since the parties have joint custody, the kindergarten will also be responsible to contact both parties on the more major issues, but for more daily routine related matters, Madam Cham suggests that the party with care and control ought to be the first point of contact.

69.  Madam Cham further observes that while the respective parents are fighting for what they believe to be good for D to begin with, as time goes by, they often mix these matters with their own self-interests and ended up losing focus with D’s best interest becoming blurred. She says that from outside looking in, it may seem that the parties are debating various child issues, such as schooling, medical needs, but in the course of these disputes the parties will neglect D’s best interests and ended up taking up arguments one after another against each other.  

70.  When asked on whether a supervision order / progress report would help these parties, Madam Cham testified that while impartial third-party assistance is necessary for these parents, she observed that the parties would take advantage of these support mechanisms if too many are to be provided to them, especially if these services are free of charge. She said that with the current professional services already engaged, it may be counterproductive for a supervision order / progress report to be ordered. She specifically mentioned that considering this family, she believes mediation in the private sector may be more beneficial to the parties. As I understand it, in terms of external support, Madam Cham recommended quality over quantity.

Madam Law

71.  Due to the change of post of Madam Cham, the latest memo regarding the 3^rd MDCC was prepared by SIO Madam Law. It reports that the MDCC committee is of the opinion that the incident was not a case of negligent care, and they are of the view that D’s injury likely happened during the access of the Mother. At the same time, they evaluate that the risk of D being negligently cared for is high with the following risk factors:-

(1)  The tender age of D who cannot effectively protect and express herself;

(2)  This is the third time that D was found injured after the Mother’s access which necessitated investigation of child protection, when the Mother was unable to explain the relevant incident;

(3)  There appears to be doubt as to whether D’s safety can be fully taken care of and whether she can get timely medical care;

(4)  D’s parents are undergoing intense litigation on D’s custody, care and control, which warrants the intervention of relevant professional bodies.

72.  Despite I have told parties that Madam Law’s role at this trial is limited to the two-page memo she prepared for the Court on notifying[7] the Court of the 3^rd MDCC conclusion, the parties nevertheless took the opportunity to put various questions to the witness that goes to the reasoning behind the MDCC decision. In short, Madam Law was not tasked to investigate on this occasion. Thus, most of her answers given were speculative at best, through no fault of her indeed.

The Father

73.  The Father confirmed his open proposal at trial. I have dealt with it above and shall not repeat. He testified that during the times he is at work, his family members will assist in providing childcare to D, which includes his father, his mother, his sister, his brother-in-law. Including the Father’s residence, the paternal family of F resides in three residential units within very close proximity, all connected by a footbridge within minutes. His sister has a son who is one year older than D. The paternal family would regularly meet and spend time together.

74.  Since much of the cross-examination escalated into arguments on numerous single incidents, I do not see it necessary to state them here. I have considered them as a whole. I shall adopt the same approach in considering the Mother’s evidence too. I will only pick out those I believe to be of assistance to the determination of the issues before me.

75.  In gist, the Mother alleges that due to the Father having care and control, the Father abuses this labelling and adopts a high-handed approach on all matters against the Mother. She gives an example of the handover of identity and/or travel documents before and after D travels out of jurisdiction for holidays, the parties each alleges that the other party had made unreasonable requests in the receiving / returning of these documents (e.g. that had to be personally brought to the other’s location, cannot be done through family members, putting them in the mailbox of the Father’s residence etc.). The Mother then alleges that the Father is taking advantage of his care and control status in this context.

76.  On MDCC matters, the Mother says she had visited D every time at the hospital. Of the most recent incident, she denies she was responsible for the injuries and questions the Father that it could have happened after she handed over D to him after access that day. The Father disagreed that the Mother, or in fact himself, had ‘visited’ (探病)  D at hospital, but rather, his own presence was to ‘provide care’ (照顧)  to D, and that the Mother should have avoided contact by reason that she was a suspect of child abuse.

77.  Regarding access handovers, the parties now have selected a public area, namely the shopping mall of the Father’s residential estate, by reason that it is a public place with CCTV cameras nearby, in case disputes arise. While the Mother says she was not aware of D having any injuries during the handover on 22 June 2025, and challenges the Father for now raising his concerns during the handover, she on the other hand alleges that during regular access handovers, the Father would publicly distress D by removing the clothes of D immediately upon handover at the shopping mall to examine for any potential injuries. The Father denies this. This then led to another topic, namely the clothing items of D, where the parties cannot compromise on D wearing the same piece of clothing between the two households and they would often have to change D into ‘their own clothes’ during and after access. These are just some small ripples of the many waves of disagreements between the parties on childcare matters.

78.  On schooling, the Mother alleges that the Father, without approval of the Education Bureau (EDB), illegally enrols D to remain at FNS to take part in K1 curriculum. As a result, the Mother made numerous complaints to the EDB. The Father alleges that the Mother had, without his consent, illegally applied for the Registration Certificate for Kindergarten Admission (“Registration Cert”) and has kept the same in her possession at all times, causing him unable to register D. This of course, in my view, stems from the argument concerning the Schooling Summons where they each have their own preferred choice of kindergarten and therefore not only unwilling to make compromises, they went as far as attacking the credibility of each other.

79.  On long school holidays, since D was at nursery stage, I accept that the pattern of long school holidays can be less clear compared to kindergarten. The Mother challenged the Father for deliberately choosing a kindergarten with less long holidays so as to deprive her time with D. The Father disagrees and said that the current nursery at FNS provided good support during summer and the so-called summer holidays were only about 1.5 weeks long. He chose this kindergarten based on what is best for D.

80.  On first point of contact, the Father testified that if he can be the first contact person, he will share all notices to the Mother so that she has all the rights to attend all school activities.

The Mother

81.  The Mother confirmed her open proposal at trial.  During cross-examination, it was put to her by the Father that due to the high conflict and lack of trust, joint care will not work. The Mother stressed that she is not merely advocating for a labelling, she views by sharing care and control, everything will be more equal and thereby there is no need to fight. She views that given both parties are working parents, and with similar financial abilities, if each parent is responsible for their own week, with Friday after school being the change-over point, then it will no longer be unfair. She hopes to achieve a 50/50 arrangement.

82.  The Mother was cross-examined on the recent MDCC incident on 22 June 2025. She denies having knowledge of D’s injuries. She questions the definitions of D’s injuries are not as the Father had stated, that the Father had exaggerated the same. The Mother says the first time she was able to see D afterwards was on 26 June, a Thursday access, where she spent three hours with D at the hospital, yet when asked to describe the condition of D, the Mother said D was throwing a tantrum and she did not get a chance to ‘catch her face’ to see clearly. The Father took leave from work and stayed ‘24 hours’ at the hospital between 22 and at least up to 26 June. The Mother admitted that by 26 June, she already knew there were allegations from the Father against her. The Mother maintains that it was not until 28 June, Saturday when she went again to the hospital and consulted with the doctor in charge, that she saw the broken tooth fragment inside D’s mouth.

83.  As to what caused D’s tooth injury, the Father suggested it was the maternal grandparents who took D to a park and the Father suspected D got injured there. The Mother denied, saying the maternal grandparents did not take D to a park on 22 June at all. She also said that if D was hurt and had voiced out, then the Mother would notice, but she will not regularly check on D’s status if D did not say anything. The Father further questioned the abilities of the maternal grandparents, saying that during marriage they had repeatedly warned the parties against having D cared for by them. This caused the Father a lack of trust against the maternal grandparents in the routine care of D and this forms the basis (or at least part of)  his objection for the Mother to have longer access when the Mother herself has to go to work.

84.  On the Registration Cert, the Mother explained that she submitted that form based on the then ongoing oral discussion in around July 2024 about K1 admission, and since all their respective preferences are ‘education voucher’ kindergartens, application of the Registration Cert is a necessary procedural step. The Mother therefore understood the Father have agreed to the same and proceeded to fill out the registration form and applied for the same. The Mother said she had notified the Father all these steps and did not hear any adverse comments from him. To this, the Father denied there were discussions nor consensus on the same.

Discussion

85.  To begin with, I must stress to the parties that the focus of this Judgment is to create a routine and life pattern for D so that she has the best chance of enjoying her kindergarten life as a student. For a child of this age, a stress-free environment is the least that one can hope to provide for her. Her innocence towards adult conflicts at this stage of life is a blessing. On the other hand, a child of this age will absorb, mimic, and learn from the adults, primarily from their parents at a fast rate. As D starts to talk, she will also be able to express herself verbally. Very soon, and inevitably, she will start to have her own thoughts which may be different from her parents from time to time.

86.  Despite the large number of evidence all pointing towards a pair of difficult parents, I refuse to be drawn to the easy conclusion that they are hopeless in cooperating with one another and anything between them will be nothing but destructive. Instead, it is my view that the parties themselves are also, like D, learning something new, namely parenting, and that they still have room for improvement. I say this taking into consideration of their respective age, which I consider to be relatively young. With their education background, they are certainly receptive to learning. I note that Dr. Qin also thinks there is room for improvement for the parents. I further note that although the issue of custody is not part of this trial, all the professional witnesses still testified for co-parenting, or when asked on a label, they prefer joint custody. As I have said, I will not determine on the custody labelling and I am bound by the existing joint custody order. On the other hand, that does not mean I should simply turn a blind eye to the evidence relating to custody since, in my view, they are in any event relevant factors for me to consider what actual care arrangements are best for D.

87.  I do not lose sight that Madam Cham had had ample opportunities to deal with the conflicts of the parties. Madam Cham reported that in September 2024 after the 1^st MDCC incident, the Father sent over 60 emails to her, with contents of over 1000 pages of documents, resulting in the overloading of the SIO’s email system; on the other hand, the Mother between a period of 4 days in January 2025, sent over 20 emails and left 14 voice messages to Madam Cham. She also reported that her colleague, a Madam Lam had by then received almost 600 emails from the parties, all about their views on childcare matters of D. Perhaps this is why Madam Cham was able to, quite insightfully in my view, suggest that these parties may benefit from private sector paid services instead of utilising public resources, as they have a tendency to take advantage of these organisations. With respect, I agree. On my part, what I can see from the above is that the parties have not yet learned the simple fact of life: that they, as parents, not others, are the answer to D’s future. Not even the Family Court will turn itself into D’s personal assistant, micro-managing her affairs, or scheduling all the holidays long and short, year after year. These are the responsibilities of the parties, whether or not co-parenting exists.

88.  What I find a little ironic is that, when a little help is offered by the Court, the parties will more or less comply. The example of this is at an earlier case-management hearing on 26 February 2025, through the facilitation of the Court, the parties were able to jointly confirm, and to reduce the same into a preamble of a Court Order, that they (i)  will not make a report to police in respect of access arrangement of D; (ii)  will not take video at the hand-over of D; (iii)  will not make unfound allegations of child abuse of D, causing D to be hospitalised; and (iv)  will not be late for hand-over of D.[8] The ironic part is that, without themselves noticing, it is in fact the parties’ agreement on the above things, that has a more binding effect on themselves. The Court on that occasion did not order these terms – they were agreed by the parties.

89.  With the exception of the 3^rd MDCC, which in my view was justified under the circumstances, the parties more or less were agreeable to be bound by these terms. I was told that the parties more or less abided by these agreements since.

90.  In my assessment, I have no reason to doubt the evidence of Dr. Qin and/or Madam Cham insofar as they suggest that there is still room for co-parenting for the parties, notwithstanding the parties’ rather confrontational way of communication so far. I encourage the parties to move on from their current style of resolution methods for D, as I agree with the professionals that as much as one spends all that time to find out who was the more righteous party between the Father and the Mother, D’s affairs would have moved onto the next stage which requires more resolution from the parents. Schooling may be an appropriate example here. It has been stressed to me that due to their own beliefs in their version of events, as well as sticking to their choice, it remains a fact that D is not properly enrolled to K1. My view is that, when the Court’s focus is on D, it matters not which parent was more ‘in the right’ or the other one more ‘in the wrong’. On this K1 saga, I view that both parents could do better.

91.  With my preliminary findings above, I have faith in the Mother in conducting access in a more measured manner. For the latest MDCC incident, I do not accept the Mother’s explanation regarding how she could not observe the injuries of D. D was injured, this much is clear. I accept the MDCC findings as reported by Madam Law in its entirety. However, this does not mean I have anything against the Mother. Taking the findings to the highest, and coupled with what the Father testified at trial when asked if he believed the Mother and/or her parents would intend any harm to D, the Father’s worries are the lack of safety measures provided to D during access. There was never any allegation that the Mother or the maternal grandparents would intentionally harm D.

92.  The Mother told me in evidence that, of the follow up services provided by the MDCC, they would educate D to take better care of herself when, for example, playing at a park. Thus, it is my view that the safety issue of D in this regard is transitional, when very soon D will learn to speak more, as well as to exercise better self-care. I find that despite the injuries suffered by D were serious on this occasion, there were no malice at all times from the Mother.

93.  I also take on board what Dr. Qin has observed insofar as the parties’ different styles of parenting where the Mother likes to allow more freedom for D to explore the physical world when compared to the Father who is more on the protective side. Again, these are personalities and there is no right or wrong between the parents. I think that the parents should relish their differences in trusting that D could get the best of both worlds.

94.  Having considered the above as well as taking all the evidence as a whole, I do not view that supervised access at this stage is necessary. I trust the Mother could handle regular weekend staying access as they current are in place without supervision. I note that Madam Cham did not recommend supervised access too but since both her reports precede the 3^rd MDCC incident, I do not place much weight to her recommendation on access in that regard as I understand the Father’s case on access rests heavily on the 3^rd MDCC incident, although he also relies on other historical incidents to say that D is not safe under the Mother’s care. For the sake of completeness, I have not only considered the more recent incidents but all the incidents as a whole in finding that the Mother has the ability to conduct unsupervised access, including staying access, under the present circumstances.  

Joint/shared care?

95.  On the other end of the spectrum is the Mother’s case of shared/joint care. It is best that I deal with it at this juncture.

96.  I do not accept a week-on-week-off arrangement, or any arrangement reflecting a 50/50 split of care time, is congruent with the best interests of D in this case. My reasons are as follows :-

(i)  Albeit the child is young, her childcare history is still relevant. She has been cared for under the Father for some time now. There is no argument before me that, for instance, the status quo maintained was artificially engineered for litigation advantage. I can see that the Father has dedicated most, if not all, of his free time caring for D and sorting out her affairs;

(ii)  By comparison, the Father has a better family support within the vicinity. His parents, as well as his sister’s family, who includes a cousin of D of similar age, will all help to build a sense of security for D under a stable living environment. It seems to me that the Father is familiar with the Fanling area with his family members living nearby and I accept that they are a close-knit family with regular gatherings. This also tells me that the chance of D moving around to different areas would be objectively low at this stage;

(iii)  Taking into account of the different parenting styles, this is not a case appropriate for any shared care arrangement. As Madam Cham described in her evidence, D would be treated like a ball, being bounced back and forth between the two households. For me, while each case turns on its own facts, for this family, at this stage given D’s age, I would not support any form of joint/shared care as a matter of principle;

(iv)  I take into account of the fact that the Mother has been exercising staying access for some time. I am also minded to continue ordering staying access for the Mother during the weekends. This means that, as the Mother has also cited case law on this, the parent who has access with the child essentially is exercising some form of care and control to the child during that time. I agree that, labelling aside, so long as the Mother has staying access which enables her to focus on planning more activities with D and enjoy quality times regularly, the meaning of the label ‘joint/shared care’ becomes less significant;

(v)  Conversely, the Mother repeatedly stressed in her evidence that she wishes to achieve ‘fairness’ by splitting the care of D. She believes she is in a disadvantageous position under the current arrangement when the Father has care and control. I have fully considered this argument. As much as I also wish the Mother to feel more ‘fair’, I must say that the Mother has unfortunately started on the wrong premise here when the child arrangement to be considered by me is based on the what is best for D – it does not mean that the child arrangement has to be fair from the perspective of the parent, not to mention fair would mean half. Again, I do not go as far to suggest that the Mother is litigating based on self-interest. I do believe she is trying to find a way to end all the ongoing conflicts and that she genuinely believes that by splitting D’s rights and responsibilities in half, including finance, things will improve. With respect, that is not a correct belief and I hope the Mother can now see why it is not. D’s best interest must be of paramount importance at all times.

What is the best arrangement?

97.  Although it is never the hope of the Court for the parties to return to litigation, on the other hand, it is difficult for me to make a final order for the care arrangement of a 3-year-old with the expectation that it will last till she reaches 18. I can only do my best to reasonably foresee what the major challenges will be in going forward and hope to provide some finality for at least a reasonably foreseeable period of time. This is the reality. For this case, I remind myself that the best interest of D lies in having a stable and stress-free environment so that she can fully enjoy her kindergarten years. I am aware that by the time of this Judgment she will be eligible to K2 in the summer of 2026. This means that there are two full kindergarten years to look ahead. Neither party has addressed me on primary schooling and that maybe a pre-mature topic just when the choice of kindergarten is yet to be resolved.

98.  In my view, two years is a substantial period of time in the circumstances and the parties ought to make good use of this period to settle down in providing a happy and stable pattern for D to further excel. Having considered all the evidence before me, including and not limited to the professional views and the SIR recommendations, I am of the view it is in D’s best interest for her to remain in the sole care and control of the Father so that the Father can focus on her school related responsibilities; whereas I will order staying access for the Mother on a two-week rotation basis:

(i)  Week 1: From Friday after school (or 4:30pm if no school)  to Sunday 6pm;

(ii)  Week 2: From Friday after school (or 4:30pm if no school)  to Saturday 6pm;

(iii)  There will be no weekday day access;

(iv)  Long school holidays and single school/public holidays to be equally split; and

(v)  Special occasions to be shared equally in principle. 

99.  By adopting a two-week rotation in this particular case, I hope it will resolve some of the historic disputes regarding, for example, when is the start of the month, or when a calendar month has five weekends etc. These points will be irrelevant when adopting a two-week rotation schedule.

100.  I have provided more time for the Mother during the weekends by reason that the Mother needs to learn how to fully utilise her regular access times to engage in a full range of activities with D. For a mother who is willing to take up half of D’s care in proposing the same, I see that this is a mother who will not shy away from parental responsibility. Despite the labelling, I do not see this result equating to the Mother being ‘an access parent’. By having a full ‘3-day-2-night’ on week 1, there are ample things the Mother can do with D, or even to go on a short trip nearby. Similarly, by having a ‘2-day-1-night’ access on week 2, the Mother can instil a pattern for D so that D will feel happy and safe knowing that on weekends generally, the Mother will spend happy times with her under the Mother’s care.

101.  I further take into account of D’s age and that kindergarten stage will not be academically demanding in general. This means that, be it weekdays at evenings with the Father, or weekend with the Mother, D (as well as the parties)  will be stress-free from school matters.

102.  For the Father, he is entrusted with the important framework to set out a good routine for D. He has his weeknights uninterrupted. I believe this is important to him as he testified that under the current access arrangement where during daytime access D is only able to go home after 7:30pm, which is 1.5 hour after her usual dinner time and close to her bedtime. He believes the current weekday access arrangement is disruptive to D’s rest. The Father says that D does not have much energy while she has her dinner and suffers from having eye-bags just at the age of 3. I agree with the Father that a strict routine may benefit D at her age.

103.  In addition to the uninterrupted weekdays, the Father has the weekends on week 2 to engage in family activities as well as a full-day activities on Sunday. In my view this is the best arrangement for D at least up to her primary school enrolment years.

104.  I have deliberately not prescribed much details on the exact logistics of the holidays arrangements. This is because (i)  knowing that the parties are being supported by a range of professional services already, in case they are in disagreements they have ample support; and (ii)  I want the parents to learn how to resolve simple matters, like sharing a holiday with each other, by working it out through themselves. The Mother throughout trial has in fact advocated for joint custody and wanted to demonstrate that the parties can still co-operate. All the professional witnesses have not given up on the parties by certifying them as unworkable. They all think there is still room for improvement. I also take the same view and I hope that by setting out clear boundaries and division of labour in this context, the parties can each focus on their respective important roles. 

Labelling

105.  In my view, legal labelling should only be the result of the actual arrangement, as opposed to be something for litigation per se. By the above, I find that the Father do have sole care and control of D with the Mother having defined access of D, including staying access in the manner as set out above.

Other Care and Control related matters

106.  For clarity, I expect the confirmation given under Recital D of the Order dated 26 February 2025 to continue.

107.  The Father promised at trial that should he become the first contact person of the kindergarten to be selected, he will provide all notices to the Mother and gives the Mother all the rights to participate in all parent-child activities arranged by the kindergarten. By my order that the Father is responsible for the daily care and control of D, he shall also be the first contact person of the kindergarten to be attended by D.

108.  Before I leave the topic of care and control and access, it has not escaped my mind that on various occasions, the parties had been warned about the most undesirable situation that if their arguments persist and clearly acting against the best interest of D, the SWD is empowered to take further steps. They had been warned by the MDCC, by SIO, as well as the Court at an earlier hearing. From what I can understand, these warnings came as a result of learning of the parties’ constant conflicts, and the manner in which the parties would handle these conflicts, and thereby delaying decision-making process for D, be it to enrol in schooling, or to be discharged from a hospital. I can only do my best to stress to the parties that, whatever that has been the pattern of how they deal with conflicts, now is an opportunity for each to focus on their own part, with the Father managing the weekday routines and the Mother focusing on building a secured and safe bond with D over weekend activities. If each party can accept the fact that the other party is entrusted with such roles, then there ought to be less conflicts in going forward. 

109.  By the above, I will order for a progress report to be filed into Court in 18 months’ time. I have considered Madam Cham’s opinion on this point .Yet, due to the reasoning I have given above, I believe it would be prudent to check on D in time before she enters primary education. I hope that by ordering this progress report, it gives assurances to the parties that the Court will continue to monitor the interests of D; in return, the parties can act sensibly and, if possible, refrain from taking out more court applications on D’s childcare within this period.

Schooling Summons

110.  I adopt my earlier findings insofar as they relate to the Schooling Summons and will not repeat. I have considered the respective parties’ submissions as well as their evidence filed, including reports exhibited regarding FNS and KTCK, their respective preferred choice of kindergarten. As at the time of the trial, it was a fact that D was attending FNS for K1 as a shadow pupil, despite objections from the Mother. I have considered the relevant SIR passages describing D during her N class year.[9] D was reported in both reports to be rather shy and takes times to familiarise herself with the environment. While the profiles of the respective schools are both satisfactory and suitable for D, given the amount of conflicts which impacted the child in the recent past, as well as the wish to provide stability for D in going forward, I am more inclined to allow D to remain in her present environment at FNS, and so I order.

111.  The Mother shall provide the Registration Cert to the Father within 14 days of this Order and to co-operate in the signing of all necessary documents for D to be enrolled at FNS as soon as practicable, and in any event in time for commencement of K2.

Orders

112.  Based on the analysis above, I will make an order in relation to the Father’s Summons filed on 24 May 2024, the Mother’s Summons filed on 12 June 2024 and the Mother’s Summons filed on 25 July 2024 in the following terms:-

(1)  Sole care and control of D shall be granted to the Petitioner father.

(2)  The Respondent mother shall have defined access to the children in the following terms:-

Overnight access

1.  Overnight access to be exercised on a two-week rotation basis, (commencing on Friday 5 June 2026 as week 1, 12 June 2026 as week 2, 19 June 2026 as week 1, and so on), as follows :-

(a)  Week 1: Friday from after 4:30pm (or after school pick-up if the child of the family is attending school)  until Sunday 6:00pm;

(b)  Week 2: Friday from after 4:30pm (or after school pick-up if the child of the family is attending school)  until Saturday 6:00pm.

Holiday access

2.  For public holidays such as Christmas, Lunar New Year and Easter, each party shall have half of the holiday period for access. If the access period exceeds one day, it shall be overnight access. The specific dates and times shall be agreed between the Petitioner and the Respondent;

3.  Except for handover at school, the handover location for access shall be at the shopping mall of the Petitioner’s residential estate in Fanling;

4.  If difficulties arise in coordinating access, the Petitioner and the Respondent shall make use of the parenting coordination service provided by the Shared Parenting Support Centre, at "Parent-Child Link" and/or TWGH Heart of Home, or otherwise advised by the relevant social welfare officers in charge;

(3)  The Petitioner Father to provide the current K1 school calendar as well as all school notices of New Territories Women & Children’s Welfare Association Fanling Nursery School to the Respondent Mother as soon as practicable and in any event within 3 days upon receiving the same from the school;

(4)  A progress report to be filed with the Court within 18 months from this Order, namely on or before 29 November 2027 and to be released to the parties;

(5)  The child be enrolled to kindergarten at New Territories Women & Children’s Welfare Association Fanling Nursery School as soon as practicable and in any event in time for commencement of K2 in the summer of 2026.

(6)  The Mother shall provide the Registration Cert to the Father within 14 days of this Order and to co-operate in the signing of all necessary documents for D to be enrolled at New Territories Women & Children’s Welfare Association Fanling Nursery School as soon as practicable, and in any event in time for commencement of K2.

(7)  Penal Notice be endorsed, personal service be dispensed with.

Costs

113.  Since this is a children matter, and that the parties are acting in person, I shall make the usual order that there be no order as to costs in respect of all three summonses, including all costs reserved. This is an order nisi to be made absolute at the expiration of 14 days.

Postscript

114.  Madam Cham has suggested that mediation in the private sector may bring about a higher efficiency for the parties[10]. I agree. Since mediation is a voluntary alternative dispute resolution process, I cannot and will not make any orders on this save to strongly encourage the parties to pay heed to the candid advice of Madam Cham and to give it a try in going forward.