H v. N

HCMP129/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 129 OF 2011

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REASONS FOR DECISION

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A. INTRODUCTION

1. Section 3(1) of the Guardianship of Minors Ordinance, Cap 13 (“GMO”) was amended in April 2012.  Before then, it required the court, in any proceedings in relation to the custody or upbringing of a minor, to have regard to the welfare of the minor as the first and paramount consideration and in having such regard give due consideration to the wishes of the minor if it is practicable to do so.  The terms “welfare” and “wishes” of the minor are now replaced by “the best interests” and “views”.^[1]

2. This is the first hearing on section 3(1) in the High Court since the new amendments came into force.  I would like to take this opportunity to restate the general approach to section 3(1) and say a few words on how the best interests of a minor are to be assessed.  Hopefully, the need for cross-references to some of the authorities can be reduced.  The parties have kindly indicated that they have no objection to the publication of this judgment.

3. The background leading to these proceedings may be summarized as follows.

B.  BACKGROUND

4. By order dated 3 March 2011, I made A, a girl, and B, a boy (“the Children” collectively), wards of court and granted the Father interim care and control and the Mother access subject to directions of the court (“the Order”). The Mother now applied to vary the Order, seeking to have interim care and control of the Children with access to the Father subject to directions of the court.

5. At the hearing on 26 September 2012, the parties agreed that interim care and control of the Children should be given to the Mother.  I so ordered.  They disputed if the Father should be given defined access.  After hearing the parties, I granted the Father weekly staying access between 12 noon on Saturday and 8 pm on Sunday.

6. The Father is now 41.  He was born and raised in Hong Kong. After completing Form 3 and then a two year certificate course on building, he started working at the age of 18.  Initially, he mainly assisted in the family business of decoration, property agency and catering.  In more recent years, he has been operating a property agency of his own in the Western District.

7. The Mother is also 41.  She was born and brought up in Shantou, the Mainland.  She only studied up to Form 1.  She then started working at the age of 20, mainly working as a saleslady in Shenzhen.  In 1996, she came to Hong Kong on a one-way permit.  Since then she had taken up various jobs such as saleslady and cashier.

8. The couple met in 2003.  They soon started their cohabitation in October of the same year.  They later gave birth to A and B in August 2004 and March 2006.  The couple was eventually married in Hong Kong in March 2007. They lived in a flat of modest size in the Western District.

9. At all material times, the Father was the sole breadwinner, engaging in the family business and the Mother, a full-time housewife.  They employed full-time helpers until 2008.  They took care of the Children together, sharing the child care responsibilities.  The Mother was responsible for their daily physical care while the Father dealt with their education-related needs.

10. In mid 2008, marital discord arose.  According to the Mother, the Father ceased to pay monthly maintenance to her since then.  On the Father’s case, she refused to accept the maintenance.  Anyway, it is common ground that although they still lived in the same address, they shared no common matrimonial life.

11. In mid-November 2010, the Mother, apparently without the Father’s consent, took the Children to live in Shenzhen and withdrew them from their school in Hong Kong.  In January 2011, the Father commenced the present proceedings.  The couple had since then tried but failed to reconcile.

12. On 3 March 2011, I made the Order.

13. The marital relationship did not improve since then.  In January 2012, the Mother moved out of the matrimonial home with the Children and lived at a flat in the Western District.  Despite the Order which granted him interim care and control, the Father raised no objection.  On 23 February 2012, she commenced divorce proceedings[2] in the Family Court.  On 30 March 2012, the Father exercised his interim care and control of the Children pursuant to the Order and took the Children home.

14. A is now studying at a primary school in the Western District.  B is attending a kindergarten in Central.  Both are happy and perform well at school.

C.  RECOMMENDATION OF THE SOCIAL WELFARE OFFICER

15. At the directions hearing on 30 April 2012, I called for a social welfare report, which was filed on 29 June 2012.  The social welfare worker recommends that the interim care and control of the Children be given to the Mother with defined access to the Father.

16. I next turn to the law.

D.  HOW TO APPROACH SECTION 3(1)

17. Section 3(1) of the GMO, in its current form, provides :

“ (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-

(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

(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;

(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;

(c) where the minor is illegitimate-

(i) a mother shall have the same rights and authority as she would have by virtue of paragraph (b) if the minor were legitimate;

(ii) a father shall only have such rights and authority, if any, as may have been ordered by a court on an application brought by the father under paragraph (d);

(d) the Court of First Instance or a judge of the District Court may, on application, where it is satisfied that the applicant is the father of an illegitimate child, order that the applicant shall have some or all of the rights and authority that the law would allow him as father if the minor were legitimate.”

D1.  Equality principle

18. In approaching section 3(1), subject to the position under illegitimacy, the court will always put the competing parents on an equal footing.  Any role or gender discrimination is not permissible.  This equality principle reflects the shift in social values concerning parental responsibilities and the universal recognition that the long-term best interests of a child is best protected if both parents are, despite the breakdown of their relationship, involved equally.  As aptly explained by Hartmann JA in PD v KWW [2010] 4 HKLRD 199 :

“44. There was a time when the parents of a child, more particularly the father, had almost absolute authority over that child. That is no longer the case. The principle that the best interests of the child – not the authority of the parents – must be the paramount consideration is today almost universally recognised. As Lord Fraser said in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 at 170 :

‘ ... parental rights to control a child do not exist for the benefit of the parent. They exist for the benefit of the child and they are justified only in so far as they enable the parent to perform his duties towards the child.’

45. There was a time also, not so long gone, when the roles of the mother and the father in the raising of their child were viewed with almost equal rigidity. The mother was best left to care for the child, certainly when the child was young. The father was best left to provide financial support and to exercise rights of guardianship. As for his contact with the child, visitation was deemed sufficient. Today, such sexist views are obsolete.

46. Social imperatives change. When they are important and lasting, the common law can, and should, keep pace with that change.

47.  It is widely recognised today that the long-term best interests of a child are invariably best protected if, despite the breakdown of the marital union, both parents are able to continue to play an equal role in making the important decisions that will determine the child’s upbringing.”

19. In the case of illegitimacy, the position is a little different. At common law, an illegitimate child was regarded as a filius nullius, a child of nobody.  He had no legal relationship with the mother or father. Common law had developed to allow the mother to claim custody of her illegitimate child.  However, it remained the case that the unmarried father had no legal parental rights over his illegitimate child.  Now section 3(1) of the GMO accords the mother with the same rights and authority as she would have if the minor were legitimate.  But the father will only have such rights and authority, if any, as may have been ordered by the court upon his application.

20. In short, the common law disparity in parental rights in cases of illegitimacy still lingers but it can be redressed by the court under section 3(1)(d).  Whether and how the court will do so must depend on the actual circumstances of the case.  But surely the court will firmly bear in mind the equality principle discussed above when dealing with a father’s application.

D2.  Nature of inquiry

21. Having regard to the best interests of the minor as the first and paramount consideration is not simply a matter of putting the minor’s best interests on the top of the list of all items relevant to the issue in question.  It involves a careful evaluation of all the relevant circumstances and merits and demerits of the alternative proposals as they seem likely to bear upon the minor’s interests.  Lord MacDermott explained the nature of inquiry in J v C [1970] AC 668 in these terms :^[3]

“[It connotes] a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare as that term has now to be understood. That is the first consideration because it is of first importance and the paramount consideration because it rules upon or determines the course to be followed.”

D3.  Assessing the best interests of the minor

D3.1.  Applicability of the case law on the welfare principle

22. The change in terminology from “best interests” to “welfare” does not affect the substance of the law.  For the expressions “welfare” and “best interests” are synonymous : Re B (A Minor) (Wardship: Sterilisation) [1988] AC 199, per Lord Hailsham of St Marylebone LC at p.202, cited in Re A (Conjoined Twins : Medical Treatment) [2001] 1 FLR 1, per Robert Walker LJ at p.34D.

23. It follows that the case law on the welfare principle before the amendments to section 3(1) remains cogently relevant and indeed applicable to the assessment of the best interests of a minor.

D3.2.  Widest meaning possible

24. The term “best interests” is not defined.  For one thing, it is simply impossible to give an exhaustive statutory definition that embraces every eventuality.  More importantly, the flexibility without a statutory definition enables the court to identify and look into all the welfare issues concerning the minor as they arise from the particular circumstances of the case and carefully consider and evaluate all the matters pertaining to those issues.

25. A cursory research of the cases readily shows that the court has given the word “welfare” its widest meaning.^[4] Thus, it is not limited to monetary or material needs, the minor’s physical well-being or physical comfort but encompasses medial, moral, religious and emotional issues including his ties of affection and all other welfare issues.  The same must be true for the term “best interests” too.

D3.3.  Use of “the welfare checklist”

26. In assessing the best interests of the minor, the court must have regard to all the relevant factors.  Section 3(1)(a) has only prescribed two specific factors that the court must have regard to : (a) the minor’s views, if having regard to his age and understanding and to the circumstances of the case, it is practicable to do so; and (b) any material information including any report of the Director of Social Welfare.  I will return to the minor’s views and the social welfare report in a moment.

27. In recent years, when applying the welfare principle under section 3(1) of the GMO, judges in the Family Court[5] have consistently adopted the matters specified in section 1(3) of the English Children Act 1989, which have now come to be known as “the welfare checklist”.  Those factors are :

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

(b) his physical, emotional and educational needs

(c) the likely effect on him of any change in his circumstances

(d) his age, sex, background and any characteristics of his which the court considers relevant

(e) any harm he has suffered or is at risk of suffering

(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs

(g)  the range of powers available to the court under the 1989   Act in the proceedings in question.”

It has more or less become a standard practice in the Family Court in cases involving children to make use of “the welfare checklist”. 

28. I endorse this practice, but with three caveats.

29. First, absent any statutory underpinning in the GMO, our courts are under no duty to have regard to “the welfare checklist”.  In other words, it is not compulsory to do so.  Whether a judge may wish to make use of it and if so how is entirely a matter for him.  For example, he may cherry-pick, as it were, only those factors on the checklist which are relevant to the case before him.  As long as the judge’s decision, supported by reasons, is demonstrably in the best interests of the minor, he cannot be criticized for not expressly applying the checklist or not going through all the factors one by one.

30. Second, when applying the checklist, judges are not subject to the laborious necessity of expressly relating their findings in every case to its specific provisions one by one.^[6] Otherwise the task will become too onerous unnecessarily.

31. Third, “the welfare checklist” is an aide-memoire designed to ensure that none of the factors potentially relevant for a court considering a child’s welfare generally in the circumstances of each particular case is left out of account : London Borough Southwark v B [1993] 2 FLR 559, per Waite LJ at p.573B-C.  It is not meant to be exhaustive.  Judges are entitled to and indeed should have regard to all other relevant factors even if they are not on the list.

32. Subject to these caveats, I think judges are at liberty to make use of “the welfare checklist” in the way that best suits the need of the case before the court for the purpose of assessing the best interests of a minor.

D3.4.  Views of the minor

33. This is a factor specified by section 3(1).  How far the wishes of the minor should be a determinative factor and how weighty they are varies, depending on the circumstances of the case.  The court makes its decision, having regard to but not constricted by the wishes of the minor, fully conscious of the fact that his best interest may well diverge from his wishes.  After all, it has to be the decision of the court and not the minor^[7].

D3.5.  Parental views

34. The views of the parents, especially the devoted and responsible ones, are treated with respect and will not be disregarded or slightly set aside.  The court will take them into account, carefully evaluating them in conjunction with all other factors pertinent to the minor’s best interests.^[8]

D3.6.  Social welfare report 

35. This is another specific factor mentioned in section 3(1).

36. In WSM v FSY, CACV352/2004, unreported, 27 July 2005, Cheung JA dealt with the approach to a social welfare report in the context of a section 3(1) inquiry thus :

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

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

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

37. With these principles in mind, I now turn to the facts.

E.  THE PRESENT CASE

38. I first note that the Children were born before the couple got married.  However, thanks to section 3 of the Legitimacy Ordinance, Cap 184, they are legitimated from the date of their parents’ marriage and are regarded as legitimate.  So section 3(1)(c) of the GMO does not bite.

39. As already alluded to, the parties agreed that interim care and control of the Children should be varied and given to the Mother.  This is their joint wish and proposal, which I respect.  Incidentally, it is also the recommendation of the social welfare officer, whose professional views are weighty.  That said, I still need to be satisfied that when the matter is viewed in the round, the proposal is in the best interests of the Children.

40. The evidence is to a large extent finely balanced.  Both the Mother and the Father are responsible and devoted parents, having taken care of the Children quite well so far.  Both of them enjoy a good and loving relationship with the Children, they are equally capable of meeting the Children’s financial, emotional and educational needs.  A has indicated that she wishes to live with the Mother.  B has no particular preference.

41. The balance tilts in favour of the Mother because of this.  The Children are in their tender age.  As rightly observed by the social welfare officer, they need a stable and secure living environment and adequate child care arrangement for their healthy growth and development.  The Mother now lives at a 500 square feet in the Western District.  The flat is the property of her younger sister.  The flat is partitioned into two bedrooms.  It is well furnished and tidily kept.  The Mother, a full-time housewife, relies on the generous financial support of her maiden family in the Mainland.  She employs an Indonesian maid to assist in child care and household chores.  On the other hand, the Father lives with his own father in a flat, which is next to the former matrimonial home.  The flat is adequately furnished.  It is about 400 square feet in size but has only one bedroom.  The Father and the Children share the room while the grandfather sleeps in the living room.  The former matrimonial home is owed by the grandfather.  It has been renovated recently.  But it is presently not available to provide accommodation to the Father and the Children.  The Father runs his own business.  Occasionally, the grandfather also helps take care of the Children but his assistance is limited because of his own health condition.

42. Plainly, the living environment and child care arrangement the Mother can offer is better.  It is in my view in the best interest of the Children to live with her.  So she should be given interim care and control of the Children.

43. Turning to access, contrary to the parties’ views, it is a basic right of a child rather than a basic right of the parent.  Giving access to a parent thereby enabling the child to keep in contact with him or her is essential to the minor’s emotional and material growing up in the long term.

44. The Father wished to have weekly staying access over the weekend.  The Mother opposed, contending that the living condition of his abode is poor and he lacks the ability to take good care of the Children.  I do not think these objections are objectively substantiated by the evidence before me.  The Children should not be deprived of the opportunity to live and share their time with their caring father over weekends, which I believe, is important to their growth at this formative stage of their life.

45. For the above reasons, I made the Order as I did.