ZHEN XIAO TING v. YU SAN CHUEN

CACV 404/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 404 OF 2000

(ON APPEAL FROM FCMC No 5862 of 2000)

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J U D G M E N T

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Hon Le Pichon JA:

1. This is an appeal to set aside and discharge the order made by Deputy Judge Chainrai on 3 August 2000 in FCMC 5862/2000 granting interim custody, care and control of the child of the marriage to the petitioner with reasonable access to the respondent.

2. The child is a baby girl who was born on 26 October 1999. At the date of the order she was 9 months old. She is the only child of the petitioner and the respondent and, for convenience, I shall hereafter refer to them as wife and husband respectively.

3. The parties were married in Hong Kong in August 1996 and the child was born some three years later. The wife is a Canadian national and her stay in Hong Kong was sponsored by the husband. The marriage ran into difficulties and the wife petitioned for dissolution of the marriage and sought ancillary relief. Her petition is dated 23 June 2000. On 14 July 2000 the wife took out an ex parte summons for interim custody of the child. The hearing was adjourned pending a social investigation report. The summons seeking interim custody was precipitated by events which took place between 26 June 2000 and the date of the summons.

4. The background facts are not in dispute. Since about July 1999, the wife had been living at the matrimonial home in Hong Kong owned by the husband. Prior to that and for much of the time after the date of the marriage the parties had been living in Kai Ping, the Mainland where the husband had and still has a factory. In July 1999, the wife came to live in Hong Kong with her mother-in-law so that the child would be born here. Between the child's birth in October 1999 and February 2000, on average the husband visited Hong Kong twice a month for a few days at a time. Thereafter he was seldom in Hong Kong until recent events.

5. The wife took care of the child full time until December 1999 when she took up a job at a supermarket. She did so apparently to reduce conflict between herself and her mother-in-law. In February 2000, she took up a job as a waitress earning $8,500 a month. She paid her mother-in-law $4,500 out of her wages for taking care of the child. As a waitress, her working hours were from 12:00 noon to 11:00 p.m. with three days off a week. Until the incident on 26 June 2000 when she was effectively excluded from the matrimonal home by her mother-in-law, she cared for the child during her days off and each morning until she had to go to work. The child also slept with her.

6. The wife's period of stay expired on 26 June 2000. The husband did not return to Hong Kong to sponsor her application for an extension of stay. The wife was understandably disappointed and when the mother-in-law asked for the monthly contribution, the wife indicated she wanted to reduce the contribution to $2,000. An argument ensued and the mother-in-law threatened that she would not allow the wife to return home if the full amount was not paid. That night upon her return she was refused entry. Not only has she not been allowed to return to live at the matrimonial home, the wife has experienced considerable difficulties in gaining access to the child. This gave rise to her ex parte application for interim custody. The wife went to live with her elder sister and brother-in-law who are willing to have the wife and the child live with them and their family.

7. The social investigation report dated 27 July 2000 recommended that interim joint custody be granted to the parents with interim care and control to the paternal grandmother. It also recommended that a clinical psychologist be asked to assess the child's relationship with the parents and the significant others as well as the capacity of the parties concerned in providing care and supervision. The recommendations were based on the child's stronger attachment to her grandmother who had been taking care of her whilst the mother was at work and since the incident on 26 June 2000 on a full time basis, and the second reason was the grandmother's greater child caring skills. In the report the social work officer stated these views:

"At her tender age of eight months, the child was unable to voice out her preference in her future custodial parent. However, during home visits to the child, the child was observed to be more attached to the paternal grand mother than the mother. The child cried more often and craved for the paternal grand mother when she was in the hands of the mother. She seldom cried and even slept in the hands of the paternal grand mother's hands. Also, the paternal grand mother demonstrated a much more experienced child care ability than the mother. The mother could bath and dress the child properly, but did not know the proper way in feeding the child. The child refused the feeding sometimes and only finished half of the porridge fed by the mother, which was said to be the first time for the mother to feed the child. The paternal grand mother, on the other hand, was able to perfrorm the above tasks skillfully and the child finish the porridge fed to her within five minutes."

8. Counsel for the appellant placed considerable emphasis on this passage which led to the report's conclusion that a change in the status quo would not be desirable for the child's development at the present stage.

9. In a carefully considered judgment, the deputy judge rejected the recommendations contained in the report. She gave full reasons for so doing. These appear on pp. 6 to 7 of her judgment. She considered that the report placed too great an emphasis on preserving the status quo when that is but one of the factors to be considered in the balancing exercise that is inevitably called for when a judicial discretion has to be exercised. She went on to say this:

"... It is quite apparent in my judgment that Mr. Chan in his report is clearly not appreciative of the fact that his recommendation would rob the child of her right to a close, constant and intimate contact with her natural mother for the greater part of her day. The importance and obvious benefit to a child in its formative years of being nurtured, cultivated and cared for by its own parents as distinct from a third party carer, a close relative notwithstanding, has largely been ignored by Mr. Chan. He is primarily concerned with the comparably lesser child caring skills of the mother as compared to the grandmother, in particular in her lesser ability to feed the child ... [The grandmother] remains by necessity a parent substitute. She will in the circumstances of this case never be able to provide, in my judgment, what a child can only find in its natural parent, however successful she might have been in looking after her grandchild in the past."

10. The deputy judge in addressing Mr Chan's apparent concerns over the mother's child care ability and the child's relationship with her parents made the following observations:

"Children are resilient to changes. The younger they are, the less cognitive of and the more tolerant they may be to changes of living environment and identity of their carer. The child is familiar with the wife and there is nothing to suggest that she has not bonded well with her. The mother stands able and willing to take up her responsibility as a parent full time. The social welfare recommendation does not permit that to take place. I see no valid reason why this proposed change of child care arrangement is not feasible and beneficial to the child. A change at this stage in the young life of the child would be less traumatic, if there be any trauma at all, since the father, grandmother and other relatives would be permitted to visit regularly."

11. The deputy judge then focussed on the applicable principle, namely the primacy of the welfare interest of the child. She concluded as follows:

"... this young daughter of such tender years should be with her mother. Of that I have not the slightest doubt ... it is my judgment that the welfare interest of this child is consistent and consistent only if she were to be returned to the loving care and full-time attention of her mother."

12. I have set out the deputy judge's reasons at length because any summary would not do them full justice.

13. An appellate court will not interfere with the exercise of a judicial discretion unless it is satisfied that either the judge exercised his discretion upon a wrong principle or that the judge's decision, being so plainly wrong, he must have exercised his discretion wrongly. See per Lord Scarman in B v M (Wardship: Appeal) [1979] 1 WLR 1041 cited with approval by Lord Fraser in G v G [1985] 1 WLR 647 at 652F.

14. There is no question but that the principle that the deputy judge was seeking to apply was correct. That being so, applying the principle in G v G the appellant must satisfy this court that the deputy judge's decision was plainly wrong. The mere fact that the result of the exercise of discretion would, or might, have been different if the members of the Court of Appeal had themselves been exercising the discretion is not sufficient to overturn the decision. There has to be something more.

15. Speaking for myself, I see nothing wrong with the manner in which the deputy judge exercised her discretion in the present case. I would not have exercised it differently myself. The child is of tender years and unless the mother is shown to be unsuitable, the child's natural place is to be with her. A court is not bound to follow the recommendations in a social investigation report. Here the deputy judge declined to do so for reasons which I find sound and convincing. I agree that the change in status quo is only one of the matters to be taken into account in the balancing exercise but in itself is not decisive. Children are adaptable particularly at that young age. Maintaining or preserving the status quo is not an end in itself and may not be in the paramount interest of the child.

16. One distinction that counsel for the appellant sought to draw to the court's attention when referring to the decision of the House of Lords in G v G was that in the present case there was no live evidence. He therefore submitted that the deputy judge should have paid greater attention to the views contained in the report. However, the court has no information as to how many visits the social work officer actually paid the parties in question. The report was called for on 14 July 2000 and was made available on 27 July 2000. During this period of 13 days, there were possibly two, or perhaps three, visits at which Mr Chan was present. This appears from the second affirmation of the wife made on 28 July 2000. In the circumstances, I do not think that the views of the social work officer should necessarily be given the weight that counsel for the appellant would like the court to do.

17. The other ground upon which this appeal is based is that the deputy judge disregarded the recommendation that a clinical psychologist assess the mother's child care ability. I am unable to discern from the report why there is such a need. The fact that during the social work officer's visit the mother experienced some difficulty in feeding the child who was then 9 months old, at a time when she had been separated from the child against her will for several weeks, is hardly surprising. That was no sufficient reason for requiring the assistance of a clinical psychologist. The deputy judge cannot be criticised for disregarding that recommendation which, with respect, lacked plain common sense.

18. For these reasons I would dismiss the appeal.

Hon Keith JA:

19. I agree that this appeal should be dismissed for the reasons given by Le Pichon JA. I wish to add three comments of my own.

20. First, this was an application for interim custody, care and control. Thus, the issue which the judge had to decide was in whose custody, care and control the child should be in the period between the date of the judge's order and the date of the substantive hearing of the parties' application for custody, care and control. For my part, I reject the criticism levelled at the judge, based on the reference in her judgment to the child's formative years, that the judge was diverted from the issue before her and was addressing what were in the long-term interests of the child. An examination of the judgment as a whole reveals that the judge was indeed addressing what course would be in the best interests of the child in the short term, though I would add that the long-term interests of the child may well have had an important impact on what the short-term interests of the child really were.

21. Secondly, it is a little unfair on the mother for the father to complain about the change in the status quo which the judge's order effected, when the status quo which he wishes to preserve was itself created by his mother barring the mother from the matrimonial home - though that should not prevent the court from making such order as reflects its view as to what are in the best interests of the child. Thirdly, the change in the status quo is, in my opinion, less significant in a case in which the existing status quo has only lasted for six weeks or so (as in the present case), and as much as twelve months might elapse before the substantive hearing.

Hon Rogers VP:

22. I agree with the judgments which have just been delivered. I only wish to add that, in my view, the judge below gave a full and proper assessment to the social worker's report, in particular, in relation to the social worker's view as to the appropriateness of the paternal grandmother, as opposed to the mother, having the effective custody of the child. I agree that the judge's approach to the exercise of her discretion was both sound and sensible.

23. As to the other point which was made by Mr Vaughan, that because of her use of the term "formative years", the judge must have been looking more to the long term view, in my view, that is not correct. The present stage of development of the child is very much the formative years and the judge had that in mind.

24. The appeal will accordingly be dismissed.

[Discussion as to costs]

25. Costs to be taxed (if not agreed) in accordance with Legal Aid Regulations.