LKW v. THY

FCMP 218/2019

[2023] HKFC 10

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 218 OF 2019

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JUDGMENT
(Change of Name)

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Introduction

1.  The Applicant (“Mother”) and the Respondent (“Father”) were married in 2013 and they gave birth to their daughter (“the Child”) in 2014, Father and Mother were separated since late 2015 and were divorced in 2017.

2.  Mother now makes an application to change the surname of the Child from Father’s surname to that of the Child’s stepfather’s.

Background

3.  Mother filed a petition for divorce in January 2016 and the Decree nisi was made absolute on 19 April 2017.

4.  By the Order made on 4 May 2016, Mother was granted sole custody, care and control of the Child with reasonable access to Father.  Father was ordered to pay $5,000 per month to Mother as the Child’s maintenance.

5.  Mother was remarried to Mr. T in 2018 and Mother gave birth to their son (“the Brother”) in 2016.  Mother, Mr. T, the Child and the Brother now reside together.

6.  By Originating Summons taken out on 28 October 2019 which was later amended on 17 December 2019, Mother made the present application so that the Child could have the surname “T” as Mr. T and the Brother.

7.  Mother, Father and the social welfare officer (“SWO”) gave their oral testimony at the trial.

Social Welfare Reports

8.  2 reports prepared by SWO were obtained for the question of change of the Child’s surname dated 27 May 2020 (“the 1st Report”) and 23 February 2021 (“the 2nd Report”) respectively.

9.  SWO in the 1st Report made recommendations in favour of the proposed change of the Child’s surname but recommended against a change of the Child’s surname in the 2nd Report.

10.  SWO noted consent from Father for change of the Child’s surname when the 1st Report was prepared.  Father expressed opposition when the 2nd Report was prepared.

11.  SWO explained that the only reason for the change of recommendations was that Father was noted to have consented to the change of the Child’s surname when the 1st Report was prepared who later opposed the change of surname when the 2nd Report was prepared.

12.  In her recommendation against the change of the Child’s surname in her 2nd Report, SWO expressed that surname signifies one’s recognition of self-identity and the Child’s surname represents the blood relation between Father and the Child, unless with the consent of both parents and the assurance that the non-custodian parent and the minor could maintain contact, a change of surname would only deny the biological link between the Child and Father and would be a hinder to the Child in developing her well-being of the person as a whole” (整全人格) in the future.

13.  Further, parents have the duty to help their child to proactively cope with problems so that the Child could be ready to face different challenges when growing up.

14.  Considering the opposition of Father and the change of surname was considered to further estrange the Child from Father and more difficult for them to rebuild a good parent-child relationship, SWO recommended against the proposed change of the Child’s name. 

Mother’s Grounds for Application

15.  Mother’s case is that it is the understanding and desire of the Child to change her surname, bearing a different surname with the Brother and Mr To in family and social settings would cause embarrassment to the Child and is likely to affect her in the future. 

16.  Mother also testified that she was worried that the difference in their surnames could destroy the Child and the Brother’s relationship when they have arguments in the future with the Brother who was suffering from autism and ADHD. 

Legal Principles

17.  It is trite that the Child’s best interest is paramount in the Court’s exercise of discretion concerning change of surname in application of this kind.

18.  Section 3 of the Guardianship of Minors Ordinance (Cap. 13) provides that:

“(1) In relation to the custody or upbringing of a minor…

(a) in any proceedings before any court…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…is superior to that of the mother, or the claim of the mother is superior to that of the father”

19.  The House of Lords held in Dawson and Wearmouth [1999] 1 FLR 1167 that an order for a change of surname should be granted if it would be in the interest of the child’s welfare and the attitude and views of the parents are only relevant insofar as they may affect the welfare of the child: see 326B per Lord Hobhouse of Woodborough.

20.  The Court of Appeal in UK in Re W, Re A, Re B (Change of name) [1999] 2 FLR 930 (concerning illegitimate child born out of wedlock) followed the guidance in Dawson and Butler-Sloss LJ (as she then was) and stated the following at 933§(9):

(a)  If parents are married they both have the power and the duty to register their child's names.

(b)  On any application the welfare of the child is paramount.

(c)  Among the factors to which the court should have regard is the registered surname of the child and the reasons for the registration, for instance recognition of the biological link with the child's father. Registration is always a relevant and an important consideration but it is not in itself decisive. The weight to be given to it by the court will depend upon the other relevant factors or valid countervailing reasons which may tip the balance the other way.

(d)  The relevant considerations should include factors which may arise in the future as well as the present situation .

(e)  Reasons given for changing or seeking to change a child's name based on the fact that the child’s name is or is not the same as the parent making the application do not generally carry much weight.

(f)  The reasons for an earlier unilateral decision to change a child’s name may be relevant.

(g)  Any changes of circumstances of the child since the original registration may be relevant .

21.  It is trite that the Child’s best interest is paramount in the Court’s exercise of discretion concerning change of surname in application of this kind.

22.  The principles in the above English authorities apply to change of name of a legitimate child and have been followed in Hong Kong, for instance in XS 及LB [2018] HKFC 68 at §§52-53 at pp.21-22.

Issue

23.  The issue in this case is whether allowing the change of her surname would be in the best interest and welfare of the Child.

View of the Child

24.  The Child expressed in the 1st Report her desire to change her surname to T to the SWO due to embarrassment caused by having a different surname with the Brother, she also expressed in both reports that she loved the Brother and Mr. T so that she wanted to have the same surname as them.

25.  As for Father, the Child did not want to meet with him who did not spend much time with her and she felt like he was a stranger.  There was 1 occasion on 29 March 2020 that SWO arranged access between Father and the Child but she refused to alight the car to meet with Father.  The Child could recall an incident where she tried calling Father when she had fever at the age of 3 but his phone was left unanswered. 

26.  It is accepted by the minor’s view ought to be taken into consideration had the minor been able to comprehend the issue of changing of the surname, seeXS 及LB [2018] HKFC 68 at §53(9).

27.  In general, the older the minor is, the more weight the court should attach to the minor’s view.  

28.  Hon Kwan VP at §71 in her judgment in the Court of Appeal case of YSYM v. LHB (unreported, CAMP 24/2020 & CACV 252/2020, 22^nd July 2020) cited with approval what Rix J said at §§57 and 58 in Re R (Residence Order) [2010] 1 FLR 509 :

“[57] The importance of listening to a child once he or she has reached the age of 10…has been stressed in the authorities. Thus in Re L (A Child) (Contact: Domestic Violence) [2001] Fam 260, [2001] 2 WLR 339, [2000] 2 FLR 334 at 271-272, 347 and 340 respectively, Dame Elizabeth Butler-Sloss P sitting in this court cited with approval Contact and Domestic Violence – The Experts’ Court Report [2000] Fam Law 615 at 624 on the subject of a child’s wishes:

‘… while this needs to be assessed within the whole context of such withes, the older the child the more seriously they should be viewed and the more insulting and discrediting to the child to have them ignored. As a rough rule we would see these as needing to be taken account of at any age; above 10 we see these as carrying considerable weight with 6-10 as an intermediate stage and at under 6 as often indistinguishable in many ways from the wishes of the main carer (assuming normal development). In domestic violence, where the child has memories of that violence we would see their wishes as warranting much more weight than in situations where no real reason for the child’s resistance appears to exist.’

29.  The Child was 5 years old at the time of filing of the Originating Summons and is 7 years 7 months old at the time of the trial.  The Child’s age is between 6-10 and described as in an intermediate stage.

30.  While YSYM is a case about relocation, the general principles governing applications concerning children set out in section 3(1) of the GMO are covered.

 In  LCG v. IK (unreported, FCMP 231/2019, 22nd June 2021) at §§137-141 at pp.46-48,HHJ Grace Chan has followed the YSYM approach.  In that case,  the child was about 6.5 years old and 7.5 years respectively when the first and second social investigation reports were prepared.  The learned Judge was of the view that the child was still of tender age under the age of 10 and did not place much weight on the child’s views.. 

31.  In XS case, DDJ K.K. Pang (as he then was) found the child who was around 6 years old at the time of trial as having little understanding of the implication of change of surname and did not attach much weight to his view.

32.  Mr Chan for Mother submitted that the Child knew and was capable of distinguishing her birth father and step-father.  She not only understood her parentage, she demonstrated a strong desire to have her surname changed. The Child’s view should be taken into consideration.

33.  Mr Chan invited this Court to consider the evidence of SWO who commented that the Child possessed strong language skills and a glib tongue and the Child was capable of repeating key points and answering questions raised by her.

34.  However, SWO was not in a position to comment that the Child was more mature than the children of similar age because she had met with the Child once or twice.

35.  I do not think the above is enough to show that the Child is mentally and psychologically as mature as a child whose age has reached 10.

36.  The Child is still within the age group of 6-10, she has not reached the age where her view should be given considerable weight.

37.  I agree with Ms Ho for Father that in consideration of the young age of the Child, it is both doubtful and uncertain as to whether she was mature enough to express her true feelings in relation to the proposed change of her surname or could comprehend the impact and significance of such.

38.  It is therefore my view that this Court should attach minimal weight to the Child’s view.

Father’s Consent

39.  SWO noted that Father consented to the change of surname of the Child when preparing the 1st Report.

40.  Father explained that he was told by Mother that the change of Child’s surname was to Mother’s surname only.

41.  He received the following message from Mother on 28 August 2019 who proposed the change of the Child’s surname:

(1)  “呀女出年要升小一，如果我下下比人叫曾太我有d想嘔，而呀女個老逗又唔出現，佢會比人笑，我想幫呀女跟我姓”

(2)  “如果可以轉姓，我唔再要你既贍養費”

42.  Father at first found the proposal of change of surname to Mother’s surname acceptable to him because she was the natural mother of the Child and Mother’s proposal might help lessen the stress in the strained relationship between Father and Mother so that he could visit the Child more frequently thereafter and this could at the same time relieve his financial burdens as he was responsible for nursing his aged mother and he was going to re-marry soon.

43.  Mother later withdrew the offer in relation to the maintenance and Father refused to give the consent.

44.  Father explained that when he spoke to SWO in the 1st Report, he meant to refer to the initial consent he gave for the Child to adopt Mother’s surname only but not someone’s who had no blood ties with the Child.

45.  Mother at first denied having proposed letting the Child adopt her surname but later admitted that she made a typographical error in referring to her own surname instead of Mr T’s in the message.

46.  The plain reading of the above message clearly showed that Mother said she wanted the Child to adopt her surname “跟我姓”, it was clearly not a typographical error between Mother’s surname and that of Mr T’s.

47.  I find that Mother’s original proposal was for the Child to be adopting Mother’s surname.

48.  One way or the other, Father withdrew his consent even for Mother’s surname to be used, it would be inconceivable for Father to have consented to the Child to have Mr T’s surname.

49.  I accept Father was given to understand that the Child’s surname was supposed to be changed to Mother’s originally and that the consent expressed to SWO was just miscommunication between Father and SWO when the 1st Report was prepared.

50.  The fact remains that Father had at one stage agreed to the Child’s change of name albeit to Mother’s surname. 

51.  This would still be a factor to be considered by this Court in the present application.

The Child’s Status Quo

52.  At the time of the trial, the Child was studying primary two.

53.  Mother gave evidence to the effect that the Child had been using Mr T’s surname for almost 2 years as an on-going practice at school and extra-curricular activities and on Facebook.

54.  These were matters only mentioned at trial but not something mentioned in either of Mother’s affirmations filed on 28 October 2019 and 5 October 2020, no documentary evidence had been adduced in support of this contention although Mother said such was available if required.

55.  According to SWO, the teacher at the Child’s school confirmed that Mother asked her to refer to the Child without surname only and the Child said she would courageously let the teacher and classmates know of her change of surname in the event of a successful application.  The above indicate that the Child’s surname used and recongnized at school was still the same as Father’s especially when it is unlikely that the school would agreeable to let the Child use a different surname other than the registered surname of Father’s.

56.  However, given the express desire to use Mr T’s surname to avoid embarrassment and the ease to use a different surname in extra-curricular activities and Facebook, I am prepared to accept that the Child did on limited occasions use the surname of Mr T.

57.  Mr Chan urged this Court to not upset the status quo of the Child in her use of Mr T’s surname.

58.  I cannot agree with Mr. Chan, to my mind, the status quo is the Child’s surname being officially the same as Father’s albeit the Child has used her step-father’s surname on occasions.

59.  If there is already a status quo as claimed by Mother, there would not be the need for her to make the present application.

60.  It is not uncommon that people call themselves by nicknames or alias, it still does not change the fact that their official surnames remain the same.

61.  In my view, the practice of using Mr T’s surname on occasions is just a demonstration of the Child’s wish to change her surname. Minimal weight only should be attached to such practice because the change of surname is not a matter for the Child to decide.  If little weight ought to be given to the Child’s view, I do not see why any more weight should be attached to her unilateral use of another surname on occasions.

Relationship between Father and the Child

62.  Mr Chan submitted that Father had all along been neglectful towards the Child and his attitude towards the Child ought to be taken into consideration.

63.  It is Mother’s case that she was abused by Father when she was 3-month pregnant, Mother did not give full details of the incident but admitted that no police report had been made for that incident.

64.  This was an incident that allegedly took place before the birth of the Child, I consider this matter to be of little relevance to the relationship between Father and the Child.

65.  There is no dispute that Father had only visited the Child once in July 2017, between 2016 and 2017, Father’s mother visited the Child 4 times.

66.  Mother complained that Father did not even remember the birthday of the Child and when the Child was sent to ICU in May 2021 due to asthma attack, Father did not even show up.

67.  Father on the other hand complained that Mother obstructed his access to the Child and made it difficult.

68.  Father explained that his employer had asked him to go to Beijing on business and due to the global outbreak of COVID-19, he had to undergo a mandatory 21-day quarantine in Shenzhen.  Father was simply not allowed to leave the hotel in Shenzhen when he received the call about the Child’s hospitalisation.  He tried to ask his mother to come to hospital for assistance but the proposal was rejected outright by Mother.  Even after he was able to come back to Hong Kong on 20 June 2021, Mother made a lot of excuse to delay the meeting and Father and the Child could only meet in a restaurant during his lunch break on 24 July 2021 over one month after the Child’s hospitalisation.

69.  I accept that Father had been busy at work but he could certainly do better to work on improving his relationship with the Child.

70.  SWO in her reports observed that Mother was estranged from Father since their separation and they seldom communicated with each other.  The Child had an increasingly distant relationship with Father because they spent little time together.

71.  It is SWO’s view that both Father and Mother failed to safeguard the best interest of the Child upon their separation as follows at §18 of the 2nd Report:

“同住母親雖然提供適切的照顧給當時兒童，但卻沒有履行協助兒童與非同住一方及其原生家庭保持聯繫的責任，讓當時兒童建立良好的家庭觀念，達至日後茁壯成長。此外，非同住一方雖然努力維持生計，但錯失與當時兒童在幼年期與父母建立親密關係的機會，影響親子關係。”

72.  I accept Ms Ho’s submission that both Father and Mother had been jointly liable for the alienated relationship between Father and the Child. 

73.  The relationship between Father and the Child is a matter that would be taken into consideration in this application.

74.  It is a fact that the Child is distant with Father but I accept that Father had genuinely wanted to re-establish a relationship with the Child and he should not be deprived of the opportunity to do.

Recommendations of SWO

75.  Social welfare officers are often described as eyes and ears of the Court.

76.  In WSM v. FSY (A Minor: Custody Appeal) [2005] 3 HKC 319, Cheung JA commented on the approach to a social welfare report as follows:-

“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 case 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 Rafaqat Ali (CACV 144/2003, unreported). 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 v Y [2001] 1 HKLRD 261.”

77.  SWO’s evidence was not subject to much challenge by either party at trial.  SWO impressed me as an honest and impartial witness.  Except for Father’s consent in the 1st Report which I found to be miscommunication, I have no reservation in accepting SWO’s evidence on the factual matters that she investigated.

78.  SWO gave her opinion in §19 of the 2nd Report as follows:-

“19. 由於姓氏是一個人對身分的認同，也代表「當時兒童」和曾先生的血緣關係。完全脫離了原生家庭的姓氏，而更改成非血緣關係人士的姓氏，除非父母雙方同意。又能確保當時兒童與非同住一方保持聯繫，否則更改姓氏的舉措只會否定兒童與父親的血緣關係，直接對兒童日後建立整全人格構成障礙。此外，在考慮更改兒童姓氏至非血緣人士時，現今社會對婚姻關係的持續性以及單以兒童感到尷尬為由提出申請的理由是否充分，實在是值得相關人士深思熟慮。再者，父母有責任協助當時兒童積極面對問題，建立能耐面對日後成長的各種挑戰。父母雙方離婚是不爭的事實，女兒也有必要學習好好地面對，考慮到曾先生的反對，並認為這會令他和女兒的關係進一步疏離，更難重建良好的親子關係，有見及此，以當時兒童的利益為前提，調查社會工作主任未能支持李女士是次申請更改「當時兒童」的原有姓氏。”

79.  When SWO was asked about the definition of “the well-being of the person as a whole” (整全人格), she explained it would be the influence to Child’s cognition (認知) and values (價值觀) during her growth, in particular everyone has different development.

80.  SWO also stated that since Hong Kong is a patriarchal society (父系社會), and it is the customs that children would follow their biological fathers’ surname, a change of surname from the natural father to someone who has no blood ties might cause doubts to the children and affect their emotion as they grow up with the question who their father is.

81.  I am of the view that the recommendations made by SWO in both reports were well reasoned and supported and in line with the authorities.  I agree with SWO that mutual consent from parents would be a significant factor in her making of recommendations thereby causing the different recommendations in the 2 reports.

82.  I fully accept the recommendations made by SWO in the 2nd Report.  

Conclusion

83.  In light of the foregoing, I am of the view that it is in the best interest and welfare of the Child that her surname remains the same as Father’s.

84.  Before reaching such conclusion, I have already taken into account of the withdrawn consent from Father and the estranged relationship between Father and the Child, but in light of the overwhelming consideration in favour of the need to maintain the blood ties between Father and the Child, they can only be considered less significant.

85.  Further, I am satisfied that Father was sincere in re-building his relationship with the Child, I do not think it should be right to punish him for his previous bad decisions and lack of contact with the Child in this application.

86.  As for the Child’s view and the status quo, I already expressed that only minimal weight would be given to them.

87.  In light of the foregoing, I hereby dismiss Mother’s Amended Originating Summons for the Child’s change of surname.

Costs

88.  It is not uncommon that no order be made on costs in litigation over children matters.

89.  I follow such practice and make an order nisi that there be no order as to costs of Mother’s Originating Summons.