LWY v. HM

FCMC 1302 / 2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 1302 OF 2015

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J U D G M E N T

(Final orders for custody/joint custody and the
practical arrangements for the child of the family)

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Introduction

1. This trial was primarily set down in order to determine the longer term arrangements for the only child of family, a little boy known as S who is now nearly 8 years of age, having been born on the XX May 2008. In addition the father issued three further summonses as follows:

Summons dated the 12 February 2015 under the old suit:

1.  this Honorable Court grant the Respondent [father] interim care and control of the child S, on a half half basis with the Petitioner.

2.  this Honorable Court allow the Respondent to give assistance to the child during the consumption of the lunch meal at the X Government Primary school.

3.  this Honorable Court variate the present defined access of the Respondent to the child and restore the access pattern of the 29^th August 2014 Court Order.

4.  this Honorable Court allow for a Penal notice to be attached to this Order.

Summons dated the 10 June 2015 under this suit:

1.  leave be granted to the Respondent for the filing of this Summons and related Affirmation of HM and exhibits;

2.  removal of the Chinese Character indicating the family name 劉 (LAU) from all identity documents (ID card, Hong Kong passport, Birth Certificate) of the family child S;

3.  the Court do give further directions on the clarification of the child’s family name.

Summons dated the 17 September 2015 under this suit:

1.  leave be granted to the Respondent for the filing of this Summons and related affidavit;

2.  interim access of the child of the family namely S (“be varied”) to:

 the access pattern of the 29^th August 2014 Court Order;

3.  the Court do give further directions on the education arrangement of the child :-

 that is to consider transferring S out of the X Government Primary school to another school;

4.  interim care and control of the child be of the Respondent;

5.  this Honorable Court request a psychological inquiry to objectively establish the daily social conditions of the child at the X Government Primary school (preferably not to be carried out by the CP Unit of Tsuen Wan but by the BH CP department);

These summonses were also adjourned to be dealt with at trial.

The issues

2. In a nut shell the Petitioner mother wishes to have an order for sole custody and care and control of S with defined access to the father. She also seeks some time with S over the weekends. The father for his part also seeks an order for sole custody and care and control of S. In addition he asks for a return to the interim order of the 29 August 2014 when the parties shared the care of S on a more or less equal basis. In addition there are the father’s three summonses to determine as set out above.

3. Thus the issues can be broadly identified as follows:

a) What should be the practical arrangements for S during term time? Should any further directions be given with respect to assisting S with meals at school over lunchtime and the removal of the Chinese name LAU from his identity documents? Should any further directions be given with respect to S’s general health, the management of his weight and schooling? 

b) What should be the arrangements for S during the school holidays?

c) How should single public holidays outside of the longer school holidays be divided?

Background

4. I have set out the background to the parties’ relationship in my judgement on interim arrangements and education dated the 29 August 2014. In particular reference may be made to paragraphs 5 - 13 of that judgment which for ease of reference I have reproduced here as follows:

Background

5. The parties are from very diverse backgrounds. The mother is 28 years old and is Hong Kong Chinese born and bred. She was brought up and educated in the Territory and graduated with a 2:1 in Philosophy from Y U. The father is 60 years old and is of Cuban descent. He described in the witness box the process of emigrating to the United States from Cuba when he was a teenager. He has American and Italian passports. He says that he has always been involved in learning and that he can speak six languages. He has been registered in a number of universities but has never graduated. The parties met in 2007 when the mother was in Italy taking a summer course during her undergraduate degree. At the time the father said that he earned a living by making things to sell such as souvenirs and small works of art. He owned a motor home. The parties met and quickly formed a relationship. The mother returned to Hong Kong and the father followed and they married on the XX February 2008. S was born 3 months later. The mother was just 22 years old at the time. The mother took some time out from her studies when S was first born, but then returned to Y U to complete her degree. The father got a part time job at the School of X at Y U where he earned on average HK$13,000 for every four months work – although according to the father the remuneration fluctuated according to the number of courses he taught. The couple also relied on some monies inherited from the father’s mother to support their living. 

6. According to the mother, the father was very controlling and dominating and was on occasions physically violent towards her – all of which is vehemently denied by the father. In any event the mother eventually left the father with S on the 8 January 2013. However on the 12 January she returned to the matrimonial home so that the father could have access to S. The mother then left S with the father, when according to her he became very insistent that she should do so. What happens next is a matter of some dispute. But suffice it to say that on or about the 27 February 2013 the father left Hong Kong with S and took him to Italy. The mother says that this was without her consent. Certainly the document that I have seen shows the mother’s agreement to the father travelling with S – it says nothing about him relocating permanently to Italy with S. In any event the father is adamant that the mother agreed to this. The mother for her part says that the father forged her signature. Hague Convention proceedings followed and at the end of June 2013 the Juvenile Court in Florence ordered S’s immediate return to Hong Kong. The father followed on the 14 July 2013. The mother issued divorce proceedings on the 29 August 2013. According to the father the case is still subject to an appeal in Florence which has yet to be handed down. 

7. I think at this point it is important to pause and to consider this situation from S’s perspective. It seems that there was a dispute initially between the parties about which language would be S’s main language. Whether it was agreed or not it seems that S was mainly brought up in an English speaking environment. Again although there is a dispute about the length of time that S went to kindergarten initially – there is no dispute that he went to an English speaking kindergarten called Z. According to a letter from the Kindergarten dated the 17 March 2014 he attended the K2 afternoon class from the 16 August 2012 – 1 February 2013.

8. The father then left Hong Kong and the child would not have had contact with the mother for a significant period of time. According to the father S was then enrolled in an Italian speaking kindergarten in Italy. The child would have been 4 years old at the time. It is not clear the extent to which Italian had been spoken at home previously - if at all. During the course of the Hague Proceedings in Italy S was taken into emergency foster care for 19 days – again presumably by an Italian speaking family. This must have been a very confusing and frightening time for him. The child was subsequently returned to Hong Kong with the mother – who was living with her family in a public housing unit. Thus he went from a predominantly Italian speaking environment to a mainly Cantonese speaking one. The mother then enrolled him in a Kindergarten on her estate – where the medium of instruction was also Cantonese. The difficulty with this of course is that up until this point S had not been brought up in a bilingual household. He had been used to communicating in English. Not surprisingly the transition to a traditional Cantonese style Kindergarten did not go well. Presumably S did not understand a lot of what was going on around him and probably had not done so since before his removal to Italy.

9. In the SIR of the 26 March 2014 the SWO described the situation thus:-

33. The form teacher, Ms W, reported S’s adjustment difficulties shown in his incompliance to routines at school and group outings, remote relationship with schoolmates and substandard academic performance in academics for his limited comprehension of Chinese and Cantonese.  According to Ms W, all subjects, except English, were taught in Cantonese.  Their syllabus also included Mandarin.  S was observed to have limited motivation in learning Chinese and Mandarin.  Ms W used the word “very self-centered” (the exact wording in Cantonese was “好自我”) in describing S’s overall performance.  According to Ms W, S tended to play himself alone and showed no interest to interact with fellow classmates.  When being instructed to accomplish academic or social tasks by teachers, the boy did not respond promptly.  He seldom finished his homework, especially those related to writing.  This situation remained the same for both English and Chinese assignments.  S’s use of pen was poor even when teachers adjusted the requirements to “line” drawings and prompted him with cartoon stamps and other incentives.  Teachers found it difficult to monitor his behaviors, especially during outdoor activities.  In January 2014, the school invited the mother’s assistance to accompany S at an outing to Hong Kong Science Museum.  However, the boy had never queued up and wandered around wherever and whenever he wanted.

10. After the father’s return to Hong Kong from Italy he had insisted on seeing S daily. Consequently at this stage S was being shunted between both parents on a daily basis and he spent long periods of time travelling between the two households. From the 13 October 2013 the parties were also in and out of court on a regular basis. On the 20 January 2014 a SIR in English was called for. The father did not fully co operate with the social welfare officer and it was not possible initially to conduct a home visit. On the 29 March 2014 he lodged a complaint against the social welfare officer concerned. The complaint was found to be of no substance. Once I had explained to the father the importance of a home visit he agreed to co operate as per his undertaking as set out in the order of the 4 April 2014. Notwithstanding that the father still refused to allow the SWO to subsequently make a surprise home visit to the property in which he was living. There were similar difficulties when I asked for a clinical psychologists report. The father has also made a complaint to the Equal Opportunities Commission.

11. On the 1 March 2014 the father accused the mother of child abuse and S was admitted to the B Hospital. The allegations centred on the fact that S was rather thin. The father accused the mother of not feeding him properly. This is against a background of the child being acknowledged by both parents to be a picky eater and of taking a very long time to eat meals. It should also be noted that originally the father complained that the mother was overfeeding S with cakes and bread (see for example p 518, 520 and 539/540 of the bundle). A multi disciplinary case conference was held on the 28 March 2014. It held inter alia that:-

10. Discussion on Case Nature

10.1.  The Chairperson summarized the findings, highlighted the factors to be taken into consideration and invited members to give their views on the case nature.

10.2.  For the complaint about undernourishment, Dr. L emphasized that the father’s worry about the low body weight and unhealthy skin colour was genuine as indicated by the clinical results.  The child was suffering from sub-optimal level of nutrition which affected his physical growth and caused mild iron deficiency that could have contributed to his mild anaemia.  Based on information shared by different professionals, the physical problem of the child might be attributed to inappropriate diet arrangement, inadequate child care and inconsistent parenting skills of both parents.

10.3.  Majority of members concluded that child neglect was not established.  Police remained neutral in the view on the case nature while Ms C of FCPSU(TW/KwT) considered the case could not be conclusive due to incomplete social investigation.

10.4.  In psychological aspect, the child was unhappy and stressful in face of the changes in the family condition since the parents’ separation and divorce proceedings and disharmonious interactions between the parents.  The child was having a cultural identity crisis as the parents held different views in the diet and education arrangements.  The child was having difficulty in the present schooling due to language barrier and insufficient language support in the home environment.  Nonetheless, both parents loved and concerned for the child.

10.5.  Majority of members concluded that psychological abuse was not established.  Police remained neutral in the view on the case nature while Ms C of FCPSU(TW/KwT) considered case could not be conclusive due to incomplete social investigation.

10.6.  Since the result of MDCC would be informed to the family court as supplementary information on the hearing on 3.4.2014 in family court, there would be possibility that the information might be summoned by the court.  The Chairperson enquired about the consent of the members to release the minutes of this MDCC to court in case of enquiry by court.  Members consented.

12. There was also concern expressed about the mother’s inadequate parenting skills. However the clinical psychologist who made this comment did so without seeing the mother interact with S. Consequently I do not intend to attach very much weight to this comment. The statement from the Nurse on the ward is also of some interest:

2.1  … She said S was a happy child as seen at ward.  He liked both of his parents and liked to play with other kids during his hospitalization.  When he saw his mother at ward, he was excited with spontaneous attachment of hugs and kisses.  When he returned to ward with his father for medical check-up while on home leave, he was quiet.  There was no direct communication between the parents and the nurse at ward had to act as middleman to pass messages between them.  The father was angry about the ward staff to have told the mother about the hospitalization of S.  He considered that the mother, being the suspected abuser, should not have been allowed to see the son at ward.  The mother was calm and cooperative towards ward nurse. …

13. However as a result of this incident S was released to the father’s short term care. On the basis of this the court made an interim holding order on the 4 April 2014 giving the father interim care and control. No orders were made for custody. The mother was given defined access on Monday’s and Wednesday’s and on alternate weekends. I made it very clear to the parties on that occasion that this was an interim interim order only and would only remain in place until such time as the court had more information at its disposal. During the summer the mother had access to S for longer periods of time. 

5. After the hearing on the interim arrangements I made an order that the parties should have joint interim custody and shared care as set out in the judgment of the 29 August 2014 as follows:

39  ….

The care arrangement for S during term time

Week 1 - commencing on Saturday 30 August 2014.

a)  S shall be in the care of his father from Saturday at 5:00 pm until Tuesday after school when S shall be picked up directly from school by his mother.

b)  S shall be in the care of his mother from Tuesday after school until Saturday at 5:00 pm when he shall be returned to the father.

Week 2 – commencing on Saturday 6 September 2014 

c)  S shall be in the care of his father from Saturday at 5:00 pm until Wednesday after school when S shall be picked up directly from school by his mother.

d)  S shall be in the care of his mother from Wednesday after school until Saturday at 5:00 pm.

40. The weeks shall then be alternated with the parties having either long or short weeks. This will also mean that the father may continue to take S to the V Church and for S to participate in activities there which he seems to enjoy. Each parent is responsible for doing S’s homework with him when his in their care. In so far as homework over the weekends is concerned the parent who has the longer week will be responsible for weekend homework – i.e. the mother will be responsible for weekend homework in week 1 and the father will be responsible for weekend homework in week 2. Each party may arrange activities for S when he is in their care. Further each parent will be responsible for any hospital visits/therapy sessions when the child is with them. Each parent shall also sign the school book when he is in their care. Pick up/drop off on Saturdays shall continue to be at Kwai Fong MTR station. I would strongly suggest that each party nominate a third party to do this on their behalf so that any contact between them is further reduced. Each party will also be responsible for buying their own set of school uniform for S. A clean set of uniform shall be returned to the other parent on Saturday evenings.

41. Further it is directed that S shall be known by his full name at school and generally i.e.

surname H,

first names, S.

42. In addition it is directed that the Petitioner’s solicitor attend the Immigration Department with both parties in order to pick up the child’s new passport, which shall then be handed into the court.

43. These arrangements shall continue to be supervised by the Social Welfare Department for the next 12 months.

  Holidays

44. Single public holidays during term time shall be spent with the parent who has the child on that day in accordance with the above schedule. Thus the father shall have the care of S on Tuesday the 9 September 2014 and the mother shall have the care of S on the 1 and 2 October and so on and so forth.

45. The school holidays shall be generally split between the parties equally. I will invite the parties to make further submissions with respect to the school holidays once both parties have received the school calendar, such submissions to be filed by close of business on the 30 September 2014. 

46. Thus I will make an interim order that there shall be joint custody of S with shared care. The arrangements shall be reviewed in 12 months time. I have decided to make an order for joint custody notwithstanding the very high conflict between the parties, given that the main custodial decision i.e. which school the child should attend has now been made.

47. There shall also be an updated SIR, an updated clinical psychologist report and an updated assessment from the A Hospital (if possible), such reports to be filed by the 1 June 2015. Given to the concerns raised by myself with respect to each party’s mental health I would also ask that a psychiatric/psychological report be obtained by each party.

6. Unfortunately despite these very detailed orders and directions the arrangement was not smooth and on the 22 October 2014 the matter returned to court. The main difficulty was that when the child was in the father’s care he was either going to school very late or he was not going to school at all. The father said that this was because S took a very long time to eat his breakfast and to toilet in the mornings – sometimes for up to two hours and that in addition the traffic could be bad. He also arranged for S to attend hospital and dental appointments during school hours. Further the father maintained that on occasion S was sick and could not go to school. In other words the father’s primary focus was to ensure that S was eating enough. The net result was that the start of S’s school life in Primary 1 was very disrupted. S also had other adjustment problems i.e. he would still on occasions not listen to the teachers or follow instructions and initially he was not very popular with the other students. There was also an ongoing issue over school lunch with the father requesting to go to school every day in order to feed S. Consequently there were a number of confrontations at school between the father and school staff. The father maintained his position throughout that the child was losing weight when in the care of the mother. He also requested that the child change class following an alleged bullying incident. He did not agree to the mother’s suggestion that the child repeat K3.

7. In any event I took the view that the situation at that point in time was clearly untenable and not in S’s best interest. Consequently I varied the order of the 29 August and granted interim care and control of S to the mother. I further ordered that S should remain in the care of his mother during the week and that he should have defined access with his father each weekend from after school on Friday at 4:30 pm until Sunday at 3:00 pm. I directed that S was to be picked up by the father at school on Friday – if it was a school day and at Kwai Fong MTR station if it was not a school day. Further the mother was to pick up S from the father on Sunday at Wanchai MTR station. This meant that the mother was able to ensure that S went to school and that as far as possible he complied with the school’s internal regulations. On the 29 December 2014 I made a further order in relation to the Chinese New Year holidays. It was further directed that S be weighed at the B Hospital once every two weeks. Up until that point the father was arranging for S to be weighed much more frequently in order to support his argument that the child was losing weight when under the mother’s care.

8. This then is the background to the arrangements that were in place as at the date of the trial. I am told that there are still difficulties. For example the mother claims that the father does not always return S’s school uniform to her after the weekend and on occasions he returns the lunch box unwashed. There are sometimes issues over pick up and drop off times. The mother from her perspective is concerned as she does not have any weekend time with S, whereas the father remains convinced that the child is not being properly fed when he is under the mother’s care. He also believes that the mother does not properly supervise the child’s homework and complains that the child is left in the care of his maternal Grandmother with whom he cannot fully converse.   

The law  

9. The law governing applications concerning the short and medium term arrangements for children plus their education is the same as that for their longer term care and is governed by the same legislation namely s 3 Guardianship of Minors Ordinance, Cap 13, which states that:-

GENERAL PRINCIPLES

(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;

10.  Although there is currently no statutory checklist in Hong Kong, as exists in other common law jurisdictions, there are a number of factors, which generally speaking need to be taken into account or considered, when determining issues relating to children or young people. Ms Mak for the mother referred me to them in her written opening and for ease of reference I have listed them below. Some of these mirror the checklist to be found in the English Children Act 1989. I should say at the outset that this list is not meant to be an exhaustive list, but is simply a useful guide when considering issues relating to custody, care and control and access and the welfare of children of generally.  The checklist includes the following factors:

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

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

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

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

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

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

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

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

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

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

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

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

I will refer to this checklist when discussing the issues below.

11. In addition Ms Mak referred me to the following case law – which is of relevance in the context of this case:

29. In Y v P, CACV140/2009 (14^th August 2009), the Court of Appeal overturned a judgment for joint custody and replaced it with a sole custody order in favour of the Mother.  Hon Roger V-P in his judgment stated that:-

“The important point, nevertheless, is whether given the existence of the lack of co-operation between the parties it would be right to order there be joint custody. The basis upon which the judge so ordered appears to have been what has been referred to as aspirational…. In my view that is more a matter of wishful thinking than a matter of practical reality.”

30. The Court is also aware that there are a large number of decisions which have stressed the important of the mother in the life of a young child [see for example the speech of Lord Janucey in Brixey v Lynas [1996] FLR499].  The views are clear that these decisions were formed based on practical experience and the realities of life and is not a matter of prejudice or discrimination.

31. The Court of Appeal had in another case PD v KWW [2010] 4 HKLRD 191 also looked at the question of joint custody.  The Honourable Mr. justice Hartmann JA in his judgment state that:

Para.31. The decisions to be made by a custodial parent are those of real consequence in safeguarding and promoting the child’s health, development and general welfare.  They include decisions as to whether or not the child should undergo a medical operation, what religion the child should adhere to, what school the child should attend, what extracurricular activities the child should pursue, be it learning a musical instrument or being coached in a sport.  A parent vested with custody has the responsibility of acting as the child’s legal representative.

Para.32 by contrast, the decisions to be made by a parent who (at any time) has care and control of the child are of a more mundane, day-to-day nature, decisions of only passing consequence in themselves but cumulatively of importance in molding the character of the child.  They include a host of decisions that arise out of the fact that the parent has physical control of the child and the responsibility of attending to the child’s immediate care.  They include decisions as to what the child will wear that day, what the child may watch on television, when the child will settle down to homework and when the child will go to bed.  They also include the authority to impose appropriate discipline.

Para.55. Accordingly, the issue for the judge is whether, with the court proceedings concluded, it is reasonably anticipated that the parents will be able to agree on the questions of importance that will determine the upbringing of their child, both recognizing that, as difficult as it may be for them, this process of co-operation is in the best interest of the child.”

“para.57. At all time, of course, the welfare of the child remains the first and paramount consideration. As this Court has recognized (see for example y v P [2009] HKFLR 308), there may be occasions when the ability of the parents to reach any rational accord in respect of important matters concerning the upbringing of their child is so deeply undermined that to compel attempts at co-operation will not protect the interests of the child but only leave the child more vulnerable.

With respect I agree with these observations.

Discussion

12. I must now turn to consider the issues, the law and each party’s evidence as set out in their affidavits and as given by them orally during the hearing. I have also heard from the social welfare officer – Ms W, the clinical psychologist, Ms F, the mother’s psychiatrist Dr M and the father’s psychiatrist Ms H.  

The experts

The Social Welfare officer’s reports

13. There have been three reports filed since my judgment of the 29 August 2014, the first dated the 22 December 2014, the second dated the 4 June 2015 and the third dated the 1 December 2015. The first report arose out of the order dated the 22 October 2014 when I varied the interim arrangements and made an order vesting interim care and control to the mother. I directed that there be an updated report with particular reference to S’s schooling and weight. The second report was filed pursuant to the original order in August 2014 and the third was an updating report requested prior to the trial in December 2015. Social Welfare Reports are generally regarded as the “ears and eyes of the court” and this case is no exception. As will be seen in this case the Social Welfare officer rather unusually chose not to make any recommendations. Notwithstanding that, the observations made by her have proved to be extremely useful in assisting the court in making a final determination.

14. It is also of note that the father made a complaint against the Social Welfare Department and has asked on various occasions that the officer in charge of his case be replaced. In a letter to the court dated the 22 October 2014 Ms CPC summarized the situation thus:

2. Further to my memo dated 17 October 2014 informing Your Honor Judge Melloy of our change of social welfare officer, Ms W has been assigned to take over the case since 17 October 2014.  The father wrote e-mails to me on 24 and 25 October 2014, asking for a change of social worker, allegedly because of Ms W’s negligence over the weight loss of the child-in-question at each access visit to the mother and favouritism towards the mother in investigation.  Having examined the request put up by the Respondent, I see no grounds for a change of social welfare officer again while Ms W will continue to be the social worker responsible for handling this case.  After all, this is the third time the Respondent asked for changing of social welfare officer to handle his case.  I copied my e-mail reply dated 6 November 2014 to the Respondent for the reference of Your Honor Judge Melloy.

The first report dated the 22 December 2014

15. The first report confirmed that S was leading a regular life under the care of his mother during the week, that he was not late for school and did not miss school unless he had a medical appointment. He had joined a music group on Fridays and also attended a playgroup after school twice per week. He was also receiving speech therapy and he was mixing well with others. Although academically he was still failing – some progress was observed.

16. However notwithstanding the court’s clear direction concerning the regular “weigh ins”, this issue continued to cause problems with the father insisting that S continue to be weighed regularly. This position also appeared to be supported by Dr L the consultant Paediatrician at B Hospital. The mother for her part was reported to have taken continual advice on the issue from the dietician at the hospital. In a letter attached to the Social Welfare Report dated from the BH dated the 12 December 2014 Dr L concluded that:

  In summary, S was admitted to our department on 1 March 2014 for suboptimal physical growth and iron deficiency anaemia related to inadequate dietary intake in the context of a slow and picky eating habit.  With meticulous attention and effort to ensure adequate dietary intake while he was under the care by his father, obvious improvement of S’s weight gain and correction on his iron deficiency was achieved.  Upon adoption of the current pattern of split care by parents and the resumption of school, a mild trend of weight loss in S was observed.  This has possibly been related to inadequate dietary intake during the weekdays.  At the moment, S’s body weight is still within the normal range but further follow up assessment will be necessary to make sure that, with the advice from dieticians and special measures to help him with his lunch at school, he will not continue to have weight loss but begin to have satisfactory weight gain again.

No specific recommendations were made by the Social Welfare Officer in this report.

2^nd Report dated the 4 June 2015   

17. Six months later further progress was reported in that S passed Mathematics and General Studies in the midterm tests. However he failed both language tests. Although his behaviour still required improvement some progress was observed in that area also.

18. Dr L provided a letter dated the 14 April 2015 which was attached to the report. This stated as follows:

  Further to my report dated 13^th December 2014, the above named patient has been attending regular follow up assessments in our paediatric ward once every 2 weeks, accompanied by his mother.  According to his mother, the schedule of patient’s care by parents remained the same as it had been before 13^th December 2014 and she has also brought S to see our dieticians as advised in the previously agreed plan of care.  S’s feeding has been gradually improving both at home and in the school as accessed by his mother.  Up to his last visit to us on 7^th May 2015, S’s physical growth parameters, as measured during follow up visits in the ward, have remained within normal range with body weight growing along 25%, body height growing along 10-25% and BMI maintaining at 25%. S appeared cheerful during follow [up] visits with no abnormalities detected by physical examination.

Thus S appeared to be making progress from a weight and general health perspective also. This was not however accepted by the father.

19. The Social Welfare officer again made no recommendation in relation to custody and care and control. However she made the following comments:

42. The present information gathered from the helping professionals shows that S became adapted to daily routine at school and managed to keep regular school attendance.  Under the present child care arrangement, S also made a steady progress in his studies and self-discipline while his academic performance did lag behind and his social and self-care capacity needed much improvement. Regarding the weight management of S, his physical growth parameters have remained within normal range with no abnormalities detected by the doctor. Given the child’s special need, continued home-school cooperation and the parents’ co-work with different helping professionals will be essential for the child’s on-going social and psychological development.  Yet, the mother seems lack of concrete accommodation plan because both she and S are not family members listed on the tenancy agreement at the maiden home, which will impose uncertainty on the continuity of care to the child.  Under such circumstances, the undersigned could not comment on care and control arrangement for the child.

 …

44. As the father still shows grave concern over the weight management and other health issues of the child under the mother’s care, the regular medical follow-up in B Hospital is suggested to be continued but the frequency can be reviewed so as to minimize the disturbance to S’s living.

20. The court subsequently received a letter from the Social Welfare Department dated the 12 June 2015. This stated as follows:

2.  On 7 June 2015, the father wrote an email to the undersigned that his son, S was being regularly bullied by his classmates such as being knocked down and punched by the classmate during recess and in the class.  According to the father, contusion was found over both lower limbs of the child at the time when he picked up the son for staying access on 5 June 2015.  The father was dissatisfied that the teachers failed to stop the group bullying actions against the child and the mother took no notice on the situation.  In relation to the incident, the father lodged complaints to the Education Bureau and the Headmistress of X Government Primary School, and requested transferring the child to another class at school.  The incident is still under the investigation by the said educational professionals.  The father also made a report to police and sent the child to A&E Department of B Hospital for medical examination on 7 June 2015.

3.  The mother disagreed that the child was being bullied at school.  According to the mother, she was kept informed of the son’s behaviors and working closely with the teachers on handling his misbehaviours such as punching classmates during recess, poking pencil in classmate’s hand and throwing rubber to hit the classmates in class.  The mother considered that to change to another class was not an appropriate option to modify the child’s misbehaviours.  Instead, she emphasized the importance of having continual cooperation with the teachers for joint efforts to coach the child for proper behaviours in social interaction.

For the avoidance of doubt I accept entirely that the school is neutral in this matter and I thank them for their assistance to the court in what are very difficult circumstances.

3^rd Report dated the 1 December 2015  

21. The Social Welfare Officer confirmed that S had been promoted to P2 with effect from the 1 September 2015 and that he continued to make some progress although he still lagged behind his peers in many respects. This was reiterated in a letter from the school direct dated the 18 December 2015. The school also described the same unfortunate incidents referred to above where the father believed that S was being bullied and called the police as a result. In conclusion the school said -

A stable education and living environment as well as cooperation between father and mother are important to him.  He was panic when he saw the father talked to the school personnel angrily.  The father once scolded at two of our staff at the school lobby in front of S.  The parents meet each other in the school sometimes, and S usually stands aside and looks frightened if the parents do not communicate in a friendly way.  Thus, the communication and relation between the parents makes him confused.  He tries to please the parents by presenting different image in front of them.  Teachers observe that S shows different behavior on Mondays, and he likes to bargain with teachers.  He is more stable on other days of the week after he adapts into the school routine again.

The school is writing in response to the request from Her Honour Judge Melloy received on 6.10.2015.  A letter from our school should be submitted for updating the court on S’s progress.  Actually, such report had been submitted on 15.5.2015. Unfortunately, the father misinterpreted the purpose of the report.  He was angry about the school’s action and complained to the Education Bureau to request the school to withdraw the letter.  Nevertheless, the school would like to highlight that the stance of the school towards the custody of the boy is neutral.  The intention of the report is just to allow the court to have a general and clear picture of S’s progress and parenting needs.  The school would not hesitate to clarify if there are any points not clear.

22. In so far as his weight and general health is concerned Dr L also wrote an updated Medical Report dated the 23 November 2015 in which he said that:

  According to both parents, all through the above period, they have been observing the same schedule of share care for S with the mother being responsible for weekdays and father over the weekends, respectively.  According to the assessments by the father, the same phenomenon of mild weight loss in S when he took over his care on Friday evenings was observed throughout the period which had caused the father extra effort in feeding up S over the weekends to compensate for the loss.  As an overall trend, S’s growth parameters have remained satisfactory with weight, height and body mass index (BMI) stable at 25-50%.  According to the mother, although S is still picky in food and requires encouragement and facilitation at meal times, his feeding has been gradually improving both at home and in the school.

  According to the mother, although S has been adjusting to the school, his school work performance is still below average.  As quoted from the recommendation in a clinical psychologist assessment report by K Child & Adolescent Psychiatric Centre dated 22^nd July 2015: “Since the patient could express his ideas and make friends mainly via English, an English friendly and speaking studying and peers environments at school would be highly recommended for his developmental and psychological growth.”

  During S’s follow up visit on 28^th Oct 2015, his father complained that S had been bullied by his classmate who had hit S on the lip causing a wound with bleeding at school on 10^th Sept 2015.  A photo taken by the father on 11^th Sept 2015 was shown to me confirming the said lip injury.  His father had reported the incidence to the police and S was brought to Accident & Emergency Department of S Medical Centre for management on 11^th Sept 2015.  However, as S had given inconsistent histories, ascribing the cause of his lip injury to hitting by classmates as well as to accidental fall in the presence of different persons, no definite conclusion could be arrived as to the cause of the injury.  The lip injury healed naturally without the need for any intervention.

  Up to his last follow visit in our department on 11^th Nov 2015, S remained cheerful and cooperative with good bonding to both parents.  His hygiene and nutrition state has been satisfactory.  Thorough physical examination revealed no signs of anaemia, significant physical injuries or any other abnormalities.

23. Again the Social Welfare officer made no recommendation in relation to the arrangements for S pointing out the pluses and minuses in both parents care plan:

29. For the child welfare plan, both parents are keen on sole custody.  The mother prefers sole care and control while the father prefers shared care arrangement.  Facing a challenge to nurture a child with western identity in the Chinese community, his weak social skills and picky eating habits make both parents frustrated but it also demonstrates their strength and shortcoming in parenting especially when the child entered into school.  The father excels at upholding the child’s English language competence and mobilizing the available resources to foster the child exposure in a multi-culture context.  He also pays every effort to provide nutritious food to the child and ensure his physical strength by doing self-designed exercises.  However, the father has to adjust his expectation towards the systems around the child in Hong Kong.  There is a room of improvement for the father to cooperate with different professionals.  Whilst, the mother participates actively and works closely with medical and educational professionals to ensure the child’s physical health and coach his social development and integration into the local community through developing his language competence in both English and Chinese and joining various activities at school and in the community.  Yet, the mother still fails to formulate a concrete accommodation plan as both she and the child are not the family members listed on the tenancy agreement at the maiden home.  Furthermore, the mother needs to further enhance her child care and parenting skills by attending related training courses.  Given the strength and weakness of both parents in parenting and their divergent views over the child welfare plan, it is hard for the undersigned to compare which care and control arrangement is best suited for the child’s welfare.

24. In addition to the Medical Reports, the school also wrote two reports, the second as referred to above and The V Church also provided a letter dated the 19 October 2015 for which I thank them.

25. All in all it seems from the reports that S has been making satisfactory progress. The father disputes this in his Rebuttal to the Mother’s final submission and says that there is no evidence to support this conclusion. I beg to differ. S’s weight appears to have stabilized and his general health appears to be good. S has been living with the mother for 5 days out of 7 so some credit must be given to her for this. Although the father maintains that S is only able to maintain a satisfactory weight because of his efforts alone – it seems to me that this must be as a result of both parent’s efforts. He is also making steady progress at school. Although the father complains that the mother is not properly supervising S’s homework and that she does not sign the homework book etc, I would accept that the mother is assisting appropriately in the circumstances. Perhaps most importantly S seems to have benefitted from a period of relative calm and stability.

The Clinical Psychologists reports 

26. There are two clinical psychologist’s reports. The first was filed prior to the judgment on the interim arrangements dated the 11 August 2014 and the second is dated the 1 June 2015. In the context of this judgment I am mainly concerned with the second report.

Report dated the 1 June 2015

27. Ms F confirmed that S ‘was able to make progress in the school after he stayed with his mother on school days”. She also reported on the father’s many and varied complaints against the school and the difficulties experienced by the school in that respect. She concluded that:

38. S impressed one to be attached to both parents.  At present, his relationship with his father was reported to be as closed as before the variation of interim care and control in last October.  He seemed to have developed better understanding and coping of parent’s separation.  He enjoyed staying with each parent.  He would follow their individual preference at each home and avoid sensitive topics.  Given the chaos in the child’s early life and extensive needs for development, a dispute-free, structured and stable living and learning environment with consistent, appropriate guidance and supervision should be viewed as the prime concern for S’s development at this stage. Both the father and mother did not consider any relocation plan for S in the near further.  The mother impressed one to be more able to cooperate with the school and different professionals locally to establish the child’s routine and provide a stable environment for him.  The principle of continuity of care is considered here to promote stability and consistency.  Defined access by father is also viewed as beneficial for the parents given their communication blockage and inflexibility.

With respect I agree with this assessment of the situation.

The mother’s psychiatrist

28. Given my concerns about the mental health of the parties I directed that both sides provide the court with a report. The mother provided a medical report from a Dr M, a specialist in psychiatry. Dr M found no evidence of any major psychiatric disorder. She said that the mother appeared submissive and passive. She added that she “needs to be more assertive, more empowerment is needed to deal with her coming divorce and parenting matters”.  Having seen the mother in the witness box I would tend to agree with this overall assessment of her personality.

The father’s psychologist

29. The father obtained a report from a clinical psychologist – H. She concluded that there were no signs of psychological disturbance or significant mental health problems. She did though touch upon some of the father’s personality traits that may have contributed towards some of the difficulties experienced by those involved in this case. For example she concluded inter alia that:

     …  

2.  The self-reliance cultivated in his upbringing, the resort to critical and logical thinking, his prior long exposure to relatively more liberal cultures, and his outspokenness are considered significant underlying factors for the strong adherence to his opinions he demonstrated in the past.  Nevertheless, Mr. H has also demonstrated his capacity for reflection and accommodation with reason.

3.  His emotional attachment to the child is strong, and the devotion to the child is unarguable.

4.  The emotional attachment and the devotion, his intellectual resources and the availability of skills have endowed him with the basic competence in parenting.

5.  The strong adherence to his own opinions could at times find him at odds with the societal systems and its arrangement.  With his capacity for accommodation and reason, Mr. H would benefit from support and explanation to minimize unnecessary difficulties in those instances.  This is especially important for child-related matters to which he attaches high importance.

6.  The maintenance and continued strengthening of social support for Mr. H is not only beneficial for his parenting role and the child’s development, but helpful for the adjustment of his opinions or action plans in a balanced and judicious manner.

The character of the parties

The mother

30. As indicated above the mother presents as being a very gentle person. She is softly spoken. I also accept that she is a dedicated mother. Historically I agree that she may not always have made the best decisions for her child (e.g. initially placing him in a Cantonese only speaking Kindergarten), but she is clearly bright and it seems to me that she has done everything within her power to ensure that S’s best interests are catered for. For example when she realized that there was a problem with S’s weight – she took appropriate advice and acted upon it. She has been able to co operate with the school and other agencies with a view to assisting S develop both academically and socially. It is clear that she is willing to accept advice. This approach is to be commended.

The father

31. The father also presents as being a dedicated parent. I accept that his actions are borne, in the main, from a desire to protect and properly parent S. The difficulty is that the father seems to find it hard to accept advice from the many professionals that are now involved in his son’s life, if they are not in tune with his own opinions. In other words he insists that he is right and that his view must prevail. Although he is often correct this can nevertheless bring him into conflict with those around him. He will also leave no stone unturned in order to ensure that the best is done for S – for example his insistence that dental services be provided to S at no cost. This can also sometimes lead to him behaving in a way that is not appropriate. It can also bring him into direct conflict with people in authority who do not necessarily share his view e.g. the school when they did not agree to his proposition that he be allowed to enter the school premises in order to feed S his lunch each day and with the SWO when she did not agree to weigh S before and after the mother’s access time. The relationship between him and the mother is similarly conflicted. He can also over react to situations which in turn can lead to further conflict and difficulty – e.g. he accused the mother of child abuse because the son’s weight was low which in turn led to the son being hospitalized – probably unnecessarily and to him being interviewed by the authorities; he also called the police when he suspected that his son had been bullied at school. Again this might also be regarded as an overreaction.

What should be the practical arrangements for S during term time?

32. S is now doing reasonably well in school and he appears to be settled and happy. Consequently it is imperative this situation be supported. Consequently I only intend to make a few changes to the practical arrangements for S during term time as follows:

33. S shall remain in the care of his mother during the week and he shall have defined access with his father each weekend from Friday at 6:00 pm until Sunday at 6:00 pm save for the first weekend in each month when the father shall have access to S from 6:00 pm on Saturday until Sunday at 6:00 pm. I have changed the times for pickups and drop offs so that S can return home after school on Fridays, drop off his lunch box and change his clothes. In addition the mother shall have the first Saturday in each month so that she might enjoy some quality fun time with her son. This arrangement will also ensure that S is able to continue to attend the V Church on Sundays with the father. S shall be picked up by the father on Friday at Kwai Fong MTR station. Further the mother shall pick up S from the father on Sunday at Wanchai MTR station or at another MTR station by agreement. If the parties cannot agree on this point then both sides shall write to the court within the next 7 days with their suggestions and the court will make a further direction on this point. In so far as daily telephone access is concerned – each parent may telephone S when he is not in their care at 7:00 pm in the evening.

Should any further directions be given with respect to assisting S with meals at school over lunchtime and the removal of the Chinese name LAU from his identity documents? Should any further directions be given with respect to S’s general health, the management of his weight, schooling and his passport?

34. I do not intend to give any further directions in relation to the issue of the school lunches save that I fully support the schools approach. It would not be appropriate, if indeed it was even possible, for a court to interfere with the internal running of a school on this sort of issue.

35. The father’s concern in relation to S’s surname is set out in his affirmation dated the 10 June 2015 as follows:

1.  I am the respondent. The fact and matters to which I depose are, within my personal knowledge, information and belief unless otherwise stated, true;

2.  the child’s ID card appears to the only Chinese speaker that his last name is 劉 “Lau” and not “H” and劉 “Lau” appears in all Hong Kong documents ambiguously as a Chinese notation of a family name. (exhibit N-1)

3.  Whereas this Honorable Court entertains no doubt in regard to the identity of each one of the parties, not all Hong Kong institutions have a clear perception of who the biological father of the child is, examples of this “qui pro quo” have been experienced at the Hong Kong police Dept., the Chinese schools the child has attended, the various hospitals where he has been a patient and other entitles such as the China Travel Service of Tsuen Wan and most concerning of all The Central Authorities of the People’s Republic of China, who were willing to grant a “Home Visit Card” for the child basing the admittance of the application on the family name劉(Lau) and provided the Petitioner would have exhibited a valid Hong Kong passport for the child, (the China Travel Service of Tsuen Wan will release the archived documentation related to the Petitioner’s “Home Visit Card” application for the child, only if a Court Order can be shown stating this request).

4.  In regard to the ambiguity of child’s family name which is not劉(Lau) but only “H” according to the Hong Kong law establishing the father’s family name as the legitimate family name of the child, the Petitioner has refused up to now to resolve the problem, which was created initially by ourselves.

Unaware of the consequences in the case of a divorce, I thought that including劉(Lau) as name of the child, might have contributed to calm LWY’s parents and family, who had fiercely opposed our marriage and had asked the Petitioner to perform an abortion and for this purpose the grandmother proposing to LWY a trip to Guandong, where her great grandmother resided.

The ambiguity problem appeared first, when ID card was issued, because even an expert would have doubts as to who the biological of the child is following the manner in which the names are displayed.

In regard to the other documents (passport and Birth certificate) it is not so easy to assume劉(Lau) as the family name, because “H” appears under the category “surname” and劉(Lau) under the category “names given”.

However, this legal specification stays in a semantical opposition to the diffused understanding in the Chinese population that劉(Lau) is a typical family, much like “Rossi” in Italy, “Zapatero” in Spain, “Mills” in the U.K., “Schumacher” in Germany or “Theodorakis” in Greece.

Conclusion

5.  All in all, just about in every document the Petitioner has submitted to this Honorable Court the child has also been proudly referred to as 劉XX (Lau XX).

The separation and the divorce of S’s parents, represents a critical moment, I think it should be clearly stated in every document who his father is and no one, absolutely no one in the world, should be able to find reason to doubt this fact, as it has been the case up to now.

6.  In order to protect the welfare of S, I respectfully petition this Honorable Court to give the necessary directions in the regard to the name issue.

I can appreciate the father’s concerns in this respect. But by the same token I can also understand the mother’s position, which was summarized in her solicitor’s closing as follows:   

Others: Change of Chinese surname of S

89. The Respondent also made a big issue out of S’s surname despite the Petitioner has reiterated quite a number of times that she would not change the full name of S as stated on his birth certificate [B2:881].

90. The Respondent also insisted that everyone including the child’s classmates and school teachers called him “S” instead of XX and he once lost his temper in public at the school playground when S’s form teacher called the child “Lau XX” through a loudspeaker, which resulted in huge embarrassment for himself and the child.

91. The so-called surname “Lau” is only for easy identification purposes while the true surname of S remains to be “H”.  All along the 3 Chinese characters are put under the given name in all official documents such as birth certificate [C2:1577] and even other record such as Child Health Record submitted by the Respondent on 13th January 2016.  The Chinese name has been widely recorded officially in the hospital and school.  It will cause a confusion for such change and great inconvenience in the local context.  The Petitioner has no intention to change both English and Chinese names of S as these form part of his history.  After all, it does not cause any prejudice to the Respondent at all.

S is Eurasian. It is important that both his European and Chinese heritage is acknowledged. I have already given a direction in relation to this matter as set out in paragraph 5 sub paragraph 41 above. In such circumstances I do not intend to make any further directions in relation to this matter.  

36. S’s general health appears to be good and his weight is reasonably stable. The father still maintains that this is due to his effort. As I have already indicated I do not necessarily accept this to be the case – but if I am wrong in this then the fact that the mother will only have one Saturday a month with S which means that the father will continue to have the ability to “feed S up” when he is in his care over a full weekend.

37. In so far as the weigh ins are concerned at BH I agree with the Social Welfare Officer that a weigh in every two months should be sufficient and I make a direction to that effect.   

38. It seems to be accepted that there is really no alternative at present but for S to continue to attend the X School. I agree that this is not ideal. It would be preferable for S to attend a wholly English speaking school such as an English Schools Foundation school. This is beyond the means of both parents at present. If their financial situation improves and if S is accepted then I agree that this possibility may be looked at again.    

39. I am told that the issue of S’s passport has still not been resolved notwithstanding my direction in relation to the same on the 29^th August. Consequently it is further directed that the mother do attend the Immigration Department in order to pick up S’s passport. The passport will be retained by the mother. A copy of the same shall be provided to the father within 7 days of receipt. I do not know whether the father has obtained an Italian or US passport for S. In the event that he has done so then likewise a copy of that passport shall be provided to the mother within the next 7 days or within 7 days of receipt. Further the original Child Health Record shall be returned to the mother by the father also within the next 7 days. 

What should be the arrangements for S during the school holidays?

How should single public holidays outside of the longer school holidays be divided?

40. The school holidays shall continue to be split on a more or less 50:50 basis. The school holiday shall generally commence on the last day of term and shall end on the day before term commences.

School Easter holiday

41. School Easter holiday 2016 – The school holiday is from after school on the 18 March until the 31 March. I have already given a direction that S shall be in the care of his father over the weekend as normal. On this occasion then the school holiday shall be from the 21 – 31 March inclusive – a period of 11 days. S shall be in the care of the mother for the first half of the holiday i.e. from when the father returns S to her care on Sunday 20 March until Saturday 26 March at 12 noon. S shall be in the care of his father from that time onwards until Thursday 31 March at 6:00 pm when S shall be returned to the mother.

42. Going forward S shall be in the care of his father for the first half of the Easter school holiday in 2017 and in all odd years thereafter and in the care of his mother for the second half. S shall be in the care of his mother for the first half of the holiday in 2018 and in all even years thereafter and in the care of his father for the second half.

Summer holiday   

43. The summer school holiday starts on the 14 July and ends on the 31 August 2016 – a period of 7 weeks or 49 days. S has been offered a place at the summer school run by the V Church from the 25 July to the 25 August – a period of five weeks. Lessons will be from Monday – Thursday from 10 am – 4:00 pm. I agree that in the absence of any planned overseas trips that it would be beneficial for S to attend this summer class. The father attends the V Church regularly every Sunday with S. Thus during this period I intend to swop the care arrangement so that the father shall care for S from Sunday to Thursday and the mother shall enjoy some fun time with S from Thursday evening until Saturday evening. In order to obtain some equality the mother shall also have the care of S for the period of time outside of summer school.

44. Therefore the mother shall have the care of S from the end of school on the 13 July until Saturday 23 July at 6:00 pm (10 days). During the period of the summer school S shall be in the care of his father from 6:00 pm on Saturday commencing on the 23 July each week until each Thursday at 6:00 pm commencing on the 28 July. S shall be in the care of his mother on Friday and Saturday returning to the father at 6:00 pm on each Saturday commencing on the 30 July. For this five week period S shall be in the care of his father for 5 days each week (25 days) and in the care of his mother for 2 days (10 days). S shall further be in the care of his mother from the 28 – 31 August (4 days). Thus S shall be in the care of his mother for a total of 24 days and in the care of his father for 25 days. I will bring the matter back for a review before the school summer holiday 2017.

Christmas school holiday 

45. The Christmas school holiday shall also be split 50:50 with the mother having the first half of the Christmas school holiday in order to ensure that she is able to celebrate Winter Solstice with S and the father shall have the second half – the intent being that he will have be able to celebrate Christmas with S. This shall be the arrangement going forward.

Chinese New Year holiday 

46. The Chinese New Year school holiday will also be split 50:50 with the mother having the first half so that the important days of the Lunar New Year are spent with S and the father having the second half. This shall be the arrangement going forward.   

Single public holidays

47. Single public holidays outside of the school holidays and weekends shall be alternated so that the father shall have the care of S on the 2 May. Consequently S shall stay over with the father on the 1 May, which is a Sunday and he shall be returned to the mother at 6:00 pm on the 2 May at Kwai Fong MTR station. S shall be in the care of the mother on the 9 June. He shall be in the care of the father on the 1 July. As this is a Friday the father shall pick up S from Kwai Fong MTR station at 6:00 pm on Thursday 30 June. S shall be returned to the mother as usual on Sunday the 3 July. S shall be in the care of his mother on the 16 September and in the care of his father on the 10 October. As this is a Monday the same arrangement will take place as on the weekend of the 2 May. S shall stay over with the father on the 9 October, which is a Sunday and he shall be returned to the mother at 6:00 pm on Monday the 10 October at Kwai Fong MTR station. And so on and so forth. 

The father’s three summonses

48. I have dealt with the substance of the father’s three summonses as set out above. But for the avoidance of doubt I reiterate as follows:

a) The summons dated the 12 February 2015 shall be dismissed in so far as it relates to the “school lunch” issue and a penal notice. The issue of interim care and control was dealt with previously. Final orders have now been granted by virtue of this judgment;

b) The summons dated the 10 June 2015 shall be dismissed. Please see paragraph 35 above;

c) The summons dated the 17 September 2015 shall be dismissed. There is no valid alternative for S’s schooling at present and consequently he will remain at the X Government School. The father also requested a psychological enquiry to establish the daily social conditions of S at school. I have explained previously that the court is not able to direct that such an enquiry be carried out and therefore this part of the summons shall also be dismissed.

49. For the avoidance of doubt I have considered the checklist when coming to my decision as follows:     

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

50.  By all accounts S has a close relationship with both of his parents and it appears that that he loves them both dearly.  

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

51. As indicated above S has significant physical, emotional and educational needs. These are currently being met by his parents as best they can, as set out above.

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

52. The mother reports that her relationship with the child is now closer than before whereas the father says that it is as close as it has ever been. There is nothing to indicate any difficulty in this respect from any of the reports filed. There is though some concern about the effect that the father’s behaviour may have on S from time to time. The father also complains that S may sometimes be left with the maternal Grandmother who cannot speak English and that this might lead to the child’s “alienation”. I have however noted from the Social Welfare Report that S can now communicate with his Grandmother in simple Cantonese. This is to be encouraged.

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

53. I accept that after a period of significant turmoil every effort should be made to keep S’s circumstances as stable as possible. 

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

54. S is nearly 8 years of age and he is said to be quite immature for his age. He comes from an Italian/Chinese background – but speaks minimal Cantonese. He does not speak Italian. He communicates in English. The father is concerned that he should also grow up with Western influences. This is understandable. Similarly the mother wishes S to be exposed to Chinese language and traditions. Again this is to be expected and encouraged.   

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

55.  This has been set out in full above. There is nothing to add.

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

56. The child may suffer some harm if his schooling is disrupted again. I do not accept the father’s arguments that the child is at risk if he stays with the mother because of the weight issue. Neither do I accept the arguments that she is not attentive to his homework and other educational needs.  

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

57. The mother complains that historically she has been subjected to several incidences of domestic violence and that she is afraid of the father. S does not appear to have been party to any of those incidences however – which the father denies in any event. S is not at all frightened of his father. There is no suggestion that S has been subjected to any violence from either parent or that this is an issue that needs to be considered further.

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

58. I accept that both parents are capable of meeting S’s basic needs.  

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

59. This is not a problem given that both parties live in relatively close proximity to each other.

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

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

60. Please see above.

Given the practical arrangements for S’s care what should be the final orders for custody, care and control and access etc.

61. Both parents are involved parents who love their son deeply. Both are “good enough parents”. Each has some difficulties. The mother recognises her limitations and has tried to address them whereas the father maintains that he is justified in the stance that he has often taken. This has led to many practical difficulties and problems. Consequently and somewhat reluctantly I have come to the conclusion that there shall be an order for sole custody and care and control of S to the mother with defined access to the father as set out above.

62. I have decided to make an order for sole custody given the very high level of continuing conflict between the parties and the fact that this does not appear to be one of those cases where an “aspirational” order for joint custody might work. Indeed this was tried previously and it did not work. This is a matter of some regret.  

63. Given that this is a child related matter I will make no order as to costs including all costs reserved. The petitioner mothers own costs shall be taxed in accordance with Legal Aid Regulations.

64. There shall be an updated Social Investigation report to be filed prior to the school summer holiday in 2017 – say by May 2017. Further there shall be liberty to apply generally.