CDYF v. PYS

CACV 189/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 189 OF 2010

(ON APPEAL FROM HCMC NO. 7 OF 2010)

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BETWEEN

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J U D G M E N T

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Hon Hartmann JA (giving the judgment of the Court):

1.  This appeal, which has been brought before us as a matter of urgency, looks primarily to the future education of a 14-year old boy: ‘A’. His father, who presently has care and control of the boy, sought leave from the Court of First Instance for him to attend a private boarding school in the United States. The mother opposed that application, submitting that ‘A’ should remain at his present school in Hong Kong. In addition, the mother sought orders giving her care and control of ‘A’ with the father being denied access. The matter was heard before Deputy Judge Carlson on the 26th and 27th of August 2010, his judgment being handed down three days later. In that judgment, permission was given for ‘A’ to attend the school chosen for him by his father in the United States. The mother’s application for an order that she be given care and control of her son was dismissed. The mother has appealed both decisions.

2.  The mother and father, as we will call them, were married to each other in Hong Kong in July 1988.  The mother is a Korean national.  The father apparently can trace his family history back to the Ming imperial household but was educated, in part at least, in the United States.  ‘A’ was born on 28 January 1996.

3.  In 2007, as a result of unhappy differences in the marriage, the father instituted divorce proceedings against the mother.  The following year, it was agreed that the best interests of ‘A’ lay in both parents sharing his custody but the father having care and control of the boy with the mother enjoying rights of access.  This agreement was encapsulated in an order of the Family Court.

4.  Whatever may have been the position when ‘A’ was an infant, all objective indicators point to the fact that when the marriage of the mother and father broke down the relationship between the mother and her son was subject to a number of difficulties.  Early in the divorce proceedings, the Official Solicitor became involved in order to represent the best interests of ‘A’ and reported that, while the boy felt secure and relaxed with his father, regrettably he was less than happy in the company of his mother, indeed, because of the mother’s apparent swings of mood, he was nervous to be with her.  In order to try and heal the situation, professionals in the field were employed but seemingly to little avail.  In an order dated 16 January 2009, the Family Court ordered that the mother’s access to her son should be suspended.  Access has not since been reinstated.  Regrettably, therefore, the mother and child have not spent time in each other’s company the past 18 months.

5.  It is an understatement to say that the mother has not been content with the situation.  There have been numerous court proceedings and, so we understand, incidents outside of court.  In his judgment, Deputy Judge Carlson observed that “it is rare, even in this jurisdiction, to find a more fraught, distressing and acrimoniously contested case”.

6.  Until the orders of Deputy Judge Carlson, ‘A’ had been attending a local international school in Hong Kong and, from all reports, had been doing well there both academically and on the sports field.  The father, however, was of the view that his son could do better at a prestigious boarding school in the United States, one that may give the boy a greater chance of entering one of the Ivy League universities.  The father had himself attended both Harvard and Yale and his own father had been a Harvard scholar too.  There was therefore the desire for ‘A’ to follow in the family tradition.

7.  We pause at this juncture to say that the Official Solicitor appeared at the hearing before Deputy Judge Carlson and has appeared before us today.  The Official Solicitor supported the father’s application on the basis that ‘A’ wanted to attend boarding school in the United States and that, all matters considered, it was in the boy’s best interests.

8.  Before looking to the mother’s grounds of appeal, something briefly should be said of the function of this Court.

9.  This Court does not hear the matter afresh.  It may only intervene if there has been a material misdirection as to law or if, in weighing all considerations concerning the best interests of ‘A’, the trial judge has taken into account matters which are irrelevant or has failed to take into account matters which are relevant or has otherwise arrived at a conclusion that is plainly wrong.

10.  It must also be emphasised that this Court, along with the trial court, is concerned with the boy’s paramount best interests.  It is not concerned with any asserted ‘rights’ of the parents to dictate how ‘A’ should be raised.

11.  As to the mother’s grounds of appeal, in his judgment Deputy Judge Carlson referred to three grounds that presumably had been argued before him: see para. 11 of the judgment.

12.  It was recorded that the mother objected to her son being removed from Hong Kong because she had not yet been able to restore a close and loving relationship with him.

13.  In this regard, however, as Deputy Judge Carlson was aware, there was a long history of previously failed attempts to mend the relationship.  By way of illustration, in a letter dated 14 December 2008 Dr Susan Mistler, a psychologist, expressed the opinion that any chance of healing the relationship between mother and son was tied absolutely to the mother’s willingness to engage in a supervised therapeutic process but unfortunately the mother had not been willing to do so.

14.  In any event, we observe that the order of Deputy Judge Carlson does not lead to a permanent removal of the son from Hong Kong.  The order gives permission for him to attend boarding school in the United States, it being implicit that he will return regularly to Hong Kong for school holidays and the like.  If there is to be any chance of healing the relationship between mother and son, it may still be attempted while the boy is back in Hong Kong.

15.  The mother’s second objection, as recorded by Deputy Judge Carlson, was based on her assertion that the way of life in America is too liberal and in many ways unwholesome.  But, as is implicit in the judge’s judgment, ‘A’ was to be sent to a prestigious boarding school where he would be well cared for in respect both of his physical well-being and his moral well-being.

16.  The mother’s third objection, as recorded by Deputy Judge Carlson, was based on her assertion that her son was already attending an excellent school in Hong Kong and doing well there; that he was Asian and that his cultural roots lay in this part of the world.

17.  These were matters recognised by the judge.  However, as he was entitled, he also took into account that the father had himself been educated (in part) in the United States and that he wished for his son to follow in his footsteps.  ‘A’ is now 14 years of age and able to express his own views.  In this respect, the judge took into account that ‘A’ himself wished to go to school in the United States, following in the footsteps of his father and indeed his grandfather.  As to his Asian roots, Deputy Judge Carlson took specific note of the fact that ‘A’ will be continuing his Mandarin studies and in this regard will receive private tuition from the head of Chinese at the school who is himself a native Mandarin speaker.

18.  In our view, the judge was entitled to take into account, as he did, that in removing ‘A’ to boarding school in the United States, he was being removed from the poisoned atmosphere that presently exists between the parents which, most regrettably, has clearly impacted on ‘A’ too.

19.  Before us this morning, the mother has argued that the trial judge did not conduct the hearing fairly.  She has spoken of the fact that there was not a Korean interpreter provided and that this worked to her disadvantage.  As it transpires, there was an interpreter provided but it seems that the interpreter was qualified only to work from Korean into Cantonese and vice versa.  It meant that a second interpreter was required.  This the mother found distracting.  Before us she described it as sounding like a marketplace.  But the fact remains that interpretation was provided.  From time to time this system of double interpretation is necessary.  It occurs in all our courts.

20.  Before us, the mother has placed emphasis on the fact that, so she asserts, Deputy Judge Carlson did not permit her to make submissions as to the character of the father.  A number of these submissions were advanced before us this morning.  It is suggested that the father is a criminal, a forger, that in some unspecified manner he kidnapped the mother into marriage and that he possesses a number of intimate fallibilities which prevent him from being a proper and responsible parent.

21.  These are matters which have been aired previously in a number of court hearings.  They have not resulted in any change of care and control.  As the trial judge recognised, the sole issue before him was the paramount best interests of ‘A’ and it was apparent to him that the proposals made by the father, supported as they were by the Official Solicitor, were in the boy’s best interests.

22.  Nothing has been put before us this morning to suggest that the mother was denied a fair hearing before Deputy Judge Carlson.

23.  As we have said, in addition to opposing the removal of her son from Hong Kong for purposes of attending school in the United States, the mother also sought an order denying the father care and control of the boy, indeed denying him access to the boy, care and control to be vested with her.

24.  It is true that the judge did not devote a great deal of time to this issue.  With respect to the mother, he was under no obligation to do so.  As the judge recognised, if he was to accede to the mother’s requests, he would be going against orders made in the Family Court which had been upheld in previous rulings of this Court.

25.  No new grounds were put before Deputy Judge Carlson compelling him to reconsider the issue of care and control.

26.  Matters concerning the mother and father and their son have come before this Court on two occasions recently.  On both occasions the mother was advised that, if she sought to rebuild a relationship between herself and her son – for objectively, that relationship has been grievously damaged – she should place herself in the care of medical experts and through those experts, with patience and sensitivity, seek to secure her son’s trust again.  Because, once that trust has been secured, the courts will act accordingly.

27.  However, as matters stand, there is in our judgment no basis for criticising the orders made by Deputy Judge Carlson.  The appeal must therefore be dismissed.

28.  The father has not been formally represented at this hearing.  The issue of costs does not arise.

29.  Before concluding, it must be mentioned that, although, when this appeal was first launched, no order was sought to prevent ‘A’ leaving Hong Kong pending the result of this appeal, we were informed yesterday by the Official Solicitor that in fact ‘A’ was scheduled to leave Hong Kong early today, seemingly before the commencement of this appeal.  To ensure that this hearing remained effective, a direction was given as a matter of urgency yesterday evening that ‘A’ should not leave Hong Kong until further order.  It appears that the direction may have been ignored.  This is a matter that will have to be investigated.

Hon Cheung JA (giving decision of the Court):

30.  There is a further order that we will now make concerning the father.  In order to consider whether the father should be committed for contempt of Court for bringing the child out of Hong Kong despite the Court’s direction that the child was not to leave Hong Kong without further order,

(1)    The father is required to file an affidavit within 10 days to explain why he has taken the child out of Hong Kong despite being informed by the Official Solicitor of the Court’s direction.

(2)    Mayer Brown JSM is to file an affidavit within 10 days as to when it received the Court’s direction given yesterday that the child should not leave Hong Kong until further order.  It is further required to explain why it did not inform the Court before today that the child was already scheduled to leave Hong Kong this morning.

(3)    The Official Solicitor is to file a report within 10 days concerning the steps she has taken to notify the father of the Court’s direction upon receipt of the Court’s direction given yesterday.