G, by his next friend CHAN LUI LUNA v. BVR AND OTHERS

HCMP 1803/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1803 OF 2014

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D E C I S I O N

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Introduction

1.  The background of these wardship proceedings was set out in earlier rulings of this court, namely the 1^st Ruling dated 10 April 2015 and the 2^nd Ruling dated 29 April 2015.  In this decision, I shall adopt the same abbreviations in the earlier rulings, save where otherwise indicated.

2.  I will not repeat the background which had been set out in the 1^st Ruling.  Suffice to say that, the Mother was detained by the police on 4 June 2014 for working illegally in Hong Kong and G was admitted to the Po Leung Kuk residential care home.  When Pathfinders learnt of this, they applied for legal aid to represent G during the Mother’s detention, and these wardship proceedings were initiated on 24 July 2014 by Ms L Chan of Pathfinders as next friend of G.  Since then G has been a ward of this court.  G is now 7 years old.

3.  A local home (“Local Home”) was later identified for G and the foster parents, Mr and Mrs Kwong (“Foster Parents”), were first introduced to G on 4 August 2014 when G was still at Po Leung Kuk.  On 6 October 2014, this court approved an arrangement for G to stay with the Kwong family during weekends.  In light of the Foster Parents willing to take G in full-time, G began living with them at the Local Home since about 12 February 2015.

4.  The trial of these proceedings was originally fixed for 10 days, 6 days in May 2015 and another 4 days in July 2015 (“Trial”).  The 1^st Ruling was in respect of P’s application for leave to provide the papers in these proceedings to a child psychiatrist as P was challenging the CP Report, as defined later in this decision.  I did not allow this application.  The 2^nd Ruling was in respect of P’s application for a DNA report to determine G’s ethnicity, which I did allow, but so far as I am aware, no report had been submitted.  In any event, both applications were made by P shortly before the Trial was to commence.

5.  At the commencement of the Trial, the parties’ Counsel indicated that the parties had been discussing and requested further time. Eventually, the matter was resolved by the parties consenting to an order on 5 May 2015 (“Consent Order”), and the remaining Trial dates were vacated.

6.  Prior to the Trial, there had been the following reports called by this court:

(i) Social Welfare Report dated 29 September 2014 (“1^st SWR”)[1];

(ii) A further Social Welfare Report dated 4 November 2014 (“2^nd SWR”)[2];

(iii) Report concerning local home arrangements dated 4 December 2015 (“Home Report”)[3];

(iv) Po Leung Kuk Incident Report dated 8 January 2015 (“PLK Report”)[4];

(v) Clinical Psychologist Report dated 16 January 2015, which was prepared Ms Lim Kwai Tat Amanda (“Ms Lim”), a clinical psychologist of Social Welfare Depart (“CP Report”)[5];

(vi) An updated Social Welfare Report dated 9 March 2015 (“3^rd SWR”);

(vii) A report submitted by ISS dated 27 March 2015 (“ISS Report”).

7.  Under the Consent Order, among other things, G is to continue to remain a ward of this court, and he is to continue to reside at the Local Home.  The Mother was allowed access to G under the supervision of the ISS staff every Monday, Wednesday and Saturday in the manner set out in the Consent Order.  The Mother was further ordered to attend parenting counseling provided by ISS.

8.  The arrangements for the Mother’s access to G under the Consent Order were subsequently varied at a direction hearing on 4 November 2015 (“Further Access Order”).  Under the Further Access Order, the Mother’s access was varied to take place every Tuesday, Friday and Saturday in the manner set out therein.

9.  Pursuant to the Consent Order and the Further Access Order, ISS is to prepare monthly reports (“Monthly Reports”) which covered the following subjects:

(i) G’s general well-being;

(ii) The Mother’s access to G;

(iii) The Mother’s counseling and parenting classes;

(iv) Observations and recommendations including future access of the Mother to G.

10.  So far, ISS has submitted 15 Monthly Reports covering the period from May 2015 to July 2016.

11.  On 3 May 2016, the Mother issued a summons for, among other things, G to cease to be a ward of this court.  This led to Ms L Chan issuing 5 summonses the next day, on 4 May 2016, one of which was for leave to Ms L Chan to, obtain a parenting capacity assessment (“PCA”) to be carried out by an independent, unaffiliated, Hong Kong registered social worker in accordance with the draft instructions annexed to the summons, and that the social worker is to be selected and instructed by Ms L Chan (“PCA Summons”).

12.  In the PCA Summons, the PCA was stated to include, among other things:

(i) Collection of relevant information about the circumstances of G and the Mother as well as G and the Mother’s immediate and/or extended family;

(ii) G’s views;

(iii) Analysis of G’s development needs;

(iv) Assessment of the Mother’s ability to respond appropriately to those needs;

(v) Recommended plans for the G’s interim and long term future care.

13.  Both the Mother and DSW oppose the PCA Summons.  ISS also does not consider it necessary to conduct a PCA.

14.  Counsel Mr Shaphan Marwah appeared for Ms L Chan, Ms Monica Chow appeared for the Mother, Ms Carmen Poon appeared for DSW and Ms Frances Irving appeared for ISS.

The Evidence

15.  The PCA Summons was essentially supported by Ms L Chan’s 4^th affirmation filed on 26 May 2016.

16.  Mother had filed her 7^th affidavit on 20 June 2016 in opposition to the PCA Summons.  Ms Fung Hing Sum Fanny of SWD filed her 3^rd affirmation on 15 June 2016 in opposition to the PCA Summons.

17.  The Monthly Reports have been written by two staff members of ISS and they have both affirmed and confirmed the contents of the Monthly Reports are true and accurate.

18.  The Art Therapist Ms Pui Hang Wan at ISS who has been providing art therapy to G has affirmed and confirmed the Monthly Reports in so far those parts concerning her therapy sessions with G are true and accurate.

19.  The Foster Parents have in their respective affirmation provided information on G’s day to day life with them.

20.  Finally another staff member of ISS, Li Yeuk Bing Rachel has sworn an affidavit on behalf of ISS stating that ISS does not consider it necessary to conduct a PCA.

21.  There were also other affirmations from the parties placed in the paginated bundles relating to the Trial and also the Mother’s present application for de-warding G.

Discussion

22.  It was P’s case that there was insufficient evidence before the court on 3 key issues (the “Key Issues”):

(i) G’s developmental needs;

(ii) The Mother’s capacity to meet those needs; and

(iii) The advantages and disadvantages of alternative care plans.

23.  Mr Marwah had submitted that the reports presently before the court would not provide an answer.  In brief:

(i) The SWRs[6] contained a series of factual observations, without assessment of risk or analysis of the Key Issues. There was nothing to link those factual observations to the recommendations.

(ii) The CP Report[7] was an assessment of psychological evidence of abuse and neglect. The Mother’s parenting capacity was considered only briefly.

(iii) The ISS Report and Monthly Reports[8] had been updating reports supporting recommendations for access.  They did not purport to assess the G’s needs and the Mother’s parenting capacity.

24.  I have set out in my 1^st Ruling the brief background which led to the Mother being referred to the Pathfinders by ISSHK in early March 2010 when G was about 10 months old but after June 2010, Pathfinders lost contact with the Mother and G until January 2013 when the Mother contacted the Pathfinders for assistance.

25.  Then, after the Mother was detained for working illegally in Hong Kong in June 2014, as mentioned earlier, G was admitted to Po Leung Kuk residential care home and Ms L Chan then issued the present wardship proceedings on behalf of G.

26.  The Pathfinders had made some serious allegations about the Mother, such allegations had included (i) failure to supervise; (ii) physical abuse; (iii) failure to provide adequate food; (iv) making false reports of abuse and neglect to social workers; (v) verbal abuse and threats[9].

27.  It was also most unfortunate that during G’s stay at the Po Leung Kuk that there were some incidents which caused grave concern to this court and all concerned and result in various orders being made by this court on 6 October 2014.  Anyway, the Mother was not to be blamed for such incidents.

28.  Whatever allegations the Pathfinders had made about the Mother related to the periods when G was under the care of the Mother previously :-

(i) From G’s birth in April 2009 to about June 2010

(ii) January 2013 to about June 2014 when the Mother was detained by the police (with the exception of the period 6 July 2013 to 18 July 2013)

29.  In particular, the allegations appeared to be mostly in relation to the period from early July 2013 to about June 2014.  On 6 July 2013 to 18 July 2013, G was arranged by the Pathfinders to be looked after by a temporary guardian, a Mr Yau Leung Choi (“Temporary Guardian”).

30.  Although there was evidence that the Pathfinders had made a report to the police on 9 July 2013 in relation to suspected child neglect/abuse, it would appear that the police had found no evidence of child neglect[10].

31.  The 3 SWRs were prepared by Ms Virginia Chan of SWD.  Ms Chan was aware of the allegations made by the Pathfinders[11].  It was, however, Ms Chan’s recommendation that the Mother be granted G’s custody, care and control. 

32.  The CP Report was in fact prepared by Ms Lim upon joint instructions given by P, the SWD and ISS for a psychologist assessment to ascertain whether G had been abused as alleged by Pathfinders, such allegations at that time had included neglect, physical abuse, psychological abuse and also sexual abuse[12].

33.  Ms Lim had found that G presented to have a normal psychosocial profile in general, without any obvious sign of post-abuse symptoms, and he was observed to have a strong and intimate attachment to his mother[13].  Ms Lim had pointed out that since July 2013, G had to experience ongoing and drastic changes or disruptions, as he had been suddenly separated from his mother twice within 11 months, and to a number of changing living environments and caretakers, namely the Mother’s home, the home of the Temporary Guardian, Po Leung Kuk and the Local Home.  Further, since April 2014 onwards, G also had to undergo incessant assessments from different professionals in different setting on similar issues[14].  Ms Lim concluded that restoration of G to the Mother’s care was highly recommended but Ms Lim was at that time concerned about the Mother’s insufficient child development knowledge and inadequate parenting approach[15].  

34.  In the ISS Report, ISS took the view at the time that, among other things, although there was an element of intimacy and attachment between the Mother and G, the Mother had not shown a strong capacity, willingness, and sense of direction in caring for G, and had recommended that G to continue to be a ward of this court, and to reside full time in the Local Home, while the Mother to continue to have set and supervised access to G weekly, and that such arrangements to continue for next 6 months from April to September 2015.

35.  The 3 SWRs, the CP Report and the ISS Report were all prepared prior to the Consent Order.  There was no application at that time by P to seek a CPA report, even though as mentioned earlier, P had made an application for the documents herein to be provided to a clinical psychiatrist as P was challenging in particular what Ms Lim had said in the CP Report.  

36.  Mr Marwah had referred the court to a number of authorities.

37.  It was said by Wall LJ in Re M-H (Assessment: Father of Half-Brother) [2007] 2 FLR 1715 (CA) that :

“... the exercise of a judicial discretion in a care case is an amalgam of expertise from a number of disciplines, an essential part of which is or should be competent social work assessments which the judge can then appraise and accept or reject ... Accordingly, in my judgment, to do proper justice to [the child’s] interests in the instant case, the judge required the thorough independent social work input by means of a viability assessment which [the appellant] had sought. The judge denied himself that input whilst at the same time recognising that the local authority had failed to provide it.[16]”

38.  Mr Marwah also referred to the more recent case of Re Z (A Child: Independent Social Work Assessment) [2014] EWHC 729 (Fam) where it was said[17]:

“In any case in which a local authority applies to the court for a care order, the assessment of a parent is of critical importance. That assessment will be a key piece of the evidential jigsaw which informs the local authority's decision-making, in particular with respect to the formulation of its final care plan. If the assessment is deficient then that is likely to undermine the reliability of the decision-making process. It follows, therefore, that any assessment of a parent must be, and must be seen to be, fair, robust and thorough.”

39.  Both the above cases were public children law cases, namely care proceedings instituted by the local authority.  In Re M-H, the local authority sought a care order and to place the child for adoption outside the natural family, even though the step-father of the child had put himself forward as a potential carer.  The Court of Appeal allowed the appeal by the step-father and set aside the care order and suspended the placement order, and ordered an independent viability assessment of the step-father.

40.  In Re Z, the local authority applied to the court for a care order and a placement order for Z, after a series of non-accidental injuries sustained by Z caused by her mother, and that Z’s father allegedly failed to recognise or respond appropriately to her injuries. The issues before the court included whether the court should allow the father’s application for an independent parenting assessment.  In that case, Judge Bellamy had expressed concern about the quality of the social work assessment of the father, and more generally as to whether he had been treated fairly, and also the quality of the local authority’s analysis of the options.  It was in the particular circumstances of that case that he found a parenting assessment of the father by an independent social worker was necessary[18].

41.  As for the 3^rd authority relied on by Mr Marwah, R (on the application of AB and SB) v Nottingham City Council [2001] EWHC Admin 235, this concerned an application for judicial review of what was alleged to be an ongoing failure by the defendant council to assess and provide for the claimants’ needs. In that case, it was found that the defendant council had failed to discharge its duty under s 17 of the Children Act to make a care assessment of a child in need.

42.  The circumstances of the present case are quite different from the above cases. In particular, the present case is different from Re M-H, or Re Z in that in those two cases, the parent/potential carer had himself wanted an assessment on him to be carried out by the local authority in order that he could assume care of the child concerned, instead of the child being placed for adoption. 

43.  Even though Ms L Chan has included adoption as an option available to this court when considering the plan for G’s future care arrangements[19], in light of the present evidence from SWD, ISS and also Ms Lim of the strong intimacy and attachment between G and the Mother, this appears to this court to be only an option of last resort.  In particular, no one had in fact made an application for a care order for G and/or for G to be placed for adoption.  

44.  In any event, in the present case, the Mother does not want, and indeed strongly opposes, any further assessment, whether PCA or not, whether by Ms Lim or another.  

45.  Mr Marwah had referred to the social work guidance which has been developed in the UK[20] and in Hong Kong[21] to ensure that parenting assessments meet that high standard, and submitted that they should include a systematic analysis of 3 ‘domains’: (i) the child’s developmental needs, (ii) parenting capacity and (iii) family and environmental factors, which is the heart of the ‘Assessment Framework’ model.

46.  Mr Marwah had annexed an example of a systematic assessment is provided in the template “Core Assessment Record”[22] in his submissions.  This is in fact similar to the “Assessment Framework” in Annex IV to Chapter 8 of the SWD’s Procedural Guide for Handling Child Abuses Cases[23].

47.  Further, as pointed out by Ms Poon, the investigation and structure in the 1^st SWR was akin to the sample format in Annex V to Chapter 8 of the SWD’s Procedural Guide.

48.  Mr Marwah submitted that this is a classic case of neglect by a parent with a very limited understanding of good parenting, and that P seeks a CPA Report as the court would be greatly assisted by an expert assessment.

49.  Ms Chow submitted that none of the reports currently before the court supported P’s claims of abuse or neglect.  P had sought a preliminary fact-finding hearing which was not allowed by this court.

50.  In fact, P’s position has somewhat changed.  Initially, what P sought in the PCA Summons was a PCA by an independent social worker, but it seems the present person proposed by P is not a social worker but a psychologist Dr Anita Leung, who is in private practice.

51.  Mr Poon submitted if the PCA is to be carried out by a psychologist, there is no reason why Ms Lim should not be instructed to carry out the PCA.  This appeared to be acceptable to P, but the court was told that the Mother was not willing to undergo any PCA or other assessment, whether by Ms Lim or another.

52.  It is of course open for P and/or the other parties to make submissions on the Mother’s stance at the time of the trial in relation to the Mother’s de-warding application.  In fact, it seems, contrary to the Consent Order, the Mother had earlier this year failed to attend parenting counseling sessions and only resumed during the month preceding the present hearing.  The Mother tried to give various reasons for her failure.  This is again a matter which the parties can make submissions on eventually at trial.  This court had in fact emphasized to the Mother at the hearing the importance of compliance with court orders and the possible consequences if she fails to do so.  One awaits to see whether the Mother will continue with the parenting counseling sessions. 

53.  Although the Mother seems to have completed four year of secondary education in the Philippines, she was observed by Ms Lim to be timid with limited social exposure and due to her inadequate proficiency in English, she might find difficulty in expressing herself precisely[24].  The Mother was also said by Ms Lim to be very inadequate in her knowledge related to child development and parenting skills[25].

Conclusion

54.  Having considered all the above, as I have said previously, there is really no “perfect” parent.  I do not see any point in compelling the Mother to go through a PCA whether by Ms Lim or another.  Notwithstanding Mr Marwah’s submissions, in my view, there is sufficient evidence on the Key Issues in the present reports before this court and also on the 5 matters which P would like to include in the PCA as stated in P’s Summons.  I do not find it necessary to order a PCA.

55.  I would also add that G has now been residing with the Foster Parents for some one and half years since 12 February 2015[26], and the Mother has been having regular access.  G started schooling at a local kindergarten on 1 December 2014 and graduated on 11 July 2015.  He started attending primary 1 at a Government Primary School in September 2015 which he completed and has just started primary 2 at the same school this month.

56.  G has already been subjected to various assessments in the past, and as stated by Ms Lim in the CP Report, G should be freed from additional assessment from any professional unless with reasonable ground.  I do not find that there are sufficient grounds to subject G to a PCA at this stage, nor am I satisfied that this is in his best interests.

57.  In light of what I have said above, I have come to the view that P’s Summons should be dismissed, and accordingly I make this order.  I will order costs be reserved, and there be legal aid taxation for both P and the Mother.