LMM v. LKKV

FCMC 1062 / 2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 1062 OF 2013

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JUDGMENT
(Schooling)
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Introduction

1.  The issue that I am asked to determine in this case is a very narrow one – should K, who is now 9 years of age, become a day pupil or a weekly boarder at X International school, with effect from the end of August 2015? The father asks that he be enrolled as a weekly boarder and the mother insisted initially that he be a day pupil. On the 10 February 2015 and in the absence of any agreement between the parties, I directed that the father do accept the boarding school place for K, without prejudice to any final determination on the issue. Towards the end of this hearing the mother’s position softened somewhat and she suggested that K be a day pupil for the time being and that the situation be reviewed in a year or so time.    

Background

2.  However although the issue is a narrow one, it is played out against increasingly high levels of antagonism between the parties. As things stand at present K is refusing to see his father following an alleged incident in November 2014, when the mother says that the father abused K. I will not go into the details of that alleged incident here, but suffice it to say that a Multi Disciplinary Case Conference found that no abuse had been established. Notwithstanding that and despite a clear indication from the court, K has refused to see his father or his paternal grandparents since. The father claims that the mother has successfully alienated K from him. The mother says that it is K’s choice not to see his father and that his wishes should be respected. Consequently there are further applications pending including contempt of court proceedings issued by the father against the mother dated the 4 March 2015 and an application by the mother to vary the order for joint custody and shared care to sole custody and care and control to her with supervised access to the father. This is dated the 16 January 2015. The father in turn has issued an application that the original access arrangements (presumably the shared care order) do stand. This is dated the 30 December 2014. I have also indicated to the parties that given the nature of the allegations made that there may also need to be a specific issues hearing to determine the truth or otherwise of the mother’s allegations. In the middle of all this stands K.

3.  In my judgment of the 5 December 2013 I set out some of the litigation background as follows:

The litigation to date

6. a) On the 8 October 2011 the mother issued proceedings for divorce based on two years separation – just over a week after leaving the father. These proceedings were initially defended. On the 4 December 2012 the parties eventually compromised the issue of the suit and it was agreed that the divorce would proceed on the basis of one year separation with consent. A second divorce petition was accordingly filed.

 b) The mother did not issue an application for interim custody and care and control at an early stage. [Consequently K continued to live with his father].Instead on the 14 December 2011, she issued an ex parte application for access and she was granted an order in terms. The order of the 16 December 2011 gave her some access over Christmas and weekly access thereafter on Monday’s, Tuesday’s and Wednesday’s from after school until 7:00 pm.

  c) On the 9 January 2012 a further order was made giving the mother access over Chinese New Year and also on every alternate weekend from 6 pm on Saturday to 6:00 pm on Sunday. Again an order was made more or less in the terms requested by the mother.

  d) On the 29 June 2012 the father issued an application seeking to suspend access because of an incident in which the father alleges that the mother behaved in a bizarre and aggressive fashion towards K.

  e) Following receipt of a short updated Social Investigation Report, access was not suspended. Instead an order was made whereby the school summer holiday was shared on a week on week off basis. This order is dated the 14 June 2012. The father says in his subsequent affidavit that it had never been his intention to permanently suspend access.

  f) On the 25 October 2012 an order was made granting the father interim custody and care and control of K after the mother refused to return K to the father’s care following access. The father alleges that the mother was emotionally unstable at that time.

  g) On the 7 November 2012 an order was made granting the wife maintenance pending suit of HK$40,000 per month and litigation funding of HK$10,000 per month.

  h) In February 2013 the mother accused the father’s domestic helper of abusing K. She reported the matter to the police without discussing it first with the father. As a result K was hospitalized for approximately one week. There was a police investigation. The allegations were not proven and the multi disciplinary case conference held following the incident found that the case was not established as a child abuse case. Nevertheless the domestic helper left the father’s employ. Whatever the rights and wrongs of this particular situation it is likely that this will have had a very traumatic effect on K. He also lost the only other long term stable adult influence in his life as a result.  

  i) Shortly thereafter on the 6 March 2013 the mother applied for interim joint custody and care and control. This was refused given the fact that the trial on all matters was due to be heard in June 2013.

7. Constant themes throughout the pleadings, in addition to those already identified, include the father’s claims that the mother is mentally and emotionally unstable. He says that she coaches the child and is guilty of manipulation. He also alleges that the mother had an ulterior motive in that he believes that she wants to use K to get more money from him.  The mother for her part maintains that the father’s care of K is not adequate and she also accuses him of being manipulative. …

4.  I also referred to a number of experts reports in my judgment of the 5 December including Dr P’s who I quoted from at length given her very insightful comments into K’s emotional state. I should add that I was truly appalled when this matter first came back before me to find that the parties had not arranged for K to have continued play therapy with Dr P – notwithstanding my very clear indication to the contrary in the judgment. This was the second time that play therapy had been unilaterally stopped. To my mind, given the contents of the report, it almost belied belief that any caring parent would stop the play therapy when their child was so obviously in need of psychological support. Dr P is quoted as follows in the judgment:   

Dr P’s reports

54. Dr P filed two short reports arising out of her observations of play sessions with K. Although my understanding had been that the play therapy would continue after the hearing was adjourned I was very concerned to learn that K had not had the benefit of seeing Dr P in the interim. That situation has now been rectified. For the avoidance of doubt K should continue to see Dr P pending further order.

Report dated the 14 August 2012

55. Dr P commented as follows:

In general, based on my observations of K, he is an introverted child and would either avoid or internalize his negative emotions and experiences.  He does not have the internal competencies to deal with such profound stressors in his world now.  If the parents are not astute to his needs and concerns, K will suffer from internalizing behaviors such as depressive moods, withdrawal or using inappropriate behaviors such as regression or psychosomatic behaviors to express himself.  This could adversely affect his normal development and coping towards his parents’ separation.

My view is that K is adversely affected by the separation of his parents and this may be attributed to the lack of insight and discretion from both parents to protect K, a child who is only turning 7 years old from their acrimonious relationship.  K appeared to have a warm and loving relationship with both parents.  Therefore like all children in divorce, he longed to get his parents back together.  K is burdened and suffering from being caught between both parents.  Due to K’s age, he is not able to fully express or comprehend his feelings and understanding of the stressful situations at home or the actions taken by the adults.  K will continue to feel vulnerable and overwhelmed by these stressors and may have problems with healthy adjustment if both parents do not make concerted effort to protect K from their ongoing conflicts.

My recommendation is that K will continue to benefit from play therapy sessions; at least through the legal proceedings since there can be much unsettling issues and situations arising from them which can impact on K.  The session will continue to focus on building his competencies in adjustment to his parents’ separation, his acute sensitivities towards parents’ conflicts, mood and feelings as well as his general developmental needs.

I would also continue to work with both parents to guide them in protecting K from the acrimonious situation so that K can develop normally, gain relief from the tension and anxiety, and finally, adjust to the inevitable changes in his family.

Report dated the 26 September 2013

56. Dr P added:

3. Since then, both parents reported a few critical incidents such as the child abuse case, hospitalizations and accident in school that could have impacted on K and his well being.  There are endless reports from each parents regarding miscommunications and mistrust over caring for K.  Legal letters were sent to one another each accusing of the other of negligence.  The sad reality is that both parents are not looking at K’s well being as their priority; an innocent and helpless child who must be protected from their differences; instead, each of them appeared to be putting K at risk of emotional dys-regulation.

4. It was easy to build rapport with K.  He remembered the play space and our relationship.  K was very engaged as usual.  It is disappointing to see that K’s needs, experiences and emotions had not changed since the last time we met which was 11 months ago.  He continues to exhibit overwhelming negative emotions.  His play and his thought processes continued to be disorganized and unfortunately more chaotic and aggressive.  This is obviously a reflection of his world now – astute to his parents’ conflicts and his family situation.

5. When K first arrived for his therapy, he appeared to be preoccupied, cautious and not spontaneous.  He was serious and only chose to play with one type of toy (puppets) and one play theme (destruction).  In his play, he also exhibits very flat affect and emotional reaction.  I am concerned that K may already have been traumatized by this high conflict divorce.  It is important to note that children of K’s age lacks the ego strengths and cognitive emotional inhibitors necessary to cope effectively with the impact of trauma, in this case the trauma of the divorce and the on going conflicts.  There are many ways to respond to one’s traumatic experiences and K’s responses to these critical events appeared to be emotional numbing where he demonstrated constricted emotions.  This may explain his play behaviors and general affect.

6. Throughout his 7 sessions of play therapy, his overarching play themes were aggression and conflict.  In every session, the recurring play scene is that he would set up scenes of war, using the same few puppets, with each team having different numbers of helpers to fight and destroy each other.  A few occasions, he labelled the puppets as his mother, his father and Uncle D[mother’s former partner; with his father in one camp and his mother and Uncle D as the other.  At other times, he will use another puppet to represent himself while the other puppets attack him.  It was heart breaking to watch his helplessness and frustrations in dealing with his reality.  It is important to note that many children do exhibit anger and aggression after divorce; however, these emotions should subside after a few months.  In addition, research has shown that the more a child is drawn into the marital conflict, the more emotional upheaval the child will experience (Amato & Booth, 1996; Wallerstein, 1991).  In this case, K has been caught in his parental conflict for more than a year, he is likely to be confused, frustrated, angry, and have loyalty conflicts.

7. In one of earlier sessions, K came into the playroom and reported to me that he would like to stay with his mother.  Only when I reassured him that I would not be the one making the decision and that our time together is not for him to take sides; that he appeared to be relaxed and can continue to play.  During this session, I confronted Ms L, she informed that K would consistently make this comment whenever he is with her.  Again, this reflects on the loyalty conflicts that K is suffering between his parents.  Even if Ms L has not consciously coach K to say this, K may already have his divided loyalties and will tell each parent different and opposing things about what they want.

8. Similar to the previous times I met with K, he continues to test boundaries and limits in the playroom.  Ms L also reported that K appeared to be rigid with rules and be inflexible with changes.  She also reported that he might have some social difficulties as well.  When K was younger, she was concerned if he was on the Austistic Spectrum.  However, I am more inclined to look at K’s behaviors as a reaction to this on going trauma.

It is important for the Court to refer to my previous brief report on K (Dated: 14 August 2012) as K has regressed and still exhibits all the behaviors observed a year ago.  My recommendations remains and should be enforced.  K still does not have the internal competencies to deal with such profound stressors in his world now.  If the parents are not astute to his needs and concerns, K will suffer from internalizing behaviors such as depressive moods, withdrawal or using inappropriate behaviors such as regression or psychosomatic behaviors to express himself.  This could adversely affect his normal development and coping towards his parents’ separation.

My view is that his parents are unable to separate their roles as parents and spouses.  They can’t peacefully make decisions for K’s welfare and negotiate issues related to K, hence putting K at an increased risk for problems.  In addition, with their continual open conflict between each of them, K feels that he has to take sides, this increase K’s emotional turmoil and also the feeling of loss and abandonment, perceiving that he is losing his non-custodial parent.

My recommendation is that K will continue to benefit from play therapy sessions for an extended period of time.  The session will continue to focus on building his competencies in adjustment to his parents’ separation, his acute sensitivities towards parents’ conflicts, mood and feelings as well as his general developmental needs.

I would also continue to work with both parents to guide them in protecting K from the acrimonious situation so that K can develop normally, gain relief from the tension and anxiety, and finally, adjust to the inevitable changes in his family.

57. This report makes for very difficult reading. It is clear that K is in serious difficulty principally because of this ongoing litigation and that some changes need to be effected in order to try to ensure his mental and emotional stability going forward.

The law

5.  The law in relation to children remains the same and is set out in my judgment of the 5 December 2013. Reference can be made to that as necessary.

6.  In so far as case law is concerned reference was made to the English case Re P (a minor) (education: child’s wishes) [1992] 1 FCR 145, where a court decided that it was in a child’s best interest not to go to boarding school. In that instance the child was somewhat older and the factual matrix was very different. The child had clearly expressed a preference not to go to boarding school and his views were given significant weight by the court. The situation in this instance is very different and can be distinguished on that basis alone. I do not intend to rely to any great extent on that case in this judgment.

Decision

7.  It is against this background that I am asked to make a determination about whether or not K should be a day pupil or a boarding school pupil. Having considered all of the competing factors it seems to me that it would be more appropriate for K to be enrolled as a boarding school pupil for the following reasons:

a) There is no doubt that X International School is an outstanding educational institution and that K will benefit from all that it has to offer whether as a day pupil or a boarding school pupil;

b) Of note is the fact that there is a school psychologist on staff plus an individual’s issues counsellor. It is hoped that K will therefore have access to strong psychological support, which will be ongoing and not subject to change at the whim of one or other of his parents;

c) Given the background here it seems to me that it is now essential that K is distanced from the ongoing feud between his parents, which appears to have had such a negative impact on him. A boarding school environment will provide him with a neutral and safe place away from each of them for most of the week. I also accept that it may enable the father to rebuild his relationship with K more easily;

d) The school day is a long one beginning for boarders at 7:45 with the first lesson and finishing at 5:00 pm for the last lesson. If K is a day pupil it is accepted that even if he was driven to school by his mother every day (which under the terms of the existing order would not be the case) that that would add a further two hours a day travelling time. In addition he would have homework to do. In contrast if he was at school from Sunday evening until Friday after school – everything would be built into the school day. It seems to me that in the circumstances that this would be preferable;

e) The clinical psychologist recommended that K be a boarder and reiterated as follows:

27. In conclusion, facing the chronic and ongoing high-conflict of the parents, some measures are apparently needed to safeguard the psychological and emotional wellbeing of K.  It is recommended that it would be beneficial for K to study in a boarding school in order to provide an environment where he could be more distant from the parental conflicts and be less stressful and more free to relate individually with his father and mother.  It is also hoped that he could have positive adult role models found in the boarding school (e.g. house master, tutors, teachers) that help fostering a healthy psychological development.  Support from the school, parents, social workers and child psychologist would be essential to help K adjust well in the new school environment.  Moreover, it would be important for K to receive proper psychological treatment to address his emotional distress and support his psychological development.  Feasibility of different measures, such as outreach services at school, should be explored so as to maintain the regularity of therapy for treatment effectiveness.  The Court is advised to monitor the proper execution of parental duty in bringing the child for medical and/or psychological treatment whenever needed.

f) Given that the Social welfare Report was commissioned before it was apparent that there was an issue with respect to schooling, I do not attach much weight to the fact that the Social Welfare Officer did not make any specific recommendation in on the schooling issue;

g) K has apparently said that he does not wish to board. Given the circumstances here however it seems to me that the best interests of the child outweigh any expressed preferences made by K. In any event if K does not settle and if the professionals at school or otherwise deem it appropriate (and ultimately as directed by the court) then K can later become a day pupil. The school has confirmed that that will be possible. However the alternative i.e. moving from being a day pupil to a boarding school pupil may not be possible as boarding school places are very much in demand;

h) The mother also says that K is too young to board and that he needs her to assist in his day to day life. With respect K is almost 10 years old. He has been subjected to ongoing and extreme litigation tactics by both of his parents for most of his young life. He also lived apart from his mother for a significant period of time. As a boarder he will be assisted by professional and caring staff around the clock. In such circumstances the advantages of being a boarder in my mind outweigh the disadvantages of being away from either of his parents. In any event K will be able to spend time with each of them during the weekends and over the long school holidays.

Order

8.  Consequently I shall make an order in terms of the summons dated the 17 February 2015 in that the child of the family K shall join X International School Hong Kong as a weekly boarder commencing in August 2015.

Costs

9.  Mr Li indicated at the beginning of the hearing that notwithstanding this being a children’s matter that his client would seek costs in the event that the father was successful – in view of the clear indication given in the clinical psychologist’s report immediately prior to the hearing. Nevertheless it still seems to me that it would be more appropriate for there to be no order as to costs in this case. Thus there shall be an order nisi to be made absolute in 14 days time that there be no order as to costs.