PHCM v. KP

FCMC 9325 / 2020

[2023] HKFC 139

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 9325 OF 2020

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D E C I S I O N
(Overseas Schooling)

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Introduction

1.  This is the trial of a Summons taken out by the Petitioner Mother (“M”) for leave to remove the child of the family, a 13-year old boy whom I will refer to him as “A” in this Decision, out of Hong Kong to study in the United States of America (“USA”). I will call this “M’s Schooling Summons” in this Decision.

2.  M’s Schooling Summons was dated 4/4/2022 but filed on 20/4/2022 and the original plan was for “A” to start his studies in the USA in early August 2022[1]. At present, “A” was still in Hong Kong studying in a private local school.

3.  The Respondent Father (“F”) opposed M’s Schooling Summons from the outset. This had led to postponement of the original plan of “A”’s schooling in the USA from the academic year 2022-2023 to the coming academic year 2023-2024.

4.  “A’ was born in the United States of America and had acquired US citizenship by birth. As a US citizen, “A” was entitled to free education in local schools in the USA.

Background

5.  Parties married with each other in Hong Kong in 2008.

6.  F is at the age of 63 and retired in 2014. M is working at the managerial grade with an airline company in Hong Kong. She is now at the age of 53.

7.  In July 2020, M filed a petition for divorce relying on the fact of “Unreasonable Behaviour” under FCMC No. 5872 of 2020. By a consensual arrangement, the present divorce proceedings were commenced by M relying on the fact of “One Year Separation with Consent” in October 2020.

8.  Decree Nisi was granted on 29/12/2020 whereupon the earlier petition issued under FCMC No. 5872 of 2020 was dismissed.

9.  By a Consent Order dated 2/2/2021[2], the parties were granted joint custody of “A” with care and control to M and reasonable access to F, including staying access during weekends and long school holidays with the mutual agreement of the parties and “A”.

10.  By a further Consent Order dated 20/7/2021, parties’ ancillary reliefs were globally resolved which included the sale of the former matrimonial home, a lump sum payment of HK$6,900,000 to W and periodical payments of 1/3 of the expenses of “A” agreed at HK$28,000 a month excluding medical expenses be paid by F.

11.  For resolving M’s Schooling Summons, parties have filed affirmations and 2 social investigation report(s) (“SIR”) were prepared by the social welfare officer Miss Lo (“Miss Lo”) dated 28/10/2022[3] and 13/1/2023. Miss Lo gave oral evidence at the trial.

12.  At one stage, an international social services report (“ISSR”) was called for but this was subsequently dispensed with by this Court.

The relevant statutory provisions

13.  Section 3(1) of the Guardianship of Minors Ordinance, Cap.13 (“GMO”) is the statutory provision governing all applications concerning children, irrespective whether they are born out of cohabitation or wedlock. Under the section, the often cited “best interests of the minor” is the sole and paramount consideration of the Court. This could only be determined after thorough consideration of all subjective and objective factors and the evidence available to the Court, including Social Investigation Reports and Expert Reports (if any).

14.  Given the fact that there has not been in place any list of factors in our statute by way of guidance, our Courts from time to time will refer to the so-called “welfare checklist” under the English Children Act 1989 in order to determine the best interests of a child. Those factors are :-

(a) the ascertainable wishes and feeling 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) the practical difficulty and expense of a child having contract 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 the 1989 Act in the proceedings in question;

(l) any other fact or circumstance that the court thinks are relevant.”

The case law

15.  Given that this is M’s Schooling Summons for “A” to study in the USA and not relocation, I was invited by M’s lawyers to consider the Court of Appeal decision in the case of YSYM v LHB [2020] HKCA 586, a case which bears close resemblance to the present case on facts. As a matter of fact, M’s lawyers were the lawyer representing the mother in that case on appeal.

16.  In the YSYM case (supra), the mother successfully obtained leave on appeal to bring her 2 children, at the age of 13 and 14, to study in Vancouver, BC, Canada. It was emphasized by the Court of Appeal, citing the judgment of Rix LJ in the case of Re R (Residence Order) [2010] 1 FLR 509, on the importance of listening to the views of the child in question.

17.  It was said by Rix LJ at paragraphs 57 and 58 of the Judgment :-

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

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

See also Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619, [2006] 3 WLR 989, [2007] 1 FLR 961 per Baroness Hale at para [57]:

‘But there is now a growing understanding of the importance of listening to the children involved in children’s cases. It is the child, more than anyone else who will have to live with what the court decides.’

[58] I respectfully conclude that the judge has erred in not giving any real effect to the child’s wishes expressed in this case. He has referred to them, accepted them, but thereafter essentially ignored. He has attempted to reason against, and reject, the child’s (partial) rationalisation of them. He has in effect wholly discounted them. And yet, the child was a mature and thoughtful child close to the age of 10, who expressed his wishes rationally and, in my judgment, with considerable emotional understanding. Moreover, those wishes, in part natural given his love for his mother and his successful upbringing to date – and therefore to be given all the more attention rather than discounted …. I do not understand why these well-evidenced concerns were overborne by a call for greater sophistication: in reality this was little more than a way to reinforce the judge’s conclusion that he would not disturb the boy’s “settled” status.”

18.  Apart from listening to the child’s wishes, the Court should also consider the impact of refusing leave for the child to study abroad. At paragraph 73 of the Judgment in the YSYM case (supra), it was said :-

“73. Further, as the judge had reasoned against and rejected the wishes of the children, who, more than anyone else would have to live with what the judge had decided, it is fair to say that she did not appear to have assessed properly the impact of her refusal on the children. The SWO gave evidence of his concern that the children’s frustration and anger might deepen their resistance and hatred towards the Father and they might even turn to violence, if it should transpire they had no choice but to live with the father and his new family. This was not addressed in the Judgment. As pointed out by Mr. Yim, the judge had merely directed a directions hearing after the handing down of the Judgment to explore the choice of accommodation for the children. He submitted that there was no “side-by-side evaluation” of the options of the children remaining in Hong Kong and their moving to Canada with the Mother. We think there is substance in the complaint. The judge did not appear to have carried out a proper appraisal before making her decision when she conducted a review on the children’s welfare as the paramount consideration.”

19.  Back to the present case, F was acting in person and had not produced any cases or authorities for my consideration.

Mother’s Application

20.  M’s lawyers Miss Barbara Hung repeatedly emphasized that M was not seeking to permanently remove “A” to the USA on a relocation basis.

21.  M’s Schooling Summons was taken out because “A” had expressed his wish to study in the USA. “A” finds it difficult to adapt to the Hong Kong education system which requires a lot of memorization and homework. Despite the efforts “A” had put into his studies, he was still struggling with the homework and the examinations throughout his primary education and the struggle continued in his secondary education. “A” has just finished his Form One education this summer.

22.  M said actually it has been the common intention of F and her that “A” would study in the USA. This was the reason why M stayed in the USA to give birth to “A” so that “A” could acquire US citizenship by birth. At that time, she stayed in her younger sister’s home, whom I will refer to her younger sister as “AP” in this Decision, who now supported her arrangement for “A” to study in the USA.

23.  “AP” and her family, including her own 2 children, have settled in the USA since the 1990s. M and “A” visited USA almost every year and they are very close to AP’s family. AP gave full support to M’s application to bring “A” to study in the USA. AP even deposed to an Affirmation[4] in the USA and filed it in these proceedings to set out her family background as well as the support which she and her family would provide to M if “A” was allowed to study in the USA. Upon F’s confirmation that he did not insist upon AP flying to Hong Kong for cross examination and he would take no issue on AP’s affirmation evidence, AP did not testify at this trial.

Father’s Opposition

24.  Apart from his 1^st Affirmation in Opposition dated 14/4/2022[5], F also, without leave of the Court (emphasis added), filed his 2^nd, 3^rd and 5^th Affirmations dated 10/5/2022, 9/6/2022 and 20/1/2023[6] respectively.

25.  In his 1^st Affirmation[7], F said his opposition and concern was that “A” would be subject to a new environment and that the new arrangement would much depend upon AP’s family support. He also raised his doubt as to whether M would resign from her job in Hong Kong and to stay with “A” in the USA to take care of him. M’s ability to take care of “A” studies was F’s another concern. Further, F said M may not be keeping her commitment to provide him with access after “A” had left Hong Kong for the USA. F then referred to “A” had once suffered from lungs infection and bed bugs bites in the past 2 years whilst he was under M’s primary care.

26.  In his 2^nd Affirmation[8], F in general was repeating his concerns set out in the 1^st Affirmation and the responses that he received from M on study and care issues on “A”. F also referred to his other areas of distress over M, such as overspending in legal expenses and selling the former matrimonial home at under market price during the pandemic crisis. Clearly, these are not relevant to M’s Schooling Summons. Finally, H said the following under the paragraph headed “Conclusion” :-

“I suffered many wrongs from M saying that I was making her life difficult, indeed, I was waiting for her clarifications during all this time. Since 31 January 2022, I have expressed my concerns through various messages, that we cannot ask “A” to live as a dependent with M’s sister, [AP] as I foreseen that problem may arise in the future, and that “A” will be left with no alternatives.

I do not agree for “A” to move to the U.S. to study at this moment, as I see that this will demote our bonding time, which is already very few (That is, only every Saturday from 1 to 8:30 p.m.) to a time which I cannot foresee nor guaranteed.

My distresses further enhanced my objection to give consent for “A”’s permanent departure.

Since 31 January 2022 up to the present communications, I am certain that this plan for relocation permanently is not addressing to the root cause of any claimed problems.”

27.  In his 3^rd Affirmation[9], F raised for the first time that he suspected that M had committed “fraud” in the USA. The related passages are quoted below :-

“7. I also have reasonable grounds to suspect that M has intentionally lied about her employment status in order to claim social welfare in the U.S. which is a “fraud”.

In 2009, she has claimed to the U.S. government that she was unemployed, at the same time she was employed by [xxxxxxx] aimed to apply as a low income citizen to qualify for “Medi-Cal” and “Supplemental Nutrition Assistance Program” scheme.

She has communicated to me that all U.S. citizens are included in this system. I was not aware of this was an intentionally misinterpreted information. However, when M’s parents instructed me not to go into a U.S. social welfare office together with them and remarked that my presence will ruin that interview for benefit assistance application. It was then; I started to realize that it was an inappropriate application.”

28.  In his 5^th Affirmation[10], apart from giving the reasons for his choice of acting in person, F also tried to provide his reasons for opposing M relocating “A” out of the jurisdiction of Hong Kong without parental care. He pointed to M had not helped “A” to perform well in his examinations in Hong Kong.

29.  F further said M had claimed that her father, being a university graduate and had worked in the government laboratory before his retirement, would be able to help “A” on his mathematics and science subjects. Her father would also assist “A” in Chinese homework and revision. F submitted that he was completely disappointed with M as she had left “A” down by not taking up her parental role seriously. This was the cause for “A” not meeting his homework assignments in his current local school in Hong Kong.

30.  F said in this Affirmation that he had forwarded to the US Department of Health Care Service the suspected fraud of M and had received an acknowledgement back from the US authorities telling him that an investigation would be filed. He also believed that the withdrawal of the worker on the international social services investigation may be connected with such “fraud” investigation.

Social Investigation Reports

31.  There are 2 Social Investigation Reports prepared by the same social welfare officer Miss Lo on 28/10/2022[11] and 13/1/2023[12].

32.  The social welfare officer Miss Lo in her 1^st Report dated 28/10/2022, insofar as the wish of “A” on studying in the USA was concerned, said[13] :-

“28. “A” 表示在2020年12月小五上學期感染了新冠肺炎後記憶力下降，小六的成績差了，因為香港讀書需要很多背誦很多功 課，他感到吃力，所以他希望到美國讀書會較輕鬆，他喜歡歷 史，希望成為考古學家。他記得小時候爸爸跟他說可以到美國讀 書，他明白爸爸想他長大一點才到美國讀書，但他希望可以早一 點到美國適應，讀他喜歡的科目。他回憶起曾經到美國上暑期班 很開心沒有壓力。若然到美國升學後，他可以跟爸爸保持電話聯 絡，或在學校長假期回港見爸爸。如果法官認為有需要，他可以 親自出庭與法官會面，表達他的想法。”

33.  In the same Report before making her recommendation, Miss Lo said :-

“34. “A” 是一位青少年人，個子高大，他性情平和彬彬有禮，有 自己的獨立思考能力，他表示在香港讀書感到很大壓力、對學習缺 乏興趣和動力，他清晰表達自己期望可以輕鬆和愉快地在美國讀 書。相信若然到美國升學後，他會跟爸爸保持聯繫，包括電話聯絡 或在學校長假期回港跟爸爸見面。……….. 調查主任認為，若 “A” 期望到美國升學的計劃遭到爸爸反對，會令他對目前狀況感到沮喪 和挫敗，亦可能加深他對爸爸的抗拒，影響日後和爸爸的接觸和聯 繫，不但令父子關係轉差，更遑論日後跟爸爸留宿探視。相反地， 若 “A” 到美國升學的計劃得到爸爸的支持，有機會讓 “A” 更加珍惜 與爸爸相聚的時刻和珍惜彼此的關係……

35. 綜觀以上資料，P女士和K先生均表現愛錫兒子 “A” ，P女士期望可以盡快帶同兒子到美國接受教育，而K先生反對兒子現階段到美國升學，但不排除待兒子長大一些懂得保護自己後可到美國升學。“A” 清晰地表達他期望到美國升學的意願，若然他的期望可以落實執行，無疑肯定有助激發他對學習的興趣和提升他在學習上的成功感。………..”

34.  Miss Lo in her 2^nd Report dated 13/1/2023, on the same topic of “A”’s wish to study in the USA, she said[14] :-

“10. “A” 表示父母均愛錫他，他感到在香港讀書需要很多背誦和很多功課感到吃力，他仍然希望可以早一點到美國讀書，他到美 國後仍然會和爸爸保持電話聯繫。在2022年11月26日在爸爸家 中進行探視期間，因進食太多以致胃部不適，“A” 主動要求在爸爸 家中留宿休息，由於在留宿期間沒有感到恐懼，因此他在12月31 日再次嘗試在爸爸家中留宿至翌日2023年1月1日，期間他沒有 感到恐懼。“A” 表示未來會繼續主動地在爸爸家中留宿，克服心裡 的恐懼，目的是讓爸爸對他有信心，日後在美國升學後在學校長假 期回港時會主動和爸爸見面和在爸爸家中留宿。

11. ………

12. ………

13. …….雖然P女士和K先生對於兒子是否到美國升學意見分 歧, 但 “A” 清晰地表達他期望到美國升學的意願，是該受到重視和 尊重的，若然他的期望可以落實執行，肯定有助激發他對學習的興 趣和提升他在學習上的成功感，調查主任認為這亦是符合孩子的最 佳利益的重要考慮。………..”

Miss Lo’s oral evidence in Court

35.  Miss Lo confirmed in Court that the contents of her 2 reports are true and accurate. She adopted both reports as her evidence in chief.

36.  Miss Lo also confirmed that the recommendation in both reports that it would be in “A”’s best interests to study in the USA remain to be the case. Miss Lo also said “A” had clearly and unequivocally expressed to her his wish to study in the USA. “A” also clearly stated his inability to cope with the stream of the local education and hoping to study in the USA which he found interesting from attending the summer course there in the past.

Analysis on F’s grounds of opposition

37.  To briefly summarize F’s grounds of opposition, both from what he said in his various Affirmation(s) and his oral testimonies in Court, they are as follows :-

(a)  M had committed “fraud” in the USA back in around 2009 to 2010 and that she might be arrested upon her return to the USA;

(b)  M had not been able to take care of “A” over his studies in Hong Kong; both due to M’s willingness, abilities and her busy work schedule;

(c)  It was doubtful that M would resign from her job in Hong Kong to take care of “A” in the USA;

(d)  It was also doubtful whether AP would be supporting M and “A” in the way as AP had said she would be, based upon F’s knowledge of AP personality and her relationship with M; and

(e)  “A” would be subject to a different environment if he was allowed to study in the USA.

38.  I would now go to consider each of F’s grounds of opposition by their alphabetical order.

39.  The evidence relied upon by F in support of his ground (a) was

the reply that he received from the US Department of Health Care Services dated 24/6/2022[15]. In this reply, a reference number was given to his complaint and it was said that the matter would be seriously handled. Apart from this reply, F was unable to produce any further evidence, documentary or otherwise, to show that M was being investigated or interrogated by the US authorities or that there was criminal prosecution against M on the way.

40.  M strenuously denied such accusation. She was of the view that such complaint was made by F out of his ulterior motive to prevent her application being successful. The complaint was made by F only after she took out the Schooling Summons speaks volume. Whilst this was not the proper venue for determining the reasons or legitimacy of F’s complaint, suffice for me to say was that any allegation of “fraud” perpetuated on the State or government is a very serious matter which requires solid and cogent evidence of proof to substantiate. A mere reply on acknowledgement of a complaint even with a reference number given clearly would not be sufficient proof of evidence for allegation of “fraud”.

41.  Further, even if criminal proceedings were instigated (which was not the case or any such finding here), such serious allegation could only be substantiated by the passing of a conviction by the court under due process of the law. F’s accusation at this stage was too remote and far-fetching if not being made out of any ulterior motive.

42.  A year had now elapsed since the said reply was received, F was unable to produce any further evidence to show that M was being investigated or interrogated by the US authorities. This tended to show that F’s complaint might not be accepted or substantiated and that further action was not warranted or required by the US authorities.

43.  F in the witness box confirmed that he was aware of the alleged “fraud” at the time when it took place but he chose not to make any report or complaint at that time hoping and waiting to see that M would come to her conscience on her misdeeds. F in his Opening Submissions dated 5/5/2023[16] had even tried to pull AP into his alleged “fraud” by making the following statement :-

“……..however, I must point out at time the fraud happened in the United States, M was staying at AP’s place and used AP’s address as the point of contact. I have reasonable grounds to suspect that AP is fully aware and involved in the fraud that M has committed, which is conspiracy to fraud (emphasis added). This will directly affect and does not meet the prime objective to assist in caring for “A” despite M sister, AP tries.
 

I believe that this history demonstrates that they are not trustworthy or responsible enough to be entrusted with the care and wellbeing of “A”

44.  In my view, had culpability been an issue upon the alleged “fraud” being substantiated, I believe F would be equally culpable for “aiding, abetting or concealing a fraud” if AP could be said to be “conspiracy to fraud” by F. Being the husband of M at the time in 2009 to 2010 when the alleged “fraud” took place, I believe the degree of culpability of F, who admittedly had the actual knowledge of the alleged “fraud” at the material time, would be no less culpable than any others in such a scenario.

45.  Further, it took F some 13 years for “hoping and waiting to see” if M would come to her conscience on her misdeeds was, from any perspective, unbelievable. I find F’s “reason” for making the report or complaint on the alleged “fraud” on M to the US authorities 13 years later in 2022 totally unconvincing.

46.  That said, I find M’s lawyers’ submission that F’s report or complaint of “fraud” was just a “make up” with the ulterior motive to obstruct M’s application more probable than not to be the truth.

47.  I find F’s ground (a) unmeritorious and must fail.

48.  F’s ground (b) touches upon M’s abilities in taking care of “A” including supervising “A”’s studies in Hong Kong. This ground is a complete non-starter. This application was not taken by F for variation of care and control of “A” because of the inability of M to take care of “A”.

49.  Putting criticisms over M’s ability to take care of “A” could not be a legitimate ground of opposition for “A” to study abroad. To study locally or abroad would only depend upon which stream of education was suitable for “A” and thus could be said to be in his best interests to take. This had nothing to do with the ability of the carer. The ability of M to take care of “A” would in no way be connected with the stream of education which was apt to “A”’s ability to study. The two simply does not go “hand in hand” from any perspective for obvious reasons. F had missed the point completely.

50.  I find F’s ground (b) was improperly taken to oppose M’s Schooling Summons. Such ground might only be of relevance in an application for variation of care and control of “A”. This was not the case here. There was no such application by F at any time.

51.  In the witness box, M gave clear evidence that if “A” was allowed to study in the USA, she would resign from her job in Hong Kong and go with “A” to take care of him in the USA. F’s ground (c) was founded upon his mistrust on M rather than upon any solid evidence. F was unable to discredit M’s evidence of her planned resignation upon her successful application to bring “A” to the USA.

52.  I find F’s ground (c) fails.

53.  Given F’s confirmation of not taking issue with AP’s affirmation or requiring her to testify on her credentials, I am entitled to take AP’s affirmation as uncontroverted evidence and attach appropriate weight onto it.

54.  In her 7-page Affirmation[17] comprised of 3 separate headings under (i) Family Background and Dynamics; (ii) Social Setting & Environment; and (iii) Accommodation & Support, together with her 3 exhibits[18], AP gave a descriptive account of her family and with details of the range of support readily available to M and “A”. Upon careful reading and review of them, I accept AP’s affirmation evidence of the support that she and her family would be willing and able to provide to M and “A” upon their arrival in the USA.

55.  Hence, I find F’s ground (d) unsustainable for his mistrust on AP which are readily proved by AP’s direct and uncontroverted affirmation evidence.

56.  F’s ground (e) does not even get off the ground and devoid of any sense. In all cases of studying abroad, it would be inevitable that the child who was leaving the jurisdiction would be subject to a different environment. There was no exception to “A” in this case.

57.  This ground (e) definitely must fail.

M’s Schooling Plan for “A”

58.  At the time of this trial, “A” was offered a place by a local school by the name YMCS through a lottery system to start his Grade 8 for the academic year 2023-2024[19]. M had also accepted the offer and registered for “A”[20].

59.  M in her evidence in chief also provided her assurance to F on his rights of access whilst “A” studies in the YMCS. She produced YMCS school calendar for the academic year 2023-2024[21] and identified those periods of long school holidays that “A” may be returned to Hong Kong for F’s access, subject to no imminent tests or examinations around that time.

60.  M also supported F’s right of access to be exercised in the USA if F chooses to go to visit “A” in the USA. For those school days within the term, M did not object to F’s access by telephone or through any electronic communication platform.

61.  With AP’s support on accommodation for M and “A” together with the financial support as per the parties’ global settlement on ancillary reliefs[22], I find M’s schooling plan for “A” workable and make a good sense; taking into account the wish and desire of “A” to study in the USA and the uncontroverted recommendation of Miss Lo given at this trial and in her social investigation reports.

Concluding Views

62.  Apart from not being able to substantiate any of his grounds of opposition to M’s Schooling Summons, F was also not able to discredit the evidence of Miss Lo, the social investigation officer in charge in this case including the recommendations she made in her reports.

63.  Miss Lo has worked for the Social Welfare Department for 27 years and has 4 years 3 months’ experience in handling family cases involving children. She has written over 30 investigation reports on children matters. I find Miss Lo is an experienced social investigation officer.

64.  Throughout her testimonies in Court, Miss Lo answered questions with clarity and confidence. I accept Miss Lo is a truthful and reliable witness. I also accept her investigation revealed by her reports was thorough and complete, the recommendation that she arrived at was after detailed analysis of her all-round investigation and with the best interests of “A” in mind. Her views of the impact on “A”, if leave to study in the USA was refused, was reasonable and important, which I also accept. This is one of the matters which I need to also consider in any schooling applications[23].

65.  F’s attempted argument of “A” might not know the complete picture if he was to study in the USA, including the possibility of the carer M being arrested or prosecuted for the alleged “fraud” and the need of support from AP, simply could not stand given my findings on these matters in the preceding paragraphs.

66.  “A” being a child of 13 and, according to Miss Lo’s evidence, he was able and competent to express himself clearly and was fully aware of F’s opposition to his study in the USA. The difficulty that he encountered in coping with the local stream of education, and the strong wish and desire to study in the USA, was also clearly expressed to Miss Lo. To put up the argument that “A” might not know the complete picture was unfair to “A”.

To say that M might be arrested or prosecuted was a bare statement without proof, being unfair to M.

67.  I wish to add that with the difficulties already encountered by “A” at this level of education, that is, Form One, it was more probable than not that he might not be able to cope with higher level in the local stream of secondary education in the coming years. In that case, how would it be in the best interests of “A” to deprive him the chance of studying in the USA where he had found the stream of education suitable to him and was interesting before his interest and confidence in studying was undermined by the stream of local education in Hong Kong ?

68.  Given careful consideration to all the above, I am satisfied that it is in the best interests of “A” to study in the USA in the coming academic year 2023-2024 at the YMCS which M had already registered.

69.  Upon the usual written undertaking of M to return the child “A” to the jurisdiction of Hong Kong upon being called to do so, I will grant an order in terms of M’s Schooling Summons.

Costs

70.  In the Written Final Submissions[24], Miss Barbara Hung for M sought costs against F on the ground that F’s objections raised was malicious and unjustified without taking “A” best interests in account.

71.  There was no submissions on costs in F’s Written Closing Submissions save for seeking dismissal of M’s Schooling Summons.

Applicable legal principles on costs

72.  The Court has a wide discretion when deciding costs. There is no difference between civil cases and family court cases. The rules on costs are contained in Order 62, rules 3 and 5 of the Rules of the High Court (“RHC”) which are applicable to matrimonial proceedings in the Family Court[25].

73.  Order 62 rule 3(2) of the RHC provides :

“(2) If the Court in the exercise of its discretion sees fit to make any order as to the costs of or incidental to any proceedings (other than interlocutory proceedings), the Court shall, subject to this Order, order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs.”

74.  Order 62 rule 5(1) of the RHC provides :

“(1) The Court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account –

(aa) the underlying objectives set out in Order 1A, rule 1;

(a) any such offer of contribution as is mentioned in Order 16, rule 10, which is brought to its attention in pursuance of a reserved right to do so;

(b) any payment of money into court and the amount of such payment;

(c) any written offer made under Order 33, rule 4A (2);

(d) any written offer which is expressed to be ‘without prejudice save as to costs’ and which relate to any issue in the proceedings, but the Court may not take the offer into account if, at the time it is made, the party making it could have protected his position as to costs by means of a sanctioned payment or a sanctioned offer under Order 22;

(e) the conduct of all the parties;

(f) whether a party has succeeded on part of his case, even if he has not been wholly successful;

(g) any admissible offer to settle made by a party, which is drawn to the Court’s attention.

(2) For the purpose of paragraph 1(e), the conduct of the parties includes –

(a) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(b) the manner in which a party has pursued or defended his case or a particular allegation or issue;

(c) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim; and

(d) conduct before, as well as during, the proceedings.”

75.  In civil proceedings, the general principles on costs can be found in the English case of In re Elgindata Ltd (No. 2) [1992] 1 WLR 1207, where Nourse LJ said at page 1214 as follows:-

“The principles are these. (i) Costs are in the discretion of the court. (ii) They should follow the event, except when it appears to the court that in the circumstances of the case some other order should be made. (iii) The general rule does not cease to apply simply because the successful party raises issues or makes allegations on which he fails, but where that has caused a significant increase in the length or cost of the proceedings he may be deprived of the whole or part of his costs. (iv) Where the successful party raises issues or makes allegations improperly or unreasonably, the court may not only deprive him of his costs but may order him to pay the whole or a part of the unsuccessful party’s costs. Of these principles the first, second and fourth are expressly recognised or provided for by rules 2(4), 3(3) and 10 respectively. The third depends on well established practice. Moreover, the fourth implies that a successful party who neither improperly nor unreasonably raises issues or makes allegations on which he fails ought not to be ordered to pay any part of the unsuccessful party’s costs.”

76.  In family proceedings, the principles on costs can be found in the leading English case of Gojkovic v Gojkovic [1992] 1 All ER at page 271 where Butler-Sloss LJ said :-

“That starting point, in my judgment, is that costs prima facie follow the event (see per Cumming-Bruce L.J. in Singer (formerly Sharegin) v. Sharegin [1984] FLR 114 at 119) but may be displaced much more easily than, and in circumstances which would not apply, in other divisions of the High Court. One important example is, as the judge pointed out, that it is unusual to order costs in children cases. In applications for financial relief the applicant (usually the wife) has to make the application in order to obtain an order by consent; and if money is available and in the absence of special circumstances, such an agreement would usually include the applicant’s costs of the application. If the application is contested and the applicant succeeds, in practice in the divorce registries around the country where most ancillary relief applications are tried, if there is money available and no special factors, the applicant spouse is prima facie entitled to, and likely to obtain, an order for costs against the respondent. The behaviour of one party, such as in material non-disclosure of documents, will be a material factor in the exercise of discretion in making a decision as to who pays the costs.”

77.  In Hong Kong, starting with the case of F v. F [2003] 3 HKLRD 976 where Hartmann J (as he then was) after setting out the principles as to award of costs in civil proceedings propounded in In re Elgindata (No.2) (supra), said :

“12.	Contested family proceedings, being civil in nature, are subject to the founding principles that I have outlined. However, it has long been accepted that, because of the special dynamics of family litigation, the discretion is broader than it may be in civil matters generally. The seminal case on this point, long followed in this jurisdiction, is Gojkovic v. Gojkovic [1991] 2 FLR (CA) 233 in which Butler-Sloss LJ said :
	‘….there still remains the necessity for some starting-point. That starting-point, in my judgment, is that costs prima facie follow the event (see Cumming-Bruce LJ in Singer v Sharegin [1984] FLR 114 at p.119), but may be displaced much more easily than, and in circumstances which would not apply, in other Divisions of the High Court. One important example is, as the judge pointed out, that it unusual to order costs in children cases.’

78.  At paragraph 22 of the same Judgment, His Lordship further said :

“22.	Leaving aside what I consider to be the long-established principle that costs are determined not by dividing litigation into quantifiable subjects and figures, like a profit and loss account, but rather by way of overall impression.”

79.  Her Ladyship Hon Yuen JA in the case of L v C, CACV No. 169/2006 (Date of judgment: 19 March 2008) sets out the principles in costs in family court cases and said at paragraph 23 :

“23.	As a matter of law, it is clear that costs are in the court’s discretion. Pointers as to how that discretion should be exercised include the following :
	(1)	in family cases, as in others, costs should normally follow the event;
	(2)	however, because of the special dynamics of family litigation (eg where the case involved children, or where financial resources were inadequate to meet the needs of both parties, etc.), the discretion may be broader than in civil matters generally (Gojkovic v. Gojkovic [1991] 2 FLR 233, F v. F (No.2) [2003] 3 HKLRD 977……;
	(3)	the court also retains a discretion to deprive successful litigants of costs under the Elgindata principles (In re Elgindata Ltd (No.2) [1992] 1 WLR 1207];
	(4)	where a litigant succeeds on appeal but only on a new point, the court can deprive him of the costs below (Farquharson v Morgan [1894] 1 QB 552) or even order him to pay those costs (Yip Lai Fong v Sin Tung Hing [2004] 3 HKLRD 230), and the court can deprive him of the costs of appeal (Chard v. Jervis (1882) 9 QBD 178).

80.  In the later case of T, L v. S, N, CACV No.196/2009 (Date of Judgment : 19 October 2010) where Hon Kwan JA said :

“123.

In matrimonial cases, as in other cases, costs should normally follow the event. The court also retains a discretion to deprive successful litigants of costs under the principles in In re Elgindata Ltd (No.2) [1992] 1 WLR 1207 (L v.C, CACV 169/2006, 19 March 2008, paragraph 23, per Yuen JA). The general rule that costs follow the event does not cease to apply simply because the successful party raised allegations on which he failed, but where that has caused a significant increase in the length or costs of the proceedings, he may be deprived of the whole or a part of his costs….”

81.  Further, in the case of Z v. X & C, CACV No.166/2011 (Date of Judgment : 8 March 2013) where Hon Cheung JA said :

“10.	Although Saunders J in W v.K & Anor (Costs) [2008] HKFLR 378 stated that in ‘big money case’ each party should bear its own costs, this Court’s approach on costs in ancillary relief application is that costs should follow the event although because of the special dynamics of family litigation (e.g. where the case involved children, or where financial resources were inadequate) the discretion may be broader than in civil matters generally : L v.C (CACV 169/2006, Judgment 19 March 2008) applying Gojkovic v. Gojkovic (No.2) [1991] 2 FLR 233; TL v. SN (Ancillary Relief) [2010] HKFLR 506.
11.	In England the approach has now been changed where the general rule is that the Court will not make an order requiring one party to pay the costs of another. However, costs orders may be made because of the litigation conduct of another party. The factors to be considered include, for example, whether an open offer to settle has been made, whether it was responsible to raise, pursue or contest a particular allegation or issue and the financial effects on the parties of any costs order. (See Rayden and Jackson on Divorce and Family Matters, 18th Ed, Noter up to Col 1(2) [52.17] – [52.20] and see further the Noter up on Family Procedure Rules 2010).
12.	The changes in England were carried out by prescribed rules. The position in Hong Kong has remain unchanged since L v.C and TL v. SN).

82.  In the reported case of YBL v. LWS (No.2) [2017] 2 HKLRD 783, the Court of Appeal said as follows :-

9. In our judgment, the proper approach in determining costs is that succinctly put by the Chief Justice in Mimi Kar Kee Hung v. Raymond Kin Sang Hung, FAMV 10 & 11 of 2014, 7 July 2015 at [7] :

‘The discretion as to costs in this Court, as in any other Court, is to be exercised in a principled way with a view to reality and justice.’

10. For present purposes, the relevant principles on the exercise of discretion as to costs can be summarized as follows :

(a)	whilst the courts often start with the proposition of costs following event, it is no longer a general rule but a starting point, see Hung Fung Enterprises v. Agricultural Bank of China [2012] 3 HKLRD 683;
(b)	there have to be some justifications for depriving a successful party of his costs;
(c)	in measuring who is the successful party and the extent of his success, the court must examine the reality and justice of the case. Thus, in Hysan Development Co Ltd v. Town Planning Board (No 2) (2016) 19 HKCFAR 635, the Court of Final Appeal made no order as to costs notwithstanding the success of the appellants in reversing the Court of Appeal’s decision because they did not achieve the full objects of their appeals;
(d)	in addition, under Order 62 Rule 5, the court in exercising its discretion shall take into account the matters set out in Rule 5(1) as may be appropriate in the circumstances;
(e)	Rule 5(2) highlights some conduct which the court may take into account including whether it is reasonableness for a party to take an issue, the manner in which the matter was pursued or defended, the extent of success, and conduct before, as well as during the proceedings;
(f)	If a successful party has brought the litigation upon himself or has done some wrongful act in the course of the transaction, he could be deprived of his costs.”

83.  Guided by the above principles, I now consider M’s application for costs against F in respect of her Schooling Summons.

84.  Given that F is one of the joint custodian parent and faced with M’s Schooling Summons, he is perfectly entitled to seek the Court’s assistance when there was no agreement with M on “A” education issues which obviously includes the present schooling application.

85.  For applications involving children, the norm and practice was to make no order as to costs against either parent since he or she was expected by the Court to pursue or defend the case for the best interests of their children. That said, he or she should not be deterred from so doing by any sanction of the costs of the litigation.

86.  I noticed that F had been trying the best he possibly could to defend M’s Schooling Summons by putting forward different grounds of opposition although all of them were not accepted by me.

87.  But for his unsubstantiated (emphasis added) contention of M having committed “fraud” in the USA, this must be the type of case where the norm and established pattern of making no order as to costs should apply.

88.  As I said earlier, “fraud” perpetuated on a State or government is a very serious matter not to be lightly taken without any solid and cogent evidence of proof. Apart from the mere lodging of the complaint after some 13 years, F had not been able to come up with any solid or cogent proof of evidence except the reply he received on acknowledgement of his complaint. Leaving aside M’s submission on any ulterior motive for F to do so, F’s explanation to this Court for the delay of some 13 years to complaint and only after M’s Schooling Summons was filed was highly skeptical.

89.  Given careful consideration to the cited authorities, I find that it was unreasonable for F to allege “fraud” without any solid or cogent proof of evidence. The fact that this was raised as one of his grounds of opposition amounts to conduct under Order 62 rule 5(1)(e) and (2)(a) and (b) of the RHC.

90.  Although M was the successful party in this trial, the reality and justice was that she had to spend over one year and to engage lawyers to go through a fully contested trial. Further, “A” planned study in the USA also has to be postponed for one academic year to coming September 2023.

91.  Given that the court’s discretion on costs must be exercised in a principled way with a view to reality and justice[26], I decided to exercise my discretion on costs in favour of M.

92.  Finally, I wish to add that this was an application involving children does not impinge upon or hinder the Court’s discretion on costs which must be exercised in a way where justice could be served.

Orders

93.  I now grant the following orders:

Upon the written undertaking by M to the Court and to F being filed,

(a)  Leave be granted to M to bring the child “A” to the USA for attending Grade 8 at the YMCS for the academic year 2023-2024 as soon as practicable; and

(b)  F do pay to M the costs of and occasioned by her Schooling Summons dated 4/4/2022 (filed on 26/4/2022); including all costs reserved (if any), to be taxed if not agreed.

94.  This is a costs order nisi which would become absolute if no application to vary the same was filed within 14 days from the date of this Decision.