S v. Guardianship of Minors Ordinance, Cap.13

FCMP 131/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 131 OF 1999

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Date of Handing Down of Judgment : 20 December 2000

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J U D G M E N T

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1. This is the parties' contested application for the custody care and control of their 4 years old daughter S born out of their cohabitation. The Father is 35 years of age, whilst the Mother is 37.

2. The parties first met in 1994 when the Father, an insurance agent, visited the nightclub where the Mother was working as a hostess. The Mother at that time was living with her elder daughter M who was born in 1985 out of her previous relationship with another man. The parties soon formed an intimate relationship which led to cohabitation a few months thereafter.

3. The Mother ceased working during the cohabitation and gave birth to S on 13th July 1996. The parties' relationship however was stormy and there were numerous conflicts including 2 occasions when the police was involved with the Father being charged with the offence of assault. The parties eventually separated in about late February 1998 when the Father left after a heated quarrel. On 1st March 1998 when the Father was given access to S, he brought her to the Fanling Jockey Club Clinic for treatment to some bruises which he noticed at the corner of her left eye and her right cheek. S was however referred to the Nethersole Hospital for observation after her bruises were diagnosed to be non-accidental. A child abuse case was suspected and the police and the Social Welfare Department became involved.

4. On 17th March 1998 a multi-disciplinary conference involving social workers, medical doctors and the police was held to look into the case and concluded that it was a highly suspicious child abuse case with the elder half-sister M suspected to be the abuser. The multi-disciplinary committee also recommended that S be removed from her parents and that a care and protection order be sought on her behalf. The application was accordingly made by the Director of Social Welfare and at the 1st hearing on 30th March 1998 in the Shatin Juvenile Court, S was committed to the temporary care of the Chuk Yuen Children's Reception Centre pending a psychological report on the Mother and social investigation report.

5. The parties appeared before the Juvenile Court on 17th April 1998 when it was ordered that S be committed to the care of the Father while the matter was adjourned for further investigation.

6. On 4th May 1998 the parties again appeared before the Juvenile Court when the Magistrate ordered that S be placed under care and protection for 18 months and was to remain in the care of the Father.

7. The Mother who all along insisted that S was never abused applied for review but on 2nd September 1998 the Juvenile Court maintained the original order. S has therefore since April 1998 been living with the Father and looked after by him with the assistance of his family members. She has also been under the supervision of the Social Welfare Department.

8. On 28th July 1999 the Mother obtained legal aid to institute the present proceedings under the Guardianship of Minors Ordinance in the Family Court for custody care and control of S. Her application was opposed by the Father who has also obtained legal aid, whilst the Official Solicitor, as before, has stepped in to represent S to safeguard her interests in the proceedings. S is now studying K-2 at Yan On Kindergarden which is a whole day school. She is being visited by the Mother on Saturdays and would stay overnight at her place on alternate weekend and major school holidays. It is with this background that the matter has now come before me.

9. As is common in custody disputes, the Social Welfare Department was asked to submit an investigation report and in these proceedings there are 2 prepared by different social workers, both recommending that custody of S should be given to the Father. This is however not agreeable to the Mother and hence the matter proceeded to trial. Both parties have filed several affirmations in great length and details, and gave extensive oral evidence at the trial, as did their witnesses as well as the 2 social workers, one of whom a Ms Law who is the current worker was arranged to be the last to give evidence at the suggestion of those representing the parties, so as to enable her to hear the oral evidence of the parties and to assess their respective case before making her final recommendation on S's custody and access.

The Mother's Case

10. The Mother was all along the child's primary carer from the time she was born until she was taken away in March 1998. The Mother says she has since stopped working and is on public assistance to support her living. She is therefore able to devote her full time in providing proper care for S.

11. She insists that there is no risk to the safety of S as the alleged child abuse incident was only an accident and that in fact S enjoys a good relationship with M who could not have abused her. She believes that the Father deliberately used the incident to remove S from her as a revenge for her refusal to reconcile with him.

12. According to the Mother, the Father is not a proper custodial parent for S. Firstly, he works as an insurance agent who often has to meet and entertain his clients after office hours and on weekends. He therefore has to rely heavily on his mother and sisters to look after S who has to spend a substantial amount of time in the paternal grandmother's home. As the grandmother is nearly 70 years of age and not of good health, and that she speaks only the Hakka dialect of which S is not conversant, the child is therefore not well looked after.

13. Secondly, the Father is not a good parent who had never shown any interest in the care and upbringing of S in the past. She does not think he is capable of rendering proper care for S, and has in fact not done so the past 2 years when S was living with him.

14. The Father also has a violent propensity with a history of hitting and assaulting her, says the Mother, during their cohabitation. He has also used abusive and foul language in public and in front of S and has taught her to call the Mother a prostitute. He also fails to recognise the child's needs to maintain close contact with her mother and has made access difficult for the Mother. All of these, she says, show that the Father is not fit to be the custodial parent for S.

The Father's Case

15. The Father does not believe that the Mother is a good parent. She had once worked in the nightclub, and he suspects that she may still be doing so. She is also of low morality and has problem getting along with her own family, and hence she has no family support for her present application.

16. He is convinced that S had been abused by M and is therefore afraid of her, and as the Mother is unable to properly supervise M who has stopped full-time schooling and has behaviour problem, he is concerned about M's bad influence on S if they are to live together.

17. The Father believes that S has been well looked after by him with the assistance of his family members the past 2 years during which she has grown to be a healthy and happy child with good performance at school. Furthermore, there is now a very close relationship between him and S that he does not think it would be in her interest to disturb her present status quo.

18. As aforesaid, 2 Social Welfare Reports have been submitted to the Court, each by a different Social Worker. In the 1st report, by Ms Lui and dated 24th November 1999, S was found to have been in proper care of the Father and paternal grandmother, with positive progress in her performance at school. Ms Lui found that a variation of the care arrangement might unnecessarily up-root the child's well-adjusted life pattern, and that in view of the poor relationship between Mother and M, she was also concerned that the Mother might not be able to handle sibling rivalry between her 2 daughters which might cause unnecessary tension on the growth of S. Ms Lui therefore recommended in her report that S's custody be granted to the Father. She maintained her recommendation at the hearing.

19. The 2nd report, which was dated 20th April 2000, was prepared by a Ms Law who has taken over the case since January 2000 after Ms Lui was posted to another position. In her report Ms Law confirmed that the Child has been under proper care of the Father and that although she found that the Mother has shown genuine concern towards S and is attentive to her physical needs, Ms Law was also concerned about her inharmonious relationship with M, and of the latter's lack of patience with S which she felt was not beneficial to the Child's development. Ms Law therefore supported the Father's application for S's custody in her report, a recommendation which she, like her predecessor, also maintained at the hearing.

The Law

20. This application is taken out under Section 10 of the Guardianship of Minors Ordinance which provides that the Court may make such order regarding the custody of the minor and the right of access to the minor of either of the parents as the Court thinks fit having regard to the welfare of the minor and to the conduct and wishes of the parents, the general principles of which are more particularly set out in Section 3 (1) as follows:-

"3.(1) In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property-

(a) in any proceedings before any court (whether or not a court as defined in section 2) the court-

(i) shall regard the welfare of the minor as the first and paramount consideration and in having such regard shall give due consideration-

(A) the wishes of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and

(B) any material information including any report of the Director of Social Welfare available to the court at the hearing; and

(ii) shall not take into consideration whether, from any other point of view, the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father;

(b) except where paragraph (c) applies, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other;

(c) where the minor is illegitimate-

(i) a mother shall have the same rights and authority as she would have by virtue of paragraph (b) if the minor were legitimate;

(ii) a father shall only have such rights and authority, if any, as may have been ordered by a court on an application brought by the father under paragraph (d);

(d) the High Court or a judge of the District Court may, on application, where it is satisfied that the applicant is the father of an illegitimate child, order that the applicant shall have some or all of the rights and authority that the law would allow him as father if the minor were legitimate."

21. There is no question that the Child was born out of the cohabitation of her parents who are not married to each other. Regardless who took out the present application, and it was the Mother in this case, the parties are to be treated equally as to their rights over custody of the Child, and I shall regard her welfare as the first and paramount consideration with due consideration to other relevant matters including those set out under 3(1)(a)(i).

The Evidence

Child Abuse

22. One of the first matters that I should consider is the allegation of child abuse which led to the involvement of the Social Welfare Department in early 1998. I accept that it was a past event, but as pointed out by Counsel for the Mother, it would have a bearing on the present proceedings because M was suspected to be the abuser, and there is still concern of the Father that the Child's welfare would be seriously compromised if she is to live with the Mother and M.

23. S was taken by the Father on 1st March 1998 first to the Fanling Jockey Club Clinic and later to the Accident and Emergency Department of Alice Ho Miu Ling Nethersole Hospital where she stayed until her discharge on 20th March 1998. The hospital's medical report revealed that she had old bruises over her right cheek with a diameter o f 2.5 cm and right upper eyelid of about 1 week old, and fresh bruises over left eyelid with mild swelling of about 3 - 5 days old. The report prepared by Dr Lee, concluded that the bruises were unlikely to be accidental and cited pinching with fingers as a possible cause.

24. The Mother's evidence is that as the Father failed to provide any maintenance for her after his departure, she resumed working as a nightclub hostess from 6 pm to mid-night on weekdays. On or about 25th or 26th February 1998, she was able to return home from work earlier on that night at around 10 pm and when she saw the child's toys lying all over the floor, she therefore told the child to clear up her toys. It was while S was picking up her toys when she accidentally hit her right upper eyelid against the corner of the side table. According to the Mother, although S was crying loudly, she did not appear to be injured. However later at night her eyelid became bruised and she therefore applied a boiled egg on the injured area.

25. One day later, the Mother says, as she found the bruised area around S's eyelid to have extended, she therefore took her to a Dr Tam at the Fanling Centre for treatment. She was told by the doctor that S's injury was not serious and was given some cream to apply to the bruised area.

26. There was some confusion over exactly when the Mother returned home from work on the night of S's alleged accident. This is relevant as the Father does not agree that it was an accident and suspects that the Mother might have made up the story to protect M. The Mother's evidence is that her normal working hours were between 6 pm and 12 mid-night and whilst she worked, there would be only her 2 daughters at home, although a neighbour Mrs Tse would keep an eye on them.

27. On the evening in question, according to the Mother, she had few customers at the nightclub and hence was able to go home earlier than usual. However, it was also her evidence that it was the usual practice for hostesses in the nightclub not to leave earlier as there might be customers arriving later at night. Her evidence appears to be contradictory.

28. However, it is necessary here to say a few words about the way the Mother gave her evidence. She clearly appeared to be anxious to tell but had difficulty expressing herself. She spoke in a dull and slightly clumsy manner, but not evasively. Having heard and observed her throughout the hearing, I accept that this is the way she speaks and cannot say that she was lying when she said she returned home at 10 pm on that evening in February 1998.

29. In support of her evidence that S's injury was accidental, the Mother has produced a report by Dr Tam who was also called to give evidence at the hearing. Dr Tam's report, which was exhibited to the Mother's 4th Affirmation and dated 24th April 2000, reveals that S was brought to see him on 27th February 1998 after it was said that she had fallen in her home the night before. She was found to have 2 areas of mild bruises on her right face, one in the middle of her right face and the other one near the lateral corner of her right eye, each measuring about 1 cm in diameter. The report concluded that the site and extent of her injury was compatible with falling and that it was mild with no permanent damage.

30. At the hearing Dr Tam corrected his report in that the injury should be near the lateral corner of S's left eye instead of the right eye as originally stated. He however disagreed with Dr Lee's medical report or his evidence that the injury was non-accidental. He believed that the injuries found on S's face were consistent with the accident alleged by the Mother, and that the bruise on the right cheek was unlikely to be caused by pinching.

31. According to him, it is not sufficient just by looking at these injuries to tell whether it is a child abuse case. Not all hitting, he said, such as disciplining one's own child, would amount to child abuse. The fact that Dr Lee's report found no other injuries in S's body, and that as he himself has been S's family doctor since her birth and has seen her so many times without noticing any sign of abuse on her, he does not believe that she has been abused at all.

32. Dr Lee also gave evidence at the hearing when he confirmed that he was unable to tell from the injury caused to S's eyelid whether it was accidental or deliberate. He was however more concerned about the bruises on the right cheek which he said, as in his report, that the very localization of the bruises and the absence of associated oral mucosa laceration made it unlikely to have been caused by blunt trauma upon a fall as there was a lot of soft tissue there functioning as a cushion preventing small localized tissue damage. He maintained that it was possible that the bruise on the right cheek was caused by pinching, but not the one on the eyelid because of its location. He agreed that he did not ask the Mother in the hospital for her explanation as to S's injuries, but that when he was told by the Father of his concern about possible abuse on S, plus what he knew about the background of the parties, he therefore came to the conclusion that it was a suspected child abuse case.

33. The Multi-disciplinary Committee which decided that the incident was a highly suspected child abuse case, first held a case conference on 17th March 1998, and a second one on 9th April 1998. At the 1st conference, the Committee concluded that the bruises were caused non-accidentally, but it also agreed that there was no sufficient information to substantiate that it was a child abuse case, or any evidence to prove who the abuser was. The members therefore put the matter to a vote and the majority decision was that it was a highly suspicious physical abuse case with M as the suspected abuser.

34. It is, however, not very clear from the minutes of the case conference which was produced at the hearing as Exhibit A-3, what exactly were the basis or reasons for the Committee to reach such decision.

35. According to the minutes, the Committee had considered various reports presented to it on the matter, including the medical report from the hospital, enquiry reports by social workers as well as the police report, but I am unable to find any evidence to suggest a child abuse case.

36. The medical opinion of the Committee was that the bruises were non-accidental, but as Dr Tam pointed out in his evidence, non-accidental injury does not necessarily mean hitting, let alone abuse, whereas the police report also found that it was not a child abuse case. The report that came closest to suggest the possibility of child abuse is the Social Enquiry Report of 16th March 1998 by Social Work Officer Ms Chan who reported that, according to the Mother's father and younger sister, M did not like S, that she was jealous of her and that she had been seen more than once hitting the head and face of S. This, however, must be set against the other findings of the medical report which described S's general condition as well and normal without other external wound on her body and that she was active and playful with no abnormal behaviour being noticed, and that even the same Social Enquiry Report concluded that there was no evidence to verify the suspicion of child abuse.

37. I believe it is entirely possible that Dr Lee might have misunderstood the Mother's explanation of the injury to S's eyelid and confused that with the injury to her right cheek. It is the Mother's evidence, which is not challenged, that she had told Dr Chan at the hospital of how S hurt her eyelid by hitting the corner of the table but that she had never said that her injury to the right cheek was due to a fall, as she was never asked about it by Dr Chan or anybody in the hospital. It is also Dr Lee's evidence that he had never talked to the Mother about the injury and that he only obtained the information from the oral report of Dr Chan several days later. Therefore there was never any direct evidence as to how the bruises were caused to S's right cheek. Under the circumstances and with the evidence presented at that time, I have to admit that I have difficulty agreeing with the majority decision of the Committee reached on 17th March 1998.

38. At the 2nd case conference on 9th April 1998 the Committee focused more its attention on the future arrangement for S rather than on the question of suspected child abuse as there did not appear to be any further investigation or evidence on that matter. One thing was clear though, S was unable to adapt to life at the Chuk Yuen Children's Reception Centre and in fact the Supplementary Social Enquiry Report dated 9th April 1998 which was presented to the Committee at the conference described S's situation as follows :-

"..... The Child obviously looked thinner and not as cheerful as usual. She seldom said any words and rejected the people around. Mr Wong and Madam Lee also said S felt very unhappy when they left her after visit. Both parents also feared that S might have unhealthy development if the child was placed under the residential care for too long."

39. The Report then concluded that in view of the inadaptation of S in Chuk Yuen Children's Reception Centre and with her welfare as a priority, she should be placed in homelike environment and suggested the Father's elder sister and family would be suitable to take care of her for the time being.

40. Unfortunately, and for reason unclear according to the minutes of the case conference (Exhibit A-4), the Committee decided that S should continue to be placed in the Reception Centre pending follow-up discussion by the caseworker with the parents as to the child's long term arrangement.

41. This decision no doubt came as a surprise to the Juvenile Court when the learned Magistrate at the hearing on 17th April 1998 criticized, and quite rightly so I say, that the Committee did not appear to have taken the Child's welfare in mind and flatly refused to follow its recommendation. Instead the Juvenile Court ordered that S be placed under the temporary care of the Father with the assistance of his family after hearing the parties in Court.

42. The Father who started this child abuse incident is convinced that S had been abused which was his reason for bringing her to the hospital in the first place and triggered off a whole chain of reactions that were to follow. His evidence is that after he was driven away by the Mother in early February 1998, he returned one day to visit S and when he was not allowed into the house, he heard her crying and that M admitted that she had beaten S for revenge. He was therefore very concerned and decided to return on 1st March 1998 to see his daughter. He gave the details of what transpired in that incident in his 1st Affirmation of 28th August 1999 as follows :-

"8 One day, when I paid a visit to my daughter, I heard she was crying, and I asked outside the locked door why Siu beated my daughter, Siu said that she beated my daughter for revenge, that night I waited outside the locked door for the Applicant from 7.00 pm till 11.00 pm but I couldn't meet the Applicant and my daughter was crying all night. The next day, I phoned the Applicant about the matter of that night, she said it was a very simple thing and why I considered it so serious.

9 Three days later that was on or about 1st March 1998 when my daughter still lived with and under the control of the Applicant, I was waiting outside the door of the flat at Fanling Centre and I saw Applicant's father was with my daughter. I noticed that my daughter's eye was beaten by others and was swelling, so I took my daughter to Fanling Hospital immediately. After the doctor had examined the wound of my daughter, he found that it was a very serious case. He requested an ambulance to send my daughter to Alice Ho Miu Ling Nethersole Hospital ("the hospital") of which the doctor required my daughter to be admitted and stayed in the hospital. My daughter has undergone treatment and remained in the hospital for 19 days. Copies of the Bill and Receipt of the hospital showing the admission dates of my daughter are now produced and shown to me marked "WYW-4". When the hospital consider the case of my daughter, they found that it was a serious child abuse case. My daughter was suggested to live in Chuk Yuen Children's House. During the period of my daughter staying at the hospital, the Applicant had only come to see my daughter only five times. Did she really take care of her ? I stayed overnight for the whole period for the reason that if my daughter didn't sleep well at night, she had her father with her and also because I really hope she will grown up well in normal condition."

43. The Father had also in the same affirmation alleged that the Mother's younger sister P could testify that S was always beaten by M due to her fear that her mother would favour her half sister over her and therefore she wanted to take revenge towards S, an allegation which P did refer to in her own affirmation filed in support of the Father's case but which she subsequently refused to come to Court to be cross-examined, a matter which I shall deal with later in the judgment, but suffice to say that this is in fact all the evidence of alleged abuse by M on S by the Father in this affirmation of his or any other affirmations subsequently filed in these proceedings, or for that matter, in his evidence in chief.

44. It was in fact not until when he was asked by Ms Tsui, Counsel for the Mother, whether he had ever personally witnessed any abuse by M on S, that he started to give some details, including one occasion when S was about 1 year old when she was hit on the back of her head 3 to 4 times by M which caused her to cry, and many other times when she was forcefully pushed by M which caused her to fall on some occasions resulting in bruises or redness to her knees.

45. However, when he was asked why he had never put any of these incidents in his affirmations if he was so convinced that S had been abused by M, he explained that he only gave the most serious incident which he set out in Paragraph 8 of his 1st Affirmation, which explanation I find difficult to believe. He obviously did not find them serious enough to tell his lawyers or the social welfare officers involved, and even if they were true, which the Mother insists that they were not, I am not satisfied that there is sufficient evidence to say that they amounted to physical abuse.

46. What about the incident in Paragraph 8 of the Father's 1st Affirmation where he said he heard S crying from inside the house and that M was taking revenge on her ? Consider his evidence on cross-examination by Counsel for the Mother :-

"Q: In Paragraph 8, you said you heard M beat S ?

A: I heard S was crying, I knocked on the door, I couldn't enter, but I was able to talk to M, she said as I didn't treat her mother right, so she would not treat my daughter right.

Q: What else did you do ?

A: I waited outside.

Q: Were you able to see through the door gap that M was hitting S ?

A: I only heard S was crying.

Q: Did you hear anyone hitting S ?

A: I heard her crying for a long time, so I asked M why was S crying, she said as I had treated her mother badly, so she would not treat S well.

Q: So you have 2 reasons for alleging that M hit S, i.e. she was crying for a long time, and because of what M said ?

A: Yes.

Q: So were you worried about S's safety at that time ?

A: I was, so I waited outside for the Applicant to come home, but she didn't.

Q: What did you do to stop M from hitting S ?

A: I waited for a long time outside, and next day I telephoned the Applicant.

Q: What did you do that right to protect your daughter ?

A: I waited outside, but I couldn't enter.

Q: You said you were waiting there and heard S crying from 7 pm to 11 pm, for 4 hours, which caused you great concern, did you ever consider calling the police ?

A: I didn't call the police on this occasion because I wanted to wait for the Applicant to return.

Q: Waiting to see her was more important than your daughter's safety ?

A: No, I just wanted to wait for the Applicant's return.

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Q: You were waiting outside the door until 11 pm, then you left before the Applicant's return ?

A: Yes, I was afraid the caretaker of the building would drive me out, as he had done in the past.

Q: But during the 4 hours while you were waiting outside, was there any inference from the caretaker ?

A: No, but as he had kicked me out once in the past, so I decided to leave to wait in my car, also other neighbours might complain. I only wanted to wait for Applicant's return to ask her, also wanted to see what happened to my daughter, at that time our relationship was not too bad to involve the police.

Q: Did you eventually see the Applicant on that night ?

A: I did not see her, I waited past 2 am, I then left.

Q: Before leaving, did you go back up to the flat to check on your daughter ?

A: There was no noise, it was past 2 am.

Q: What did you do the next day ?

A: I telephoned the Applicant at around 6 am. I told her what happened and asked her why, she said it was small matter, and then she hung up.

Q: Did you ask her whether S was injured ?

A: She said it was nothing serious, but I went to her place at around 7 am, the Applicant was on her way out with S on her arm. After I was able to hold S, I want to report to the Fanling police.

Q: Why did you call the police ?

A: I saw daughter's eyelid was swelling.

Q: Did you ask the Applicant what happened to S's eyelid ?

A: She refused to say anything at the police station.

Q: But you said in Paragraph 9 of your Affirmation that it was 3 days after the incident of S's crying that you went back to the Applicant's home and not immediately the next day.

A: I did go to the police station the next day, but the Applicant went home with S, then on 1st March 1998 I again waited outside the Applicant's home for a long time, I knelt on the floor until 11 am, I saw the Applicant's Father returning with S, we were struggling, the police came, the applicant opened the door, I saw daughter's injury had become more serious, so I brought her to the Fanling Jockey Club Clinic.

Q: If you did take S to the police the next day after she was crying, and you saw her injury, why didn't you put this information in your Affirmation ?

A: Because no charge was laid by the police against the Applicant."

47. I find this evidence of the Father that he did not do anything except waited outside the flat when S was crying for hours with fear of being abused by M difficult to believe, as his action, or rather non-action cannot be reconciled, or only reconciled with great difficulty, with his emotional personality which was all there to be seen throughout his evidence with frequent outbursts of yelling, weeping and wailing whenever he described his concern for his daughter's safety. I believe it is more likely the case that he went to the Mother's home on that evening to see her and when M refused to let him in, S started to cry as she could not see her father, he decided to wait outside the door for the Mother's return but left without seeing her, and has now simply exaggerated the incident. The Mother believes that the Father later decided to make use of this allegation of child abuse to get S away from her after she refused to reconcile with him.

48. Consider the following evidence of the Father given further to cross-examination by Counsel for the Mother :-

"Q: 3 days later, on 1st March 1998, you went to the Applicant's home again ?

A: Yes.

Q: To see the Applicant ?

A: No.

Q: You knelt down on the floor because you wanted to go back to her home ?

A: No, I wanted to see my daughter.

Q: You had to kneel down in order to see your daughter ?

A: Yes, I knelt in front of the door.

Q: The Applicant asked you to do so ?

A: No.

Q: I put to you what you said is not true.

A: I don't agree.

Q: You went there on 1st March 1998 because you wanted to beg the Applicant to let you return.

A: This was one of the reasons, to see my daughter was also a reason.

Q: So it was for 2 reasons, for the Applicant and for your daughter ?

A: Yes.

Q: You even brought along flowers to propose to the Applicant?

A: Yes.

Q: But when the Applicant turned you down, you became angry ?

A: Not true.

Q: You then snatched your daughter away ?

A: Not true.

Q: You took her to the hospital and told the doctors there that someone had abused your daughter ?

A: No, I did not.

Q: You used you daughter to get back at the Applicant ?

A: Not true.

Q: You knew very well on 1st March 1998 that S's injury was from an accident ?

A: From my observation, I believed it was not accidental.

Q: You saw S 1 week before and noticed the bruises on her cheek caused from accident ?

A: I don't agree as I couldn't enter the Applicant's flat.

Q: But according to Dr Lee's medical report, which said that you told him that you noticed the bruises 1 week earlier, later you saw more bruises, so you reported the matter ?

A: Yes.

Q: So according to the report, you told Dr Lee that you noticed bruises on cheek 1 week earlier ?

A: It was serious.

Q: But earlier you told the Court that before 1st March 1998, you could not here noticed any injuries because you could not enter the Applicant's flat ?

A: I can explain, the injury got more serious.

Q: Are you saying that you noticed the bruises on S's cheek 1 week before 1st March 1998 ?

A: No, I only estimated it was 1 week old.

Q: Why then did you say earlier that the last time you saw S before 1st March 1998, you didn't notice any bruises on her cheek ?

A: I didn't say I did not notice, while we were on the way to the police station, her eye was already swollen.

Q: When was that ?

A: About 3 days before 1st March 1998.

Q: When I asked you this morning whether it was the 1st time on 1st March 1998 when you saw the bruises, you said yes ?

A: You asked me whether I saw any injury before going to the police station, prior to this I couldn't even enter her flat.

Q: I put to you that you never took S to the police the day before her injury incident ?

A: I don't agree.

Q: You only made this up after you realized your Answer and your Affirmation were inconsistent ?

A: I don't agree."

49. According to the Father's evidence, he went to the Mother's home on 1st March 1998 in order to see S and to propose marriage to the Mother. He even brought along flowers with him. There was clearly the intention to reconcile with the Mother and to bring their relationship one important step further, i.e. for marriage. With his obviously good feeling towards the Mother on that day, I find it difficult to understand why he decided to bring S straight to the doctor with allegation of abuse when he noticed the bruises on her eyelid without first at least try to get an explanation from the Mother. As Dr. Lee has pointed out in his evidence, small children do get bruises and injuries from accidents and fighting, and one should not so readily jump to the conclusion of child abuse.

50. From the evidence before me, I believe it is more likely a situation of the Father becoming so upset and disappointed by the Mother's rejection of him on that morning, and with his emotional and impulsive character, that when he suddenly saw the bruises on his daughter's face, he immediately connected it with something bad and improper and hence took the action as he did on that day.

51. I also find it doubtful about the Father's evidence that S has told him many times since under his care that she is still afraid of M because she has been beaten by her. His evidence that S has only told him the words of "Elder Sister Hits" with no other details is puzzling, and the fact that he did not press her for further details, nor did he inform the social welfare officers or his lawyers of this despite his expressed concern for the safety of S when she stayed with her mother during access is equally incredible.

52. It is true that the Social Enquiry Report prepared in March 1998 for the Multi-disciplinary Committee did reveal concern of the Mother's family members including her father and younger sister that they thought M was jealous of S and that she had been seen hitting S on the head and face on more than 1 occasion. According to the report, M also appeared to be a troubled child as she refused to talk to the social worker and had told the Mother of suicidal thoughts, but these matters about M had never been fully or properly investigated from the psychological or psychiatric aspects, partly probably due to her un-cooperation. However, even the social worker who had had direct contact with almost everybody involved in this case agreed in her report after her investigation that there was no evidence to verify the Father's suspicion that S had been abused. Her main concern for S at that time was in fact more about the lack of adult care for her in the evening and the effect of the strained relationship of her parents on her.

53. It is the Mother's evidence that there was nothing wrong with the relationship between M and S and that apart from some squabblings between them from time to time, like all siblings do when they were small, they were in fact on very good terms. According to her, M was a good sister to S and had been very helpful in taking care of her younger sister. She has produced many photographs taken from their family albums of the 2 sisters appearing interacting happily together as evidence of their good relationship and in rebuttal to the allegation that M had abused S.

54. Some of these photos, which were exhibited to the Mother's 1st Affirmation filed on 2nd August 1999, were taken before the March 1998 incident and, according to the Mother, show that M loved her younger sister and had enjoyed good time with her, and it was therefore impossible that she would cause harm to S.

55. I agree that these photos do show 2 sisters happily together. I am of course mindful that I am only looking at photos that the Mother wanted me to look at in support of her case, and that although a picture may be worth a thousand words, it may not necessarily tell the truth about everything. On the other hand, I cannot tell from these photos that, if M indeed disliked S, that she was only pretending to be happy whilst these photos were being taken. This is virtually impossible as they must have been taken at different times and occasions, and that the appearances of the siblings as shown in the photos do look to me as genuine at the time they were taken.

56. Having considered all the evidence before me, I have come to the conclusion that I cannot agree with the Multi-disciplinary Committee's findings in March 1998 that what happened to S then was one of highly suspicious child abuse case. I find that there was insufficient evidence to enable the Committee to arrive at that conclusion. In fact, according to the minutes of the 1st case conference, one of the members whom I believe to be best trained and equipped to conduct full investigation into these sorts of allegations, i.e. the police had actually concluded that it was not a child abuse case, suspicious or otherwise.

57. Some of the evidence before me were of course not available at that time before the Committee, and I have had the benefit of oral evidence from the parties properly given in Court which the committee did not have in March 1998, but even with the information then available before the Committee, I find that they did not have the proper basis to reach their conclusion. I believe that they might have been too hasty in making their findings by probably placing too much weight on the Father's story without giving proper or sufficient consideration to all the information before them, as they had similarly done later again in the 2nd case conference when they recommended, against the advice of the social worker and despite clear evidence that it was not suitable, that S be placed in the Chuk Yuen Children's Reception Centre, a recommendation which in fact drew strong criticism from the learned Magistrate at that time and was not followed by the Juvenile Court.

58. Having arrived at this conclusion of mine, I agree with Counsel for the Mother in her submission that it has been unfair to the Mother when S was snatched away from her in 1998 when the Father alleged child abuse, and that she has undergone a big psychological trauma when the Child was taken away from her and being confronted with the allegation of child abuse. Much as I am sympathetic to her for her ordeal, however, as Ormrod L J said in S(BD) v. S(DJ) (1977) 1 All ER 656 at 660, CA, the question is not what the essential justice of the case requires but what the best interest of the Child requires, and this requires me to consider the present arrangements for her care by the Father and what each party can provide for her care in future, which I shall now do.

The Father's Childcare Arrangement

59. S has since 17th April 1998 been living with the Father, initially at the paternal grandparents' public housing unit at Kwong Fook Estate, Tai Po and later at the Father's own 2-storey village house at Kowloon Hang, Tai Po where she still lives. It has an area of about 1,100 sq. ft. with 3 rooms on the upper level, and on the ground floor there is a sitting room and a dining room. There is also a garden in the front and back of the house of about 2,500 sq.ft.

60. S started school last year at On Yan Kindergarden and is now in her 2nd year. Her daily care arrangement is, according to the Father, set out in his 1st Affirmation as follows :-

"13d) If I am able to get the custody and care of my daughter, my family members and I will continue to take care of her study and daily life as follows :

Everyday Allocation of Time

I wake up at 7.30 am every morning to do my usual cleaning and dressing then at 8.15 am, I bring my daughter to On Yan Child Care Centre, the kindergarden that she is studying. The school studying time of S is from 8.45 am to 4.30 pm, and parents or family member can take their children before 6.00 pm. When the time is 5.00 pm, my mother will bring my daughter to her home at Kwong Fook estate to take dinner, having bathing and hair shampooing. By that time, not only my mother but my two elder sisters, one younger brother and my younger sister will back home and look after S altogether. At about 7.30 pm each night, I will escort my mother and daughter to the house at Kowloon Hang by car to stay there. Arriving Kowloon Hang house at about 8.00 pm, we take some fruits and watch Television, we then go to sleep at about 9.00 pm every night."

61. The Father has regularly worked in the insurance field for the past 10 years and is now a Business Manager of ES Life Insurance Company Ltd earning more than $15,000 per month. He says he has very flexible office hours and can get off work everyday by late afternoon either to collect S from school, or to fetch her from grandmother's home so that he can prepare dinner for her at home every night, and thereafter they would spend the time together watching TV or reading stories before going to bed.

62. The Father says that S would spend about 1 night every 2 week on average at her grandmother's home at Kwong Fook Estate when he is too busy with his work to fetch her home, which he says would in fact be to her benefit as she can enjoy the company of her cousin and her aunts. He also says that he would take her to see her relatives on Sundays including the families on the paternal, as well as the maternal side with whom he has maintained a good relationship despite his break-up with the Mother, which is one of the reasons why he wished to reduce access by the Mother as he wanted to spend more time with his daughter during weekends, although he also agrees that it is important to S's development to maintain good contact with her mother.

63. The Father admits that when S first came to live with him, he had some difficulties handling her due to his job and his lack of experience in childcare, and had had to rely quite heavily on help from the aunts and grandmother, but with his perseverance and good support of his family, he says he has since been able to provide what the various Social Welfare Reports found to be stable and satisfactory care for S. He also gives example of his previous difficulty in making S do her homework when she first started kindergarden, but with his help and patience, she is now able to finish her homework quickly and is doing well at school.

64. The Mother, however, does not agree that the Father has given proper care to the child. She has often complained to the social workers that S always appears untidy with mismatched socks and dirty clothes, that her teeth were yellowish and that she always has a running nose because, she suspects, that she has to bath herself even in cold weather. She also complains that S often returns home late, sometimes even after 10 pm as she could not reach her when she telephoned her earlier. As a result she believes that she did not have sufficient sleep and therefore would sometimes refuse to get up for school in the morning. She says she has also discovered on many occasions that S did not complete her homework, and that the Father has failed to attend school activities with the child.

65. One of the main disputes of the parties is whether the Father's job is as flexible as he claims to enable him to render adequate care for S. According to the Father, he is normally required to be in his office in the morning for staff meetings and thereafter it would be pretty much up to him as to how to use his time to meet with his clients and customers. It is however generally accepted that as some of the customers have regular office hours, the Father would have to meet or entertain them after 5 or 6 pm and sometimes this may lead to dinner with them in the evening and even outings on weekends.

66. It is also argued on behalf of the Mother that in addition the Father would also have to entertain his own staff and assistants from time to time as a reward or encouragement to them to sell more insurance policies since he, as a group leader, also stands to earn commissions on sales made by them.

67. The Father denies that he often has to meet with his clients in the evening as many of them are professional drivers who do not work regular office hours and hence their meetings can be arranged in the day time instead of in the evening, and on the rare occasions when he has to do so in the evening, which he says averaging only once or twice per month he would then let S stay overnight at her grandmother's home, and he fails to see how this would affect her. As to entertaining his staff, he says he simply does not earn enough to afford doing so.

68. His evidence, however, appears to be contradicted by his mother's who said in Court that she was always the one to fetch S from school everyday and that for 3 or 4 nights a week, which she later corrected to 2 or 3 nights, S would stay over at her place for bath and dinner in the evening before the Father would come to fetch her home at around 8 or 9 pm. She also said in her evidence that for about 1 to 2 nights a month S would stay over at her home when the Father was too busy with his work.

69. It is also the grandmother's evidence that after school whilst waiting for the Father to fetch her home, S would normally spend her time watching TV or playing by herself as grandmother would be occupied by household chores and preparing dinner. She also admits that sometimes the Father would leave S with her on Sunday while he would go off to tend to his own matter.

70. Having observed both the Father and the grandmother giving their evidence in Court, I believe that the Father, in his eagerness to show his ability to provide adequate care for S, may have exaggerated the amount of time which he can actually spare for his daughter, and I am inclined to accept the grandmother's account of the daily routine of S as more accurate.

71. This is not a criticism of the Father as a witness, but I believe that he has the same difficulties encountered by all working parents, i.e. having to juggle the limited time which he has everyday for his work, his personal needs as well as the needs and care of his daughter. It is quite an onerous burden, as he has on more than one occasion complained of having to do heavy household chores each evening after work including going to the market, preparing dinner, cleaning and washing while at the same time having to take care of his daughter, supervising her homework, keeping her company, etc. and that on weekends he is unable to spend much leisure time with S because of the Mother's access to her, which is the reason why he has requested to reduce the Mother's access to S.

72. All these reflect the reality that it is inevitable for working parents to have to rely on others in their childcare and in this case the Father is said to be doing the best he can under the circumstances for S with the regular assistance of the grandmother and, to lesser extent, of his sisters. This is apparently verified by the social investigation reports of both Ms Lui and Ms Law.

73. At the conclusion of her report of 24th November 1999, Ms Lui made the following remarks and recommendation :-

"S had been under the proper care of the Father and paternal grandmother after she was committed to the Father's care in April 1998. The Father had shown his care and concern to the child by re-arranging his work schedule for matching the child's care needs. Besides, his love to the child had resulted in the building up a deep father-child bonding. So far, the child had adjusted well to such arrangement. Positive progress was even reflected in her performance at nursery. Therefore, a variation of the care arrangement for the child at this moment might unnecessarily up-root the child's well-adjusted life pattern. Besides, in view of the poor relationship between the Mother and the stepsister M, the latter's complaints of the Mother's partial treatment towards S and her reluctance to live with the child, sibling rivalry might be inevitable if S was entrusted to the care of the Mother. Since the Mother was found to be unprepared to deal with such problems, it might impose unnecessary tension on the growth of S should the two siblings live together. Having considered the above, I am inclined to recommend that custody of the child S be granted to the Father (Respondent)."

74. Ms Law also reached similar conclusion in her later report of 19th April 2000 when she said as follows :-

"Summing up, the present investigation reveals that the Father has demonstrated his effort and commitment in taking care of S. He escorts the child home daily instead of simply entrusting the child to his paternal grandmother's care. Despite the dissatisfaction raised by the Mother, there is lacking evidence that the child is being neglected or ill-treated by the Father. Instead, the child is found to be under proper care with healthy development. No emotional or behavioural problem is found in school. Above all, S has developed very strong emotional bondage with the Father. Their relationship was observed to be intimate and affectionate."

75. Although both workers agreed in their evidence given at the hearing that the Mother may be more careful in the care of S who would look cleaner and tidier when she is with the Mother, they also found that the Father has been doing his best for S and that although the present care for her is not ideal, it is nevertheless adequate and satisfactory.

76. Not so, says the Mother. Firstly, she points out that it is not good for S to spend most of her time after school at the grandmother's home watching TV and only go back to her home at Kowloon Hang to sleep. If she continues to live like this, the Mother argues, it is doubtful that she can cope with her homework and studies when she goes into primary school. Furthermore, as grandmother speaks only Hakka and does not even know how to write her own name, there is very little communication between her and S and she cannot be expected to help her with her schoolwork at all. This may not be a serious problem at present, it is argued on behalf of the Mother, but in the long run it may hinder S's growth and development.

77. I agree that the grandmother's role in this case is not much more than that of a childminder by merely collecting S from school and thereafter providing her with whatever physical care she may need until such time when her father fetches her home, and that any emotional and intellectual guidance and direction for her will have to come from the Father, if she is to remain under his care and custody. Will he be able to do a proper job ? It is here that the Mother has the biggest objection.

78. According to the Mother, the Father is incapable of recognising or meeting the emotional needs of S, as can be amply evidenced by his hostile attitude towards the Mother and his reluctance to let her enjoy her weekly access to S, which she says will impede or obstruct the development of a good mother and child relationship, which will in turn certainly adversely affect the healthy emotional development of S. She has cited many such examples of the Father's behaviour in her various affirmations.

79. The Mother says that S was usually very happy to see her and had no problem going with her, but she has noticed that her behaviour has sometimes changed since last year, and she believes that it must have been due to the influence of the Father who has attempted to alienate the mother and child relationship. She also believes that the Father has been using S as a weapon to get back at her, which explains why he has made things difficult for her in her access to or contact with S, such as insisting that she returned the child to him despite the hoisting of typhoon signal No. 8, or his refusal to be flexible as to the time or venue for the return of S after access even when she was tired or sleepy, or his reluctance to let her talk to S on the phone in the evening. She believes that he just wanted to make things difficult for her and has not considered the interest of the child at all.

80. The Father denies that he has been obstructive to the Mother's access. His explanations are that S was sometimes not happy to go to the Mother's home as she was scared of M, that S is so attached to him that sometimes she would be unwilling to go with her mother, and that the Mother is not patient enough to handle S as she would easily give up whenever S showed reluctance to go with her during access. He insists that he has always tried to persuade the Child to go with the Mother but she just refused on some occasions. He agrees that access with the Mother is important to S and he has always been supportive thereof, he is however concerned that if custody of S is granted to the Mother, he would not be allowed by her to see S, which was why M has not seen her natural father all these years.

81. There is no doubt that the Mother has been experiencing some difficulties as to access since late last year. They are well documented in the correspondence between the parties' solicitors as well as the social welfare reports. The Social Welfare Officer Ms Law has also confirmed in her evidence that the Mother has from time to time complained to her of difficulties as to access of which she would then hold discussions with the Father with a view to improve the situation.

82. According to Ms Law, the Father's explanations were always that S was reluctant to go with her mother because of her close relationship with him, or that the Mother was not patient enough to persuade the Child to go with her. He has however never told her of S's fear of M because of her abuse. Furthermore, it is the evidence of Ms Law, in fact of Ms Lui as well, that despite the earlier suspicion of abuse by M in 1998, based on the observations of the social workers involved in the case the past 2 years or so, there is no concern that S would be physically abused during her stay at the Mother's home. Having already rejected the Father's evidence on this particular issue earlier in my judgment herein, I do not accept his explanation that S refused to go with her mother during access because of her fear of M as valid.

83. The remaining 2 reasons proferred by the Father are actually related to each other, i.e. because the Child was so attached to the Father that she needed to be persuaded to go with the Mother during access but the Mother was not patient enough to do so. I do not think there is any dispute that S has grown very attached to the Father over the past 2 years, a fact which has been readily observed by the social welfare officers in their investigation. It is therefore not unusual in these circumstances for the 4 year old to show some reluctancy to leave the Father after being taken to the meeting place for access. However it is also the evidence of the social welfare officers that S loves her mother and enjoys very much the time spent with her during access. It therefore seems strange to me that she would sometimes react, as she did on several occasions, by clinging on to the Father tightly, crying hysterically and steadfastly refusing to go with the Mother as if she was a total stranger.

84. There is no doubt of the Father's hostility towards the Mother. It is all there to be seen in his evidence given at the hearing when he accused her of being a prostitute, of how she treated him badly during their cohabitation, that she could not get along with any of her relatives, and the way she spoiled her elder daughter M. Clearly there was a lot of distrust and animosity towards her and he did not shy away from any opportunity to attack her character, such as the occasion when he said he saw the boyfriend of one of her sisters in a chance meeting leaving the building where the Mother resides with his hair appearing wet, and in the absence of any other evidence, he could immediately jump to the conclusion that he must just have had a rendezvous with her to have sex and afterwards he must have taken a shower and hence his hair was still wet when he left. Or when he found that the Mother had switched off her mobile phone in the evenings, he believed she must have gone back to work in the nightclub as a prostitute.

85. With this attitude of the Father, the Mother believes it is his deliberate attempt to alienate her from her daughter, which cannot be said to be in the Child's best interest, nor is it a behaviour fit for a good parent.

86. The Social Welfare Officer Ms Law agrees that if it was a deliberate attempt by the Father to obstruct access, it would not be in the Child's interest and would reflect poorly on his parenting ability. She however does not believe that to be the case. She sees it more a natural reaction of S to her parents' dispute over her the past 2 years which has brought pressure on her and caused her occasional reluctance to meet her mother as she feared that there would be quarrels between her parents everytime they came into contact with each other. She therefore suggests that the parties should co-operate more with each other over the access arrangement so as not to cause any more pressure on the Child.

87. This may explain why S would sometimes feel stressful when she was brought to meet her mother, but it does not deal with the Mother's point that the Father's hostile attitude towards her will continue to make access difficult for her thereby adversely affecting mother / child relationship which will not be in the Child's interest in the long run.

88. I agree with the Mother that it is the Father's animosity towards her that has caused the difficulties in her access to S. The Father's suggestion that the Mother should spend half an hour to 45 minutes persuading S in the street to go with her on each access is both absurd and unreasonable. It reflects either on his inability or unwillingness to get his daughter to go with her mother.

89. I doubt that it was for the former reason, since he is obviously able to get S to listen to him in other matters such as getting her to do her homework quickly or properly. I believe it is more likely that he was not willing to let S to spend too much time with the Mother, which is why he had suggested to both Ms Lui and Ms Law that the Mother's weekly access to S should be reduced. I note however that the access dispute appears to be more frequent after the Mother started the present proceedings in late last year, so it could be possible that the Father's behaviour might be the result of his fear of losing custody of S to the Mother, and that things may improve after the proceedings. Possibly, but definitely not certain in view of his deep rooted hostility for the Mother.

90. In addition to his unwillingness to allow her to have smooth access to S and thereby alienating the mother / child relationship which is important to the Child's proper development, the Mother also criticises that the Father is not a suitable custodial parent because of his violent and impulsive character. She says that he is unable to maintain self-control which would not be beneficial to the emotional and psychological development of the Child. She believes that he has not properly considered the delicate emotional development of the Child when he acts impulsively in front of the Child, such as using foul and abusive language to insult her in the Child's presence, including calling her a prostitute which would cause S not to respect her mother, or as according to the Social Welfare Officer Ms Law, to lose her own self-esteem or confidence.

91. In support of her allegation that the Father has a violent and impulsive prosperity, the Mother has cited a number of examples in her various affirmations, including his threatening her with a chopper during their cohabitation to demand sex and assaulting her twice in 1998 resulting in his being charged by the police and eventually fined by the Court, his attempt to go to M's school to publicise her background in order to embarrass her and M, his use of abusive language in public to insult her in the presence of S, and worst of all, his teaching S to call her a prostitute.

92. The Father denies that he has any violent prosperity. He insists that he has never assaulted the Mother except for the incident in March 1998 over the suspected abuse of his daughter which led to a quarrel and minor body contact with the Mother but she never actually suffered any injury at all. He also denies ever trying to embarrass M at her school or teaching S to call her mother a prostitute, although he admits that there was an occasion that S might have overheard him using the word "prostitute" when he was quarrelling with the Mother on the phone, and that afterwards she might have mentioned that word to her mother without knowing or understanding its meaning.

93. As stated earlier in my judgment, I find the Father to be a emotional person. His action in taking S to the hospital on 1st March 1998 without first enquiring with the Mother of how she received the injuries on her face was certainly impulsive, irregardless whether it was out of his genuine concern for the child, or, as alleged by the Mother, his proposal for reconciliation was rejected by her. His insistence in bringing S home immediately after the Mother's access in the incident on 27th June 1999 and bursted into anger resulted in a heated quarrel with the Mother in public simply because she wanted to buy some bread for S to take home was impulsive too. With such emotional and impulsive character, and with his hostility to the Mother it is no surprise that the Father, when in anger or frustration, would be abusive and insulting towards her including calling her a prostitute or other derogatory terms, and I believe that he has not only done this during his confrontation with the Mother whether in person or on telephone with her, but also on occasions when he talked about her at home or in his family in which the grandmother, judging from her evidence in Court, is also quite hostile to the Mother. I believe it is under these circumstances that S had picked up the word "prostitute" with which she would sometimes refer to her mother, but not, as suspected by the Mother, that she was intentionally taught to do so by the Father.

94. This of course does not excuse the Father for badmouthing the Mother, the term as used by her Counsel, in the presence of S as it would still have an adversed effect on her emotional growth and development, and would reflect badly upon the Father's parenting skills. Ms Law, the present Social Welfare Officer, however, is of the view that the Father has been receptive to her advice to try to control his temper and to smooth the Mother's access, and in time when these proceedings are over, it is hoped that the parties' animosity for each other will eventually die down, along with the stress and pressure on S as well.

95. There is no doubt that despite the favourable comments of both Ms Lui and Ms Law about S being a happy child with good school performance under the adequate and satisfactory care of the Father and his family, the present arrangement for her is far from ideal and, as Ms Law has agreed in her evidence, there is limitation in the Father's parenting skills which leaves room for improvement.

96. There is also no doubt that the Mother has the advantage in terms of time available for the care of S as she no longer works, relying instead on public assistance. She has child care experience as she was the primary carer of S during the first 2 years of the Child's life and is, according to Ms Law, more patient and attentive to the needs of S who would always appear tidier and cleaner when she is with her. She should also be able to better supervise S's schoolwork and studies in view of her education background and her previous experience as a private tutor. She should have better understanding of the future needs of S as a girl in particularly when she reaches her puberty and becomes a teenager. A close friend of hers, a Madam who has children of similar age group of S, has also filed an affirmation in her support by giving a generally good impression of the Mother as a caring parent. It therefore seems natural, in the circumstances, that S should be returned to her care. Her Counsel says it is only fair and just to do so in view of the way S was removed from her. The matter, however, is not so simple. Not only is the Father against it, both the Social Welfare Officers Ms Lui and Ms Law, as well as the Official Solicitor representing S are all against the Mother as far as S's custody is concerned, and they all have one common major reason, amongst others, for their decision. Before I come to that, I shall first deal with the Father's other reasons.

97. According to the Father's 1st Affirmation, the Mother does not have good relationship with her family members, some of whom such as her father and sisters in fact did speak out against her at the Juvenile Court and supported the Father's application for care and control of S in that proceedings. In the present case one of the Mother's younger sisters P had also filed an affirmation on 30th August 1999 in support of the Father's application. In that short affirmation P said that she found her elder sister not a good mother and not suitable to look after S. Unfortunately she did not give any specific details other than the fact that she had seen M hitting S on several occasions in the presence of the Mother. Nor did she explain how this caused her to conclude that the Mother was not suitable to look after S, or why would S suffer psychological damage if she were to live with the Mother and M, in particularly of the fact that there is absolutely no evidence that S had suffered any psychological effect during the time when she was residing with them.

98. The only other complain of P of the Mother was that she had treated the Father rudely and that if the Mother was given custody of S, she had her family members would not be allowed to see S. Again she failed to give any detailed explanations, and despite being served with the Mother's notice of cross-examination, she refused to attend the hearing to give evidence for the Father and hence the Mother was unable to challenge her affirmation by way of cross-examination. Under the circumstances I agree with Counsel for the Mother that I should not place any weight on P's affirmation.

99. Although the Mother denies that her relationship with her family is not good as alleged, saying in fact that she has the support of her younger brother, there is no doubt that her father and younger sisters all sided with the Father at the hearing in the Juvenile Court. This still seems to be their present attitude according to the social investigation report of Ms Law, although unlike at the Juvenile Court, none of them has been willing to come to this Court to give evidence against the Mother. It is therefore not certain why their relationship with the Mother has become so strained. There are also allegations by the Father that the Mother had refused to pay money to support her own father and that she had stolen the boyfriend of one of the sisters. None of these are admitted by the Mother or were proved at the hearing, nor are they really relevant to the issue of her parenting ability, nor as is indeed also her past failed relationship with other men, since almost all parties that have come before the Court on their custody dispute have in one way or the other failed in their relationship, and it is usually no business of the Court to know the reason of such failure.

100. The Father's concern that because the Mother has no family support, in case of emergency, she will have no one to assist her in taking care of S is, in my view, unnecessarily exaggerated. I am sure that if and when it happens, which should be rare, her family members all of whom genuinely care about S, would be willing to put aside whatever personal differences they may have to assist in looking after the child, and so would the Father and his family.

101. It is of course another matter if the Mother's character is so flawed that she is not fit to have custody of S. On this the Father's evidence seems to be that because the Mother is greedy and of low morality, and as she had worked as a prostitute in the nightclub in the past, it is unlikely that she would be content to rely on lowly public assistance and that she would eventually return to her former vice which will prevent her from taking proper care of S and will also have an adversed impact on the Child's emotional development.

102. Both the Social Worker Ms Lui and Ms Law, however, have said in their evidence that when considering the Mother's parental fitness or suitability, they did not think her past occupation is relevant, and that they have not found any evidence that she has gone back to work in the nightclub as alleged by the Father, or any indication that she may do so in future.

103. The strongest argument against the Mother common amongst the Father and the Social Welfare Officers as well as the Official Solicitor, seems to centre around M's poor relationship with the Mother and S which they all fear will have significantly bad effect on the child.

104. M is now 15 and is said to be a problematic and rebellious teenager who was described unfavourably by Ms Lui in her report of 24th November 1999 as follows:-

"M had to repeat Form One this year. The girl had gone astray after she was promoted to Form One in 1998. As told, she had mixed with some undesirable peers and stayed overnight outside. In June this year, M had home abscondance for nearly two weeks and the Mother had made missing report to the police. Sine M had missed the term examination and she had far behind academically owing to frequent absence from school, she needed to repeat Form One this year. Yet, the girl quit schooling after attending school for two weeks and went missing from home again. Having been located by the Mother and been warned by the police, M had stayed at home during the past week. She planned to study at a practical school at Ma On Shan and was now fixing an interview with the school principal.

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M's attitudes had also been explored when she was interviewed alone at home. M was not very keen on claiming the stepsister's custody. It was obvious that she had a lot of grumbles towards the Mother for her partial treatment to S. For instance, M complained that the Mother had not spared much time to look after her when she was young and left her to the care of the maternal grandmother. However, she would spare all time in catering S during the latter's staying access. M also complained that the Mother treated S better by cooking more dishes for her. Having forbidden her to turn on the air conditioner during summer time, the mother would let S enjoy air conditioning. Besides, M expressed that she disliked the noises produced by the sister during her staying access at home. However, since the Mother always nagged on her about the wish of getting S's custody, she would show support to the former to stop her nagging. Nevertheless, M expressed clearly that she would not assist in the care of the sister.

M also shared a lot her grumbles towards the relationship problem with the Mother. Blaming the Mother of neglecting her when she was young, M also complained the Mother of valuing the previous cohabitants including the Father more than valuing her. Furthermore, with the excuse that she had spine problem, M was very dissatisfied that she had to shoulder the responsibilities of providing daily care to the baby S in the past. According to M, she had to feed, bathe and look after S all day. Claiming that she preferred to be cared instead of caring for the siblings, M did not support the Mother's intention to claim S's custody. In short, she was jealous of Mother's love for S but adopted a laizze faire attitude towards the custody issue."

105. In her report Ms Lui concluded that because of the poor relationship between the Mother and M, the latter's complaints of the Mother's partial treatment towards S and her reluctance to live with S, sibling rivalry might be inevitable if S was entrusted to the care of the Mother, and since the Mother was found to be unprepared to deal with such problems, Ms Lui feared that it might impose unnecessary tension on the growth of S should the two siblings were to live together.

106. In the more up-dated report of 19th April 2000, Ms Law found that M has quitted school since September 1999 and that she had been idled at home for months until about April 2000 when she started some short courses at the technical institute which she found not very interesting. Ms Law then described in details of M's views towards the custody of S which I find useful to reproduce in full as follows :-

"14. M was interviewed alone on 17.4.2000. she frankly expressed that she found the custody issue very disturbing and she did not want to be involved in the issue. Therefore, she left home to avoid meeting the undersigned during the latter's home visit on 2.4.2000.

15. After warming up, M was open and expressive in sharing her relationship with her Mother and explaining her views towards S's custody issue. She regarded her relationship with the Mother as inharmonious. M described her Mother as nagging and the girl felt she was not being respected at home. She did not want to communicate with her Mother and even preferred to have meals at her bedroom to avoid meeting her Mother. M rejected counselling services on her relationship problem as she regarded it useless. The Mother, on the other hand, alleged that she had good relationship with M.

16. Regarding the custody of S, she stressed that she did not have strong view "無所謂" on the issue. Neither she had eagerness to reunion with S nor had rejection towards the child returning home. She elaborated that she was not jealous of S although the Mother treated S better by preparing more dishes for the child and allowing S enjoyed air-conditioning.

17. She believed that there were pros and cons for S to be under the Mother's care. On one hand, she supported her Mother in taking care of S because Mr Wong was a "bad guy" and it was better for S, a female to be under the care of the Mother. Besides, she believed that the Mother would shift her attention to S and became less disturbing to her. On the other hand, she also mentioned reasons for not supporting it. She found S's behaviour annoying, such as making noise by hanging her door with toys, making her dolls dirty, not tidying up the toys after playing etc. Furthermore, she thought that Mr Wong had a big family which could provide S more warmth and love.

18. M's interaction with S was observed during the home visit on 29.1.2000. The child does not show any rejection towards M and has approached her for food when the latter was eating. However, M got angry easily and blamed the child for making the floor dirty. M is found to be lacking patience in handling the child's behaviour.

19. During the interview with the Mother's lawyer, M signed a statement on supporting her Mother's claim of the custody. When the girl was questioned about the reasons for having different views before the undersigned and the lawyer, she explained that she signed the document because her Mother sat next to her and she did not want to be disturbed by her afterwards."

107. At the conclusion of her report, Ms Law explained why she was not supportive of the Mother's case as follows :-

"The Mother shows genuine concern towards S. She is attentive to the child's physical needs. However, she has difficulty in developing an affectionate relationship with her daughter, M. The girl has strong rejection towards her Mother. Apart from such inharmonious mother-daughter relationship, M's lacking patience in handling the child's misbehaviour also increases the tension in the sibling relationship, which is not beneficial to the child's development."

108. It is also argued on behalf of the Father that what has happened to M the past few years is the result of the Mother's inability to properly discipline her as she had a tendency to spoil her in the past, such as allowing her to waste her time talking on the phone for long hours at night, and failing to give her proper guidance and supervision. The Father argues that M's present situation accurately reflects the Mother's poor parenting skill, and he fears that the same fate will happen to S if she is to be put under the Mother's care.

109. There is no doubt that M did have some behavioural problems the past few years after she started secondary school as conceded on behalf of the Mother. Whilst it may be true that teenagers nowadays can be very rebellious, but not all rebellious teenagers quit school after only Form 1 or run away from home, let alone twice in her case. Her situation was certainly alarming and she definitely needed adult help and guidance. Ms Law has suggested counselling by her department but it has not been taken up by her or the Mother

110. It is however argued by the Mother that it is not fair or appropriate to place so much weight or focus on M's problem to the extent that the Mother's virtue as a custodial parent to S has been unreasonably overlooked. After all, each child is different, submitted by the Mother, and it does not follow that when an elder sister does not perform well, the Mother should not be allowed to look after a younger sister.

111. It is further submitted by the Mother that one should be more sympathetic looking at M who is said to be the victim of the poor relationship between the parties. It is argued that for a teenager such as M to witness how her mother failed in her relationship with the father of her step-sister is not an easy task for her, in particularly that when the Father was so abusive and impulsive. All this, according to the Mother, has affected her value of people and things around her and might have also disturbed her academic interest. It is therefore not as simple as the Mother being insensitive to the emotional needs of M and thus to doubt her parenting ability. It is argued that when the Social Welfare Officer Ms Law placed so much weight on M factor not to give custody of S to the Mother, she has taken a too simplistic approach to the matter.

112. It is unfortunately not very clear as to exactly what caused M's behavioural problems, which is relevant as it is an important factor in both the Father's case and the basis of the Social Welfare Officers' recommendation.

113. The Mother's background may shed some light. The 1st Social Investigation Report of Ms Lui has the following description :-

"The Petitioner (Mother) was born in Hong Kong. She ranked the eldest among four siblings. After completing Form 5 in 1981, she worked as clerk at various companies. In 1984, she cohabited with Mr Siu when she got pregnant. Within the cohabitation, her elder daughter M was born in March 1985. As told, Mr Siu was irresponsible financially so the Mother separated from him when M was one year old and moved back with M to the maiden family. With the maternal grandmother's assistance in caring M, the Mother worked to support the family. Due to her thyroid problem, the Mother failed in different jobs and started to work as a night club waitress in 1986. The Mother had once stopped working at a nightclub in 1989 when she entered into cohabitation with another man. However, as the man liked to mix with different women and did not support her financially, the Mother left the man. She lived with the maiden family again and resumed working at a nightclub. In 1994, the Mother moved out with M subsequent to the death of the maternal grandmother. Besides, the Mother claimed that the grandfather had sexually molested her."

114. It appears that M was mainly taken care of by her maternal grandmother during the early years of her life when the Mother had to work full time and actually lived elsewhere from her at some stage, a fact confirmed by M to Ms Lui in her report. It was not until 1994 after the death of the grandmother when the Mother moved away from the grandfather with M that she resumed her primary care. By then M was already 9 years old. It was also about the same time when the parties started their cohabitation.

115. By all accounts it was a stormy relationship and, as submitted by Counsel for the Mother, M was there to witness their failed relationship and bear the brunt of their disputes. It is also no secret that M and the Father did not like each other at all, with her calling him a "bad guy" who had abused her mother, and him accusing her of being a spoilt child with no discipline and of being abusive to her half-sister. All these must have a significant effect on M and her behaviour and I do not believe it was a mere coincidence that she was doing fine at school in the past, as confirmed by Ms Law, but so poorly in the secondary school at about the same time when her mother's relationship with her step-father began to deteriorate.

116. One of M's main complaints to Ms Lui, according to her report, is that she resented having to provide daily care to S including feeding, bathing and looking after her when the Mother had to work. Mmust be then only about 11 or 12 years old and having to do all these at the same time of taking care of herself and her studies, it must have been a heavy responsibility and burden to her and one cannot help but sympathize with her sentiments as expressed to the Social Welfare Officers.

117. As I have pointed out earlier, there has been no direct investigation as to the cause of M's behavioural problems, but based on what she had disclosed to both Social Welfare Officers in their reports as well as the evidence before me, I believe the failed relationship of her mother with S's father and the various events leading to her being accused as a child abuser, whilst herself still being a child, must have had a terrible impact on her and her school performance, and with her resultant resentment towards everybody around her including her mother, which is probably also the reason why she later refused to co-operate with Ms Law in her investigation of S's custody, culminated in her quitting secondary school and running away from home. Of course the insensitive ways the Mother handled her problems such as demanding to see her friends' identity card or pretending to be her on the phone when her friends telephoned her did not help the situation, but it would be grossly unfair to blame the Mother and her parenting skills for everything that had happened to M the past few years.

118. According to Ms Law's report of 19th April 2000 and her evidence given in Court, M appears to have settled down and there has been no further serious problem such as running away from home, but when she is at home, she would hide in her room and there appears to be little communication with her mother. Ms Law reported that M still has strong rejection of her mother and that their relationship was inharmonious, which together with her lack of patience in handling S which may increase the tension in the sibling relationship are all causes for Ms Law's concern that it may not be beneficial to S's development in the Mother's household.

119. The Mother denies that there is any communication problem with M or that their relationship is inharmonious. She insists that there is nothing wrong with Mother than some rebellious behaviour typical of today's teenagers such as preferring to do her own things and to hang out with her friends rather than with her mother. After all, she is now 15 and is capable of looking after herself, and she does not need close attention or supervision.

120. The social worker who was attached to M's former secondary school at the time when M quitted school, a Ms Pak also gave evidence for the Mother in which she confirmed that the Mother did approach her on many occasions for assistance and discussions about M's schooling problem due to her rebellious character which is typical of teenagers today and that she had little interest in her studies. She agreed that it showed that the Mother was very concerned about M's welfare.

121. I agree with Ms Law that perhaps there should be better communication between the Mother and M and that their relationship could have been more affectionate, but she seems to have unnecessarily placed too much concern on their inharmonious relationship. Ms Law was able to interview M on 17th April 2000 after she had deliberately avoided her in an earlier appointment. It was in this interview that Ms Law got her first hand knowledge that M's relationship with her mother was inharmonious, which she told her so, that she found her mother nagging and that she was not being respected at home. As a result M said she did not want to communicate with her mother and preferred to stay in her bedroom to avoid meeting her mother, but the Mother, however, insisted that her relationship with M was good. This is apparently all the basis for Ms Law to conclude, after just one interview which took place some 8 months ago, that the Mother has difficulty developing an affectionate relationship with her daughter and that M has strong rejection towards her mother. I have to say that this approach of Ms Law, as submitted by Counsel for the Mother, is too simplistic.

122. I appreciate that as M was not the subject of this custody dispute and therefore, quite understandably, she did not undergo the kind of detailed investigation which a social welfare officer would normally make, as in the case of S, but as I have pointed out earlier, she is all along obviously a very important factor in the Father's case against the Mother, and now that it seems that she is also one of the main reasons why Ms Law is against giving custody to the Mother, shouldn't Ms Law have expanded her investigation on M's relationship with the Mother instead of just relying on what she saw and heard in just one interview which lasted at most a couple of hours several months ago ? Has their relationship since deteriorated or improved ? Is it true that M still hides inside her bedroom every day to avoid her mother ? Since the Mother has denied that this is the case, explaining that M was merely avoiding Ms Law's further investigation, and relying on the fact that she was even willing to attend at the lawyer's office to sign a statement in support of the Mother's case as evidence of their good relationship. Hence, without further investigation, why did Ms Law believe M and not the Mother ? How did she know that M was not exaggerating things or was simply blowing off air when she told her all these things in that single interview ? I am afraid that there has simply not been sufficient investigation and assessment of the relationship between M and the Mother by Ms Law to justify her concern or her recommendation against the Mother, in particularly in view of the fact that she also found the Mother to have other virtue as a parent while the Father has his limitation.

123. The same criticism can also be levelled against Ms Law's other major reason against giving custody of S to the Mother, i.e. her finding of M's lacking patience in handling S's misbehaviour which she fears may increase the tensions in the sibling relationship which is not beneficial to the Child's development. Here again it appears that Ms Law got her first hand impression from a home visit on 29th January 2000 when she observed that while S did not show any rejection towards M and in fact approached her for food, M however got angry easily and blamed the Child for making the floor dirty. Then came the interview with M on 17th April 2000 when she complained that S is sometimes too noisy and disturbing and that she would dirty things or leave her toys lying on the floor.

124. Counsel for the Mother argues, however, and I have to admit that I agree with her, that these complaints of M about S are in fact no different from any other squabbling, bickering and sometimes even fighting amongst siblings in any typical family having more than one child in the household. Here Ms Law appears to have unnecessarily exaggerated her concern about the siblings' relationship, in particularly of the fact that S has on more than several occasions expressed to her that she is happy with her elder sister. Furthermore, Ms Law did not seem to appreciate the fact that there is a 10 years age gap between M and S and naturally there is not much in common in their interest, preference and almost everything else between the 2 of them in their daily activities and it is not surprising that M would sometimes complain about S for disturbing her when she was doing her homework, or when S left a mess in M's room, and I fail to see how these could possibly be sufficient to lead Ms Law to conclude that there would be tension between the siblings if they are to live together.

125. Even assuming that Ms Law is correct that M is indeed jealous of S and does not have the best of sibling relationship with her, which I have my doubt in view of their generally amicable relationship in the past when they were living together as evidenced by some of the photos taken of both of them appearing happy together as recently as at S's school party, now that M is much older and obviously more busy with her own peers and activities, and with the Mother now not working and can be a full time mother to S and hence will be with her at all time, I fail to see any risk that S may be exposed to any adversed or negative action or impact M may have on her. For sure that would be occasional squabbling, bickering or even fighting between the siblings if they are to live together in future as most siblings sometimes do, but I do not think they will be any more serious or harmful than in any other family with children, and conversely, no doubt there will be benefit as well to S to have an elder sister, albeit someone much older and seemingly not very patient with her, in her life during her growth and development, something which Ms Law and Ms Lui in her earlier report, have apparently failed to explore at all, probably clouded by their overall negative impression on M's attitude towards S.

126. Ms Law in both her report and evidence has found the Father's present care arrangement for S satisfactory, despite his various limitation and shortcoming. I have earlier in my judgment already found that the Father in fact has to spend more time on his job than he was prepared to admit, including dealing with his clients and staffs in some evenings of the week and sometimes even on weekends, and that on the day he is less busy, he will have to divide his limited time in the evening between S and the household chores. He will also have to rely quite heavily on the grandmother everyday in the afternoon during which S will be very much on her own because of language problem with the grandmother who will also be busy with her own household chores. The physical care for S under these circumstances may appear to be adequate or satisfactory to both Social Welfare Officers, but when they reached this conclusion, they did not appear to have considered, or considered properly, the importance to have both stability and consistency in any child care arrangement on the child's growth and development, and the availability of a better alternative from the Mother. It is important for a small child like S to know who her primary carer is, someone who will always be there to teach and guide her, to comfort and console her when she is sad, to praise and encourage her for doing good, and to discipline and punish her for being bad. It is important that this primary carer remains constant and that his / her parenting skills be consistent to his / her character and personality. At present S's primary carer in the afternoon is her grandmother, and in some evenings it will be the Father when he is not busy, in other evenings it will be the grandmother and / or the aunts. No doubt they all have different character and different childcare method. One may be more tolerate, whilst the other more demanding in discipline. This will unfortunately cause confusion, anxiety and pressure to the Child in her growth.

127. It is equally important for S to have a consistent and well-planned schedule of her daily activities and for her to know such schedule in order to carry out her daily activities properly which will no doubt increase in time, such as when to get up for school, when and where to play and to do her schoolworks, when and where to have her meals and when and where to go to bed. At present her daily activities are not fixed, they all depend on when and whether her father will become available to collect her from the grandmother's home after school. It may be in the late afternoon, or in the evening, or not at all. So everyday S will not know when or where she will eat her dinner, do her homework, take her bath or go to bed. These are all normal and natural activities of part of a child's life with which she is to learn discipline but which should also be enjoyable to her, rather than causing her uncertainty, confusion and insecurity. Again, neither Ms Lui nor Ms Law appear to have properly considered this important factor in their reports.

128. S is now 41/2 year old and will soon be 5 next year. She has already started kindergarden and will soon go on to primary school when she will meet many more new friends and will be exposed to new things in this ever increasingly complicated and sophisticated society of ours. She will need all the help she can get from her parents not just for her physical growth but more importantly her mental and emotional development in order to prepare and equip her to meet her new challenges, and it can only come from a parent who is able to devote such time, patience, and energy to teach and guide her to be good and honest, to differentiate between right and wrong, and in time to hopefully bring her up to be an upright person and useful member of the society. To achieve all these that parent must possess a good understanding of proper childcare method as well as the Child's needs including her needs to have both parents in her life despite their differences, and to be able to encourage the child to keep in close contact with the non-custodial parent and to facilitate that parent's access to her. The Father, with his limited time, his emotional and impulsive character which has clearly led to some devastating repercussions, as we have all seen, his hostility towards the Mother, and his lack of patience or proper understanding of his daughter's needs, will unfortunately have a much more difficult task in his hands than the Mother, who although far from perfect herself, has the advantage in terms of time, devotion and patience to provide better care and attention to the Child's needs. She has a better understanding of the Child's needs and is said by the Social Welfare Officer Ms Law to be more likely able to encourage and facilitate access between Father and child. Above all, she will be the sole consistent primary carer to S throughout the day and will provide her with a constant and stable home environment and daily schedule of activities, all of which are important to the normal, healthy and happy growth and development of S. I am therefore convinced that S's interest will be best served by granting her custody to the Mother.

129. I accept that S has a closer attachment to the Father probably because she has been with him the past 21/2 years and, as explained by the Social Welfare Officer, because of her loyalty to him due to her parental conflict, but there is no dispute that she also has a very close and loving relationship with her mother, as evidenced by the happy time she has during her mother's weekly access to her. I therefore do not share the concern of the Official Solicitor of the disturbance which may be caused to S if she is to be removed from her father to her mother. I agree that the past 21/2 years that she has spent under her father's care is a long time in her short life, but she is also going back to her former home where she has spent her first 2 years and where she has stayed every weekends and holidays and, as Ms Law has said, with the help of her parents to smooth her transition, she should be able to overcome any difficulty arising from the change and any such concern should not outweigh all the benefits that will come with such change.

130. I know that my decision does not correspond with those of the Social Welfare Officers and the Official Solicitor, but as already pointed out in my judgment, I do not think it is sufficient just to be complacent with the present arrangement for S, it is equally necessary and important to consider her future needs as well, both emotionally and physically, otherwise I would be failing my duty to do what is best for her.

131. Earlier in my judgment I quoted Ormrod L.J. in S. v. S. by saying that the question is not what the essential justice of the case requires but what the best interest of the child requires. For the reasons aforesaid I am convinced that the best interest of S requires that her custody care and control be given to the Mother with reasonable access including staying access during weekends and her major school holidays be given to the Father. It is incidentally that in doing what is best for S, essential justice, I hope, will also be done in this case for what the parties have done and gone through the past few years, no doubt every bit as traumatised as S, and M for that matter, and again I hope, with the assistance and counselling of the Social Welfare Officers, they will eventually get over their differences and get on with their life, if not for their own sake, at least for their beloved daughter.

132. In conclusion, I grant custody care and control of the child S to the Applicant Mother and, taking the advantage of the fact that the child should now be in her school vacation for Christmas, that she should be delivered, together with her personal belongings, to the Mother within the next 48 hours. As I have said earlier, the Respondent Father shall have reasonable access including staying access on weekends and major school holidays starting with the coming Christmas, the details of which I will leave to those representing the parties with the assistance of the Social Welfare Officer, failing which there will always be liberty to apply. There shall also be a supervision order by the Director of Social Welfare for 12 months with liberty to submit progress report on S. As all parties are legally aided, I accept their suggestions that there be no order as to costs save that their own costs to be taxed on Legal Aid Regulations. Lastly, I wish to express my gratitude to Counsel for the parties and the Official Solicitor as well as the Social Welfare Officers for their valuable assistance to the Court in certainly one of the most difficult cases that have come before me. I shall next hear the parties on the question of the Child's maintenance, as there was never any opportunity for it to be properly canvassed at the custody trial.