LYAG v. YSG (YX)

HCMP 802/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 802 OF 2016

(ON AN INTENDED APPEAL FROM FCMC NO. 11445 OF 2014)

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REASONS FOR JUDGMENT
AND
JUDGMENT ON COSTS

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Hon Chu JA (giving the Reasons for Judgment and Judgment on costs of the Court):

1.  This is the respondent's renewed application for leave to appeal against part of the order given on 28 January 2016 by Her Honour Judge Melloy ("the Judge") sitting in the Family Court concerning the evidence for the contested proceedings on the arrangement of the children of the family.  The respondent’s previous application for leave to appeal was refused by the Judge on 21 March 2016.

2.  The petitioner opposes the application.  Pursuant to directions of the Court, both parties have put in written arguments.  An oral hearing was held at the request of the respondent.  After hearing counsel’s oral submissions, we refused to give leave to the respondent to appeal and reserved our decision on costs.  Our reasons for judgment and judgment on costs are set out below.

Background

3.  The petitioner and the respondent are husband and wife.  They have two children, N and C, who were born in 2003 and 2007 respectively. In 2014, the petitioner petitioned for divorce, which is pending in the Family Court.    

4.  The custody and access arrangement of the two children are contested.  The petitioner seeks joint custody with care and control to the respondent and reasonable access to himself while the respondent wishes to have sole custody of the two children.  The respondent alleges that the petitioner has mental health issues, which, she says, are pertinent to the dispute on custody and access.  The petitioner denies the allegations.

5.  Since the petitioner moved out of the matrimonial home in 2014, N has refused to see or speak to him.  The younger child, C, has been seeing the petitioner, but access has not been without problems.

6.  In September 2014, the petitioner and the respondent began consulting a psychiatrist in the US, Dr Sirgay Sanger.  The petitioner stopped attending consultation session with Dr Sanger in April 2015.  It is the petitioner’s case that he and the respondent both received counseling from Dr Sanger in relation to N, with a view to moving the issue of access forward.  The respondent, on the other hand, contends that Dr Sanger is the petitioner’s treating psychiatrist.

Events leading to the Ruling

7.  The Judge ordered a social investigation report, which was filed with the court on 12 February 2015.  On 10 November 2014, the Judge also ordered that a child psychologist be appointed as single joint expert to assess and make recommendations regarding access arrangement between the petitioner and the children of the family.  After consulting the parties, on 5 December 2014, the Judge appointed Dr Anita Leung, a child psychologist, as the single joint expert.  Dr Leung rendered her report to the court on 27 March 2015 (“Dr Leung’s Report”).

8.  In the course of preparing her report, Dr Leung, with the consent of the petitioner and the respondent, requested a report from Dr Sanger.  Dr Leung’s request, which was communicated through the petitioner and the respondent, was for Dr Sanger to “just focus on the mental state of the parents, if any of [the petitioner and the respondent] has any enduring and pervasive problems that could have a serious negative impact on the children.”[1]  In response to Dr Leung’s request, Dr Sanger produced a report dated 4 March 2015 (“Dr Sanger’s March 2015 Report”), which was referred to in Dr Leung’s Report and made an annex to it.

9.  By her order made on 29 May 2015, the Judge directed that a therapist be appointed for N.  By a letter dated 29 June 2015 to the Judge, the respondent’s solicitors proposed to appoint Dr Sanger as N’s therapist.  The letter enclosed two letters written by Dr Sanger to Dr Leung, one was undated and the other dated 13 June 2015 (respectively “Dr Sanger’s 1^st Letter” and “Dr Sanger’s 2^nd Letter”, collectively “Dr Sanger’s two Letters”), which the Judge was asked to take into account when considering whether a therapist for N was appropriate at that stage.

10.  The petitioner objected to the appointment of Dr Sanger as N’s therapist. Eventually, on 9 July 2015, the Judge appointed a child psychologist, Dr Alison Pon, as N’s therapist.   Dr Pon subsequently provided to the Judge a progress report on N.

11.  On 21 September 2015, upon the petitioner’s application, the Judge made an interim access order allowing the petitioner to have access to C on Sunday.  This was later extended to include weekday and holiday access and also staying access.[2] 

12.  The 21 September 2015 order further directed that:

“Each party shall file and serve a report from a psychiatrist – who is not and who has not been a treating psychiatrist of either party as to the mental health of each of them. Such report to be filed 7 days prior to the [Children’s Dispute Resolution] hearing. (For avoidance of doubt a report from Dr Sanger will not be permitted.)”

13.  On 18 November 2015, the respondent filed a psychiatrist report on herself prepared by Dr Gabriel Hung (“Dr Hung’s Report”).  On 19 November 2015, the petitioner filed a psychiatrist report on himself  prepared by Dr John Wong (“Dr Wong’s Report”).

14.  The Children’s Dispute Resolution hearing was held on 25 November 2015.  No consensus was reached.  The petitioner complained that Dr Hung’s Report did not comply with the 21 September 2015 order.  The Judge adjourned the case to 2 December 2015 for directions on the trial on the arrangement of the children.

15.  At the hearing on 2 December 2015, the petitioner reiterated the objection to Dr Hung’s Report.  The respondent, on the other hand, sought to call Dr Sanger to give evidence at the trial on the petitioner’s underlying disorders, and as expert witness to give evidence on the impact of such disorders on children.  This was opposed by the petitioner. 

16.  At the respondent’s request, the Judge adjourned the direction hearing to 14 December 2015 to hear arguments on whether Dr Sanger should be permitted to give evidence on behalf of the respondent at the trial on the arrangement of the children, and on whether Dr Sanger’s March 2015 Report and his two letters should be on the court file as well as to deal with the petitioner’s objection to Dr Hung’s Report.   

The Judge’s decision

17.  After hearing arguments on 14 December 2015, the Judge handed down her Ruling on 28 January 2016 (“the Ruling”). The Judge made the following orders, which are subject matter of the present application for leave to appeal:

(1)    Dr Sanger’s two Letters shall not be produced as expert reports and shall not be relied on at trial.[3]

(2)    Dr Hung’s Report shall be removed from the Court file.[4]

18.  The Judge also refused the respondent’s application to appoint Dr Sanger as her expert and to give expert evidence at the trial.[5]

19.  In paragraph 28 of the Ruling, after acknowledging that the respondent’s concerns about the petitioner’s mental health are central to her case on the children’s arrangement, and accepting that she should be allowed to challenge Dr Leung’s Report and Dr Wong’s Report, the Judge said:

“In order to move matters forward it seems to me that it might be helpful for both parties to see a single joint expert – a psychiatrist to be agreed between them, to prepare a report on the psychiatric condition of each of them. He should have sight of all of the court documents filed to date. This psychiatrist should be completely independent and should have had no involvement with either of these parties or this case previously.”

20.  Ms Yip SC, who appeared for the respondent, took the view that the Judge had not made a direction, but was only proposing for the parties’ consideration, to appoint a single joint expert to report on the psychiatric condition of each of the parties.  Given that the order of 28 January 2016 has not yet been sealed and this part of the Ruling is not the subject matter of the present application, we shall leave it to the parties to seek clarification with the Judge.

21.  The Judge, while accepting that Dr Sanger’s March 2015 Report could remain on the court file as both parties had consented to its inclusion, and it is part of Dr Leung’s Report, took a different view on Dr Sanger’s two Letters.  She commented that the 1^st letter was quite extraordinary, and agreed with the petitioner’s solicitors’ observations that:[6]

“Dr Sanger does not appear to be either dependent or impartial. He unilaterally prepared a second report, as enclosed, without the Petitioner’s consent or knowledge (the Petitioner did not even know that Dr Sanger was given a copy of Dr Leung’s report and more importantly, no leave was given to release Dr Leung’s report to Dr Sanger) which he sent to the parties and Dr Leung on 26 May 2015, after the Petitioner stopped consulting with him. In the report, Dr Sanger criticized Dr Leung’s findings, attacked the Petitioner at every opportunity with inflammatory language; for example, on page 5, “G’s lies are omnipresent”; and generally protected and defended the Respondent against Dr Leung’s report. It is clear that his first report dated 4 March 2015 prepared for Dr Leung was more balanced and neutral (attached as Appendix 2 to Dr Leung’s report). It is essential for N’s therapist to have good and open communication channels with both parties in order for the therapy to be effective but in Dr Sanger’s case, this is no longer possible.” [7]

22.  The Judge also considered that, if (as contended by the respondent, but disputed by the petitioner) Dr Sanger was the petitioner’s treating psychiatrist, then the petitioner’s specific consent was needed before he wrote a further note for the court’s consideration.  She found that the petitioner has not given consent to Dr Sanger’s 1^st Letter or to the disclosure in it of the life story he provided to Dr Sanger.[8]

23.  As to Dr Sanger’s 2^nd Letter, the Judge said that it was again “partisan to the extreme”, and “not the sort of document that one might expect from a professional expert”.[9]

24.  The Judge noted that the respondent had not sought the leave of the court to produce Dr Sanger’s two Letters.  With regard to suggestion that leave should be given retrospectively for them to be produced, the Judge did not accept this would be appropriate, having regard to the nature of the documents, the manner in which they came to be on the court file, and, importantly, their obviously partisan nature.[10]

25.  The Judge was also critical of Dr Hung’s Report.  Referring to her direction made on 21 September 2015 (see paragraph 11 above), the Judge said:

“Notwithstanding this very clear direction the mother’s psychiatrist nevertheless saw fit to interview Dr Sanger. [He] also produced a 10 page summary at the end of the document in “My Views on the Petitioner’s Personality” even though [he] acknowledged that this was not within the scope of the court’s direction and [he] had not spoken to the father. I consider this to be highly professional.”

26.  The Judge concluded that Dr Hung’s Report should be removed from the court file as “[i]t went outside the confines of the express court direction and is singularly unhelpful as a result.”[11]

Test for granting leave to appeal

27.  The threshold for granting leave to appeal under section 63A of the District Court Ordinance, Cap. 336, is trite. Leave will only be granted if the applicant satisfies the court that the intended appeal has a reasonable prospect of success, or there is some other reason in the interest of justice that the appeal should be heard.  Reasonable prospect of success involves the notion that the prospect of succeeding must be more than fanciful, without having to be probable: SMSE v. KL [2009] 4 HKLRD 125.

28.  It is accepted that the decision of the Judge is in the nature of case management.  It is well established that an appellant who seeks to appeal against a case management decision faces a very high hurdle.  He has to show that the trial judge had gone clearly wrong and made orders which clearly involved an injustice or an inability for the trial court to carry out its task or had erred in principle or that the order was irrational: Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887 at §31.

Intended grounds of appeal

29.  The respondent is not appealing against the Judge’s refusal to have Dr Sanger as an expert in the case.  The present leave application is directed against: (i) the refusal to give leave for Dr Sanger’s two Letters to be filed and used at the hearing on children’s arrangement; and (ii) the removal of Dr Hung’s Report from the court file.  She seeks an order that Dr Sanger’s two Letters and Dr Hung’s Report be admitted as evidence for the proceedings on the children’s arrangement. 

30.  The respondent’s proposed grounds of appeal are:

(1)    The Judge erred in her approach to Dr Sanger’s two Letters.

(2)    The Judge erred in excluding Dr Sanger’s two Letters

(3)    The Judge erred in ordering the entirety of Dr Hung’s Report to be removed from the court file.               

Judicial management and control over expert evidence

31.  The intended appeal is in essence an appeal against the Judge’s exercise of discretion to manage the expert evidence to be adduced at the hearing on children’s arrangement.  It is important at the outset to reiterate some basic principles in this aspect. 

32.  First, expert evidence has always been subject to control by the court as is reflected in section 58(1) of the Evidence Ordinance, Cap. 8, which states that the admissibility of expert evidence is subject to rules of the court, and is further dependent on the evidence being within an area in which expert evidence is permissible, the witness properly qualified to give the expert evidence, and the evidence being relevant to the issues in dispute.  The requirement of “relevance” is approached broadly so that expert evidence to be given by a qualified expert can still be excluded if the court takes the view that calling it will not be helpful to the court in resolving any issue in the case justly: Barings Plc v Coopers & Lybrand (No. 2) [2001] Lloyds Rep. Bank 85 at §§23 and 45.  Part IV in Order 38 of the Rules of the High Court, Cap. 4A sets out the requirements for adducing expert evidence, which are directed at controlling the volume, quality and impartiality of expert evidence.       

33.  Second, modern judicial approach has moved away from leaving all matters to be dealt with by the trial judge at the trial to an emphasis on effective pre-trial case management.  In this post Civil Justice Reform era, the court is under a duty to further the underlying objective by actively managing cases.  It is also the duty of all parties to assist the court to achieve the underlying objectives.  Greater judicial management of expert evidence at an early stage of the proceedings is therefore to be expected.  The court is prepared at an interlocutory stage to exercise its discretion to exclude expert evidence if it takes the view it is not useful to the just resolution of the dispute.  The obvious advantage of such an approach in reducing proliferation of evidence, costs and the length of the trial needs no elaboration.   

34.  Third, in the context of proceedings relating to children’s arrangement, where the paramount consideration is the interest and welfare of the children, a sensitive and proportionate approach to the calling of expert evidence and the identification of the scope and limit of investigations and assessments is called for.  There is therefore an even greater need for the court to be proactive and to manage and exercise control over expert evidence to be adduced well before the trial.   

35.  Fourth, under Order 38 rule 35A of the Rules of the High Court, an expert witness has an overriding duty to assist the court on matters within his expertise.  This duty overrides any obligation to the person from whom the expert witness has received instructions or by whom he is paid.  Paragraphs 2 to 4 of the Code of Conduct for Expert Witnesses, Appendix D, Cap. 4A reinforce the point.  They provide that an expert witness has an overriding duty to help the Court impartially and independently on matters relevant to his area of expertise, that his paramount duty is to the court and not to the person from whom he has received instructions or by whom he is paid, and that he is not an advocate for a party.  An expert is required by Order 38 rule 37C to declare that he has read the Code, agrees to be bound by it and has complied with it, before his report can be admitted as evidence.  Expert report that fails to comply with the rules shall not be admitted as evidence.       

Grounds (1) and (2) - Dr Sanger’s two Letters

36.  With these principles in mind, we turn to look at the intended grounds of appeal.  The first two grounds are directed at the Judge’s decision not to allow Dr Sanger’s two Letters to be adduced as expert reports and be relied on at the trial relating to the children’s arrangement.  In our view, the intended appeal faces two insurmountable obstacles.

37.  Firstly, Dr Sanger’s two Letters were addressed to Dr Leung, who had not asked for or solicited them.  These correspondences were brought to the Judge’s attention by way of solicitors’ letter to the court.  Unlike Dr Sanger’s March 2015 Report which has been made an appendix to Dr Leung’s Report, Dr Sanger’s two Letters are not documents filed with the court.  The Judge has refused the application to appoint Dr Sanger as the respondent’s expert and to give expert evidence at the trial.  In the circumstances, there is no proper basis for them to become part of the evidence at the trial. 

38.  Secondly, in so far as it was suggested that Dr Sanger’s two Letters contain diagnosis of the petitioner’s mental state, are addenda to Dr Sanger’s March 2015 Report, and therefore expert reports in nature, they have failed to observe the requirements in Part IV of Order 38 – there is no statement of truth, no indication of Dr Sanger having been served with, read and agreed to abide by the Code of Conduct, and no declaration acknowledging the overriding duty to the court.  Dr Sanger’s two Letters, if they were in truth expert reports (which we do not accept they are), would be clearly inadmissible for non-compliance with the rules.     

39.  As to the arguments raised under Ground (1), the submission that because the petitioner had consented to Dr Leung obtaining a report from Dr Sanger, there was no limitation to his consent and it was not necessary to obtain his further consent to Dr Sanger’s two Letters amounts to challenging the Judge’s finding of fact. The Judge found that the petitioner had not consented to Dr Sanger writing the two letters for the court’s purposes, and that he provided his life history to Dr Sanger for the purposes of resolving the issue of access with N at a time when he and the respondent were receiving counseling from Dr Sanger in relation to access with N, and he had not given consent to the document being provided to the court.  All these findings of fact are open to the Judge to make on the materials before her.  

40.  In the light of the email exchanges between Dr Leung and the petitioner,[12] the Judge was entitled to conclude that the petitioner’s consent was confined to Dr Sanger producing a report in the context of the issue over access to children.  Plainly, it could not have been reasonably anticipated by the petitioner that Dr Sanger would on his own volition correspond with Dr Leung to volunteer information given to him by the petitioner in confidence.  The consent he initially gave could not be taken as a general consent extending beyond the report to Dr Leung, and to cover Dr Sanger’s two Letters. 

41.  We agree with the Judge that the petitioner’s initial consent to Dr Leung obtaining a report from Dr Sanger, and to confidential information being provided to Dr Leung in connection with the preparation of Dr Leung’s Report, could not be taken as consent to Dr Sanger writing the two letters with a view to having them considered by the court.  We further agree with the Judge that if, as the respondent contends, Dr Sanger and the petitioner stand in a psychiatrist–patient relationship, it is all the more important that Dr Sanger should have obtained the petitioner’s specific consent to his writing the two letters, and to his divulging the confidential information furnished by the petitioner.       

42.  The respondent also argues that Dr Sanger’s two Letters should not be excluded on the basis of medical confidentiality, which does not make the document privileged or exclude it from being relied on at the trial.  It is also said that in proceedings concerning arrangement of children, the court has an inquisitorial function, and Dr Sanger’s two Letters should be included for the court’s consideration.  In our view, the Judge did not err in considering what she had to balance, that is, on the one hand, the legitimate interest in keeping the confidential information suppressed, and, on the other hand, the legitimate interests of the party into whose possession it has come in seeking to make use of it.  For the reasons explained above, the Judge, in the balancing exercise, was entitled and correct to have regard to the nature of the documents, the way in which they came to her attention, and the content which she considered was obviously partisan. 

43.  The respondent also complains that the Judge had unfairly and inappropriately predetermined Dr Sanger’s expert evidence and mistaken his expression of professional opinion as being biased.  It was submitted that the Judge should have admitted Dr Sanger’s two Letters first and then decide at the substantive hearing the weight to be given after cross-examination and consideration of all the evidence.  We reject these arguments as being wholly incompatible with the well established principles and modern judicial approach set out above. 

44.  Under Ground (2), the respondent says that (a) Dr Sanger’s 1^st Letter was to explain why Dr Sanger disagreed with Dr Leung and her use of his 4 March 2015 report and was a professional discourse engendered by the initial order for Dr Leung’s Report, whereas Dr Sanger’s 2^nd Letter was to explain the reason for the first letter, hence the two letters form a necessary part of Dr Sanger’s views which Dr Leung had specifically sought and it was contrived and artificial to exclude them; (b) the court has a quasi-inquisitorial duty to obtain a full view on all matters that might impact on the paramount question of children’s interests, (c) an expert’s opinion should contain the whole of his opinion and not limited to a part or an extract of the overall opinion; (d) it was inconsistent to exclude part of the materials from Dr Sanger in light of the Judge’s acceptance that the respondent should be able to challenge Dr Leung’s Report and Dr Wong’s Report; and (e) it was illogical to compartmentalize and confine to one report the relevant issue of the petitioner’s possible personality disorder.

45.  It can be readily seen that the arguments (b), (c) and (e) are in substance repetitions of the arguments under Ground (1), which we have rejected. 

46.  In respect of arguments (a) and (d), no leave has been given for calling Dr Sanger as expert witness.  He only features in the proceedings before the Judge because Dr Leung sought information from him on the mental state of petitioner and the respondent, whether there was pervasive problem that could have a serious negative impact on children.  It is a matter for Dr Leung to form her professional view and conclusion on the subject matter of her report, having considered all the information and materials she has. Dr Sanger’s March 2015 Report is only one of the materials available to Dr Leung.  It must be up to Dr Leung to decide on what use to make of it, and what view to form on it.  Neither the court nor Dr Leung has sought Dr Sanger’s comment on Dr Leung’s Report or Dr Leung’s expert opinion.  Dr Sanger has no role in the proceedings.  Even if his two letters were legitimate professional discourse, they were written on his own volition and cannot be said to be a necessary part of the information sought by Dr Leung. There is simply no proper basis for receiving them as evidence in the case. The fact that the petitioner may challenge Dr Leung’s Report and Dr Wong’ Report does not provide a plank for the admission of Dr Sanger’s two Letters. There is no inconsistency in the Judge’s decision.

Ground (3) – Dr Hung’s Report

47.  We turn next to consider the intended appeal against the Judge’s decision to exclude Dr Hung’s Report, which is the subject matter of Ground (3).  The Judge came to this decision because Dr Hung’s Report had gone outside the confines of the express court direction and is consequently unhelpful.  To obtain leave to appeal, the respondent would have to show that the Judge was plainly wrong in her views and the exercise of her discretion.   

48.  In our view, the Judge was clearly right in her view that Dr Hung’s Report had gone outside the scope permitted by the 21 September 2015 order, which expressly states that each party is to produce a psychiatrist report as to the mental health of the party himself/ herself.  Dr Hung himself understands this to be the scope of his report when he said at the beginning of his ten-page long opinion on the petitioner’s personality and potential effect on children (at §12.1):

“I would like to raise my opinion regarding my views and concerns about the Petitioner’s personality although it is not within the scope of the directions by the Court and not having spoken to the Petitioner.”

49.  Contrary to Ms Yip’s submissions, we do not think Dr Hung misunderstood the court’s direction or the proper scope of the report that he should be producing under the court order. Notwithstanding his correct understanding, Dr Hung went on to relate at length, and to use his own word[13], his “suspicions” that the petitioner has personality problems.  Not only that, Dr Hung also gave a five-page critique of Dr Leung’s psychological assessment of the respondent.  We do not accept the submission that Dr Hung had prepared his report in accordance with the court order.  He clearly had not.  

50.  Both under Ground (3) and in counsel’s submission, it was argued that it was for the expert to identify, and not for the court to dictate, what materials to consider in coming to his honest expert opinion, including information from a previous treating psychiatrist; and that the Judge wrongfully conflated the question of allowing Dr Sanger to be an expert direct and that of Dr Sanger giving input to another expert in the latter’s preparation of his report.

51.  We reject these arguments.  While it is for the expert to prepare his report, he is bound by the court’s direction on the scope and limit of his investigations and assessments.  Although the 21 September 2015 order does not say in so many words that Dr Sanger’s input should not be sought, the intention and spirit of the order is clear to any reasonable reader.  It is that psychiatrist who has been involved with the parties, and in particular Dr Sanger, shall not be involved in the preparation of the report.  As the Judge pointed out, if there is any doubt about the appropriateness of seeking Dr Sanger’s input, clarifications and directions from the court should have been sought.       

52.  We would further observe that Dr Hung had not explained why, in light of the court direction, he felt appropriate and necessary to interview Dr Sanger and to seek his input not only on the respondent but also on the petitioner, a matter entirely outside the confines of his report. 

53.  As a fall-back position, the respondent argued that even if Dr Hung’s approach to the preparation of his report was inappropriate, the Judge should have ordered a redaction of Dr Hung’s Report instead of excluding it entirely.  Despite its apparent attraction, redacting the report does not address the core problem.  It is evident from reading Dr Hung’s Report that Dr Sanger’s input has a material impact on Dr Hung’s opinion and conclusion.  The objective of the 21 September 2015 order to have an assessment of the respondent’s mental health, without the involvement of Dr Sanger, is not met by redacting the report.  Similarly, the Judge’s reservation as to the usefulness of the report is not removed by the redaction of the unwarranted sections on the petitioner’s personality and impact on children.

54.  The intended appeal against the Judge’s decision to remove Dr Hung’s Report from the court file has no prospect of success.       

55.  The respondent further seeks to argue that there are “some other reasons” for the intended appeal to be heard in that important points of procedure and correct approach to expert evidence and control over expert witnesses are involved, and also because Hong Kong does not as yet have the equivalent of the Family Practice Rules (FPR) in England and Wales.  In our view, the principles and approach relating to judicial management and control of expert evidence are neither novel nor complex.  They are well-established and trite, notwithstanding we do not have the equivalent of FPR.

56.  We wish further to add that by virtue of paragraphs 8 and 9 of Practice Direction 15.12 on Matrimonial Proceedings and Family Proceedings, the Family Court does exercise the case management powers under Order 1B of the Rules of the High Court having regard to the underlying objectives of the Civil Justice Reform under Order 1A, and the control of expert evidence under Order 38 is one of the measures that the Family Court applies.         

57.  For the above reasons, none of the intended grounds of appeal enjoys reasonable prospect of success.  There is also no other reason in the interest of justice for these grounds to be heard by the Court of Appeal.  We had accordingly refused leave to appeal and dismissed the respondent’s application. 

Costs

58.  Ms Yip asked us to depart from the normal rule of costs follow event and to make no order as to the costs of this application.  While it is a leave application concerning children matters, we note that the respondent has decided to make a renewed application to the Court of Appeal after the Judge refused her application for leave to appeal with costs.  In the circumstances, we do not see any ground justifying a departure from the normal rule of costs follow event. We therefore order the respondent to pay the petitioner the costs of this application, to be taxed if not agreed.