"W" v. "I"

CACV 219/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 219 OF 1999

(ON APPEAL FROM FCMC 8282/1996)

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J U D G M E N T

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Hon Godfrey VP:

Introduction

1. This is an appeal by a father from an order of H.H. Judge Gill, made in chambers on 2 November 1998, concerning access by the father to the child of his marriage with the mother.

The issue

2. The issue on the appeal is whether this court, as a Court of Appeal, should interfere with the exercise by the judge of his discretion to refuse access by the father to the child and, instead, to make an order which precludes the father from making any application to vary the terms of the order within three years of the date thereof without leave of the court (as I understand it, the application for leave would be an application made ex parte).

The background

3. The judge dealt with the matter very fully in his judgment, from which I take what follows.

4. The father and the mother were married in Hong Kong on 29 April 1990. The only child of their marriage was born on 17 December 1990. The father and the mother separated in June 1991 and in September 1996 the mother instituted divorce proceedings. On 9 January 1997 she was granted a decree nisi. On the same day, an interim order for custody was made in favour of the mother with no order for access. The father subsequently asked the court to make an order in his favour originally for custody but eventually only for reasonable access.

The approach of the court

5. The court is in favour of allowing access to a child by whichever is the non-custodial parent. But it ought always to be borne in mind that the so-called "right" of access is not a right of the non-custodial parent. It is a right of the child. Unfortunately it may, sometimes, be contrary to the best interests of the child for the child to have access from the non-custodial parent; for example, if the access will or will be likely to be so unsettling that the child will be adversely affected by it. That may be the case through no fault on the part of the non-custodial parent, but simply because the bitterness and rancour which have divided the father and the mother are such that the child has turned against the non-custodial parent. In other cases, the deliberate behaviour of the custodial parent may have brought about that result.

6. The law is a blunt instrument by which to regulate inter-personal relationships. It is incapable of effectively managing, except in a very gross sense, so delicate and complex a relationship as that between parent and child. All the court can do is to make such orders as the court concludes will be in the best interests of the child. That will usually mean selecting, not the ideal course, but the least detrimental of two alternatives.

The present case

7. The judge pointed out that, in this case, no fewer than seven social welfare reports had been prepared for the assistance of the court, including reports by a child psychologist. All steps considered necessary or desirable to protect the child's interests have been taken.

8. As long ago as 1994, a social welfare inquiry was ordered, and a defined access order was made, but this proved to be unsuccessful. The mother's feelings do not appear to have "softened" (as the judge put it) over the years.

9. By an order made in 1995, access was withheld from the father. Despite several subsequent social welfare reports, that order has remained in force.

10. The child, however, with whose interest the court is particularly concerned, has not only not "softened" his own attitude to the father; his attitude has become distinctly worse. Despite the efforts of social welfare officers and child psychologists, the parties have been unable to mend fences and to take such steps as might enable the child to enjoy the benefit of such access from the father as would, normally, be desirable. The position of the father and the mother, said the judge, had become "more entrenched". If the child was required to engage in a relationship with his father, however minimal and controlled, it could have long-term psychological adverse effects on him.

11. The most recent recommendation was that there be no access and furthermore, that such access should be withheld for not less than three years. The judge found as follows :-

"There is no doubt that throughout his life the child has been well looked after, cared for and brought up by the wife. There is a strong bond of love and intimacy between them. He is doing well in school. There is no question but that the wife's custody of him must continue.

On the issue of access there is equally no question. In an ideal situation it is materially in a child's best interests, where his parents have separated or divorced, that the non-custodial parent should have regular access in order to maintain a relationship with the child and thereby contribute to the child's upbringing and development. But this is not an ideal situation. It does not even approach it. Far from benefiting the child, an order for access would put his mental health at substantial risk and cannot be contemplated.

Furthermore, I agree that at least three years should pass before any access at all is reconsidered, and I propose to frame the order accordingly."

Should this court interfere?

12. As I have indicated already, the question for us is whether there is anything here which would justify this court in setting aside the judge's order. We can do so only if he exercised his discretion on a wrong principle, or by failing to take into account some matter which he was bound to take into account, or by taking into account some matter which he ought not to have taken into account, or had otherwise misapprehended the case.

Conclusion

13. For my part, I find it quite impossible to come to the conclusion that there is anything here which would justify our interfering with the exercise by the judge of his discretion. It is a very sad matter, and I feel considerable sympathy with father, mother and most of all, the child. But since the court cannot, in reality, do anything likely significantly to improve the parties' relationships with one another, there is, I fear, nothing it can do at all.

14. The judge's order was, in my judgment, an entirely proper exercise of his discretion. I have had some hesitation about the three-year limit, during which the father can make no further application for access without the leave of the court. But the judge was clearly entitled to his opinion that, after the child had grown a little older (but not sooner), it might be appropriate for the court to re-visit the matter. I would hope that this will be so. I also hope the father will accept that there is really nothing that can usefully be done now, while the child's state of mind is one so hostile to the father. Unpalatable though it is, I agree with the judge that the best course is to leave the matter on one side for three years, in the hope that, at the end of that time, a re-consideration of the whole matter will provide a better result for all parties, especially the child.

Result

15. For the reasons I have endeavoured to state, I would dismiss this appeal. There is nothing I would wish to add.

Hon Rogers JA :

16. I agree that this appeal should be dismissed.

17. I consider that there are no grounds for disturbing the judgment or order of the judge below which was careful and concise. It will be noted that the judge below has dealt with the case over a period extending for more than four years prior to the order which he made. He was clearly very familiar with the history and the various factors involved.

18. In those circumstances, I agree this appeal must be dismissed.

Hon Ribeiro JA :

19. I also agree and have nothing to add.

Hon Godfrey VP :

20. We will dismiss the appeal with costs; and, in the mother's case, order a separate taxation of her costs for the purposes of the Legal Aid Regulations.