C v. S

HCMP 929/2017

[2018] HKCFI 390

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 929 OF 2017

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D E C I S I O N
(On Separate Representation)

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Introduction

1.  This Court has earlier handed down Reasons for Decision on 12 February 2018 (“Reasons”) in relation to the parties’ respective transfer applications, and the detailed background of these wardship proceedings has been set out therein and in the numerous published judgments of the Family Court and the Court of Appeal in relation to the ward N.  I shall adopt the same abbreviations as in the Reasons unless otherwise indicated herein.

2.  The plaintiff and the defendant are respectively the Father and the Mother of N who is now 9 years old.

3.  As seen in the Reasons, this Court has decided against transferring the Family Proceedings up to this Court, and also against transferring the Father’s application for custody, care and control (“Custody Application”) down to the Family Court. 

4.  At present, the outstanding applications in these wardship proceedings are the Father’s Custody Application with the related issue over access, and also the Mother’s application for N to be de-warded.

5.  The Mother had issued a summons, in person, on 3 October 2017 for (i) variation of the 19.05.17 Order in relation to N’s access; (ii) N to be interviewed by the judge; and (iii) N to be separately represented by the Official Solicitor (“OS”).  The application was opposed by the Father.  At a hearing on 18 December 2017, this Court gave directions for the lodging of written submissions and that the matter to be dealt with on paper.  Due to matters raised by the Father, this Court also called for an urgent social investigation report to seek N’s views on separate representation.

6.  The Mother’s submissions were lodged by Counsel Mr Kevin Li on her behalf, while the Father’s were lodged by Mr Russell Coleman SC and Ms Athena Wong.  Both parties’ written submissions appeared to focus only on whether N should be separately represented by the OS.

Brief background

7.  The Father and the Mother were not married to each other but were in a cohabitation relationship. In about May 2009, the Mother left home with N, who was then only about 6 months old.  Since then, N has been living with the Mother. 

8.  The Father commenced the Family Proceedings in March 2010, and the Custody Order was made in October 2012 giving the Mother sole custody, care and control (“Custody Order”).  Since then and until the 30.09.16 Order, there had been issues over the Father’s access.  As seen in the Reasons, after access on 21 January 2017, the Father was not able to exercise any access to N until 7 October 2017.

9.  In the meantime, the 08.09.17 SWR was submitted in which it was stated by the social work officer Mrs Lam Yeung Kit-ching (“Mrs Lam”) that Ms Wong of the Hong Kong Family Welfare Society (who had been providing co-parenting service to the family) reported that when N was interviewed on 29 August 2017 she was emotionally settled and addressed the Father as “daddy” spontaneously but N had however expressed resistance towards the Father due to his poor temper and tense relationship with the Mother.  Thereafter this Court directed that the access took place at the Contact Centre in Wong Tai Sin but access was still not successful and the Father then issued an application for contempt proceedings against the Mother. 

10.  Eventually, access took place on 7 October 2017 and according to the Father, N still displayed negative emotions towards him. It is clear that although access did take place thereafter, such access was not satisfactory and it would appear that each session lasted for only about two to four hours at the Contact Centre although the 19.05.17 Order allowed the Father to have access every Saturday from 10 am to 9 pm. 

11.  According to the Father, the Mother had on 4 occasions made allegations about child abuse against the Father, but such allegations were later found to be not substantiated.  However, the Mother maintained that N had complained to her about the Father’s poor temper and physical behaviour.

12.  Mr Li had drawn this Court’s attention to some observations made by the then social work officer Mr Cheng Cho Hong in an earlier social welfare report dated 24 February 2016.  Mr Li said the purpose of referring to the report was not intended to attribute any fault on part of the Father but to show to the Court the psychological side of N and her disapproving behaviour towards the Father. 

13.  As for the incident on 21 January 2017, what exactly happened was not quite clear except it was alleged that N was scolded by the Father.

14.  Anyway, so far, there has been no finding of any child abuse by the Family Court or by any social worker. 

15.  The Father had complained in his 1^st affirmation filed in support of the originating summons herein that there had been parental alienation on the part of the Mother, whereas the Mother’s case was that it was N who was unwilling to see the Father.

PDSL 6: Guidance on Separate Representation for Children in Matrimonial and Family Proceedings

16.  PDSL 6 was introduced on 3 October 2012.  In paragraph 15 thereof, it has set out, solely by way of guidance, a non- exhaustive list of 17 circumstances where the judge could consider making an order for a child to be separately represented, and I will set these out hereunder:

(i) Where there is an intractable dispute over custody or access including where all access has ceased or where there is irrational but implacable hostility to access or where the child may be suffering harm associated with the access dispute or where it is intended that there be termination of access;

(ii) Where a parent is under a disability and represented through a guardian ad litem or next friend and custody/access is in dispute;

(iii) Difficult cases which involve a foreign element, immigration problems or permanent removal from the jurisdiction such that it would for all practical purposes exclude the other party from the possibility of access to the child;

(iv) Where the child has a standpoint or interests which are inconsistent with or incapable of being represented by any of the adult parties or cannot be adequately metby a report to the court;

(v) Where an older child is opposing a proposed course of action;

(vi) Where the child is apparently alienated from one or both parents;

(vii) Where there are real issues of cultural or religious differences affecting the child;

(viii) Where there are complex medical or mental health issues to be determined or there are other unusually complex issues that necessitate separate representation of the child;

(ix) Where there are serious allegations of physical, sexual or other abuse in relation to the child or there are allegations of domestic violence not capable of being resolved with the help of a social welfare officer;

(x) Where the proceedings concern more than one child and the welfare of the children is in conflict or one child is in a particularly disadvantaged position;

(xi) Where there is a contested issue about blood testing;

(xii) Where the conduct of either or both of the parents or some other person having significant contact with the child is alleged to be anti-social to the extent that it seriously impinges on the child’s welfare;

(xiii) Where on the material filed by the parents, neither parent seems a suitable custodian;

(xiv) Where a child of mature years is expressing strong views and if given effect would involve changing a long standing custodial arrangement or a complete denial of access to one parent;

(xv) Where it is proposed to separate siblings;

(xvi) In relation to applications in the court’s welfare jurisdiction relating in particular to the medical treatment of children where the child’s interests are not adequately represented by one of the parties;

(xvii) Where none of the parties are legally represented.

Mother’s grounds for application

17.  The Mother’s grounds for her application appeared to be based on the following:

(i) N is 9 years old and she is perfectly capable of expressing her views and affections.

(ii) Whatever explanations or matters of concern raised by the Mother will not be believed and accepted by the Father.

(iii) To find out the “root cause” of N’s negative feelings towards the Father.

18.  In other words, the Mother’s main reason for her application was to enable N’s views and feelings to be fully investigated and reflected and the issue of allegation of “alienation” fully investigated.  This appears to be a misapprehension on her part since it is not the role of the OS, or guardian ad litem of a child to investigate a child’s views and feelings.  This should be done by a clinical psychiatrist or psychologist.  The role of the OS or a guardian ad litem of a child is to represent the child’s interests, which may not always accord with the child’s own views, (emphasis added) and that the primary duty of a guardian ad litem is to represent the child’s interests which are likely to be conveyed to the court in a report which should have regard to the welfare checklist[1].

19.  The role of the OS as a child’s separate representative is twofold, as an officer of the court the OS investigates how the child’s interests are best served while simultaneously representing the child’s views as his solicitor in the proceedings[2].

20.  It was held in Mabon v Mabon and others [2005] Fam 366 that, amongst other things, the guardian’s first priority was to advocate the welfare of the child and his second priority was to put before the court the child’s feelings and wishes and sometimes those priorities could conflict[3].  Thorpe LJ had explained that :

“In testing the sufficiency of a child’s understanding, I would not say that welfare has no place. If direct participation would pose an obvious risk of harm to the child arising out of the nature of the continuing proceedings and, if the child is incapable of comprehending that risk then the judge is entitled to find that sufficient understanding has not been demonstrated. But judges have to be equally alive to the risk of emotional harm that might arise from denying the child knowledge of and participation in the continuing proceedings[4].”

21.  It is clear from the above that the judge will have to balance the risk of harm to the child in the case of direct participation, if any, and the risk if the child is denied the knowledge of and participation, if any.

Father’s grounds for opposition

22.  The Father’s grounds for opposition were briefly the following:

(i) Direct participation would pose an obvious risk of harm to N;

(ii) In light of N’s grave fear of “displeasing her mother”, dragging her into this litigation would intensify her fear and distress and exacerbate any couching and interrogation, as N is now living with the Mother;

(iii) There is no evidence that N has demonstrated the necessary understanding and maturity at this stage to be involved in the proceedings; in contrast, the anxiety and distress N exhibited and her grave fear of displeasing and being punished by the Mother suggests the reverse;

(iv) There has been no recommendation in the 14 social welfare reports or any of the professionals involved that N should be separately represented by the OS, and instead the recommendation seems to be for N to stay out of the parental conflicts and not to be subjected to further questioning or interviews by strangers;

(v) There is no such need to drag N into the course of this litigation as other alternatives are available and indeed in place. N’s views and wishes have been reflected in the various reports.

23.  I must say I find that the Father’s present stance somewhat contradictory since it was he who in the Originating Summons had originally sought an order for N to be separately represented on the basis that there was evidence of parental alienating behaviour in the Mother’s home and that having N separately represented would help to safeguard the welfare of N in view of the history of unfounded allegations made by the Mother and the “deeply conflicted relationship between the parties”[5]. The Father then suddenly withdrew his application for N to be separately represented at the hearing on 10 August 2017, and I understood his reason was he did not wish to subject N to being interviewed by another stranger.  However, at the time when he made that application, all the grounds now put forward by him to oppose the Mother’s application were there and had presumably been considered by him.  In fact, since then, N has been subjected to seeing new strangers, such as the psychiatrist Dr Joanna Lam.  Anyway, for reasons best known to him, the Father clearly changed his mind.

The Official Solicitor

24.  The Mother has contacted the OS directly to enquire whether there is any objection on his part to represent N.  Ms Juliana Chan of the OS’s Office replied on 17 January 2018 and set out reasons why she did not agree with the Mother’s basis of her application but if the Court were to consider it appropriate for N to be separately represented, the OS would have no objection. 

The urgent social welfare report

25.  As mentioned, this Court had called for an urgent social welfare report to seek N’s views on separate representation.  Mrs Lam submitted her report on 8 February 2018 (“08.02.18 SWR”).  In the report, Mrs Lam reported that N had expressed her wish to be separately represented by the OS so that she could directly tell the OS about her wish, that she wanted to have the access to be suspended temporarily because she felt stressful to see the Father.

26.  Mrs Lam pointed out that N’s views had been well reflected in the many reports submitted to the Court over the past years, and that N had admitted that she would feel anxious if she had to express her views in front of the OS or the Judge.  Mrs Lam opined that appointing the OS would inevitably cause further stress to N so long as N was caught in the parental conflicts, and that N had showed difficulty to understand the appointment of the OS and her participation in the Court proceedings given that she was only 9 years old.  Further, Mrs Lam considered now not an appropriate time to appoint the OS for N particularly when she had manifested psychiatric symptoms recently and her mental condition was yet to be assessed.

27.  Mrs Lam said N should receive psychiatric treatment as appropriate while the parents should be encouraged to settle their disputes as soon as possible in order to reduce further psychological harm to N.

28.  To summarise, there are two reasons for Mrs Lam to opine that the appointment of the OS is not recommended at this stage, namely (i) N’s views had been well reflected in various reports and that N showed difficulty in understanding the appointment of the OS and that she felt anxious if she had to express her views in front of the OS or the Judge; and (ii) N has manifested psychiatric symptoms recently, and appointing the OS would cause further stress to N.

Discussion

29.  As provided under s 3(1)(a)(i)(A) of GMO, the court shall give due consideration to the views of a 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.

30.  Thus, whether a minor is of sufficient age and understanding for his/her views to be given consideration, and/or the weight to be given to such views will be a matter for the Judge to decide in the circumstances of each case. This provision is irrespective of whether the minor is to be separately represented or not.

31.  One of the Father’s grounds of opposition was that there was no evidence that N had demonstrated the necessary understanding and maturity at this stage to be involved in the proceedings.

32.  Mr Colemen and Ms Wong referred the Court to In re S (A Minor) (Independent Representation) [1993] Fam 263.  It was not clear how that case would assist the Father.  The child S was about 12 at the time of the hearing of the appeal, and he applied for leave to participate in the proceedings with his own legal representatives and for the removal of his guardian ad litem.  The judge refused leave for S to do so and his appeal was dismissed by the Court of Appeal. 

33.  Ms Wong had quoted a passage of Sir Thomas Bingham MR when giving judgment in the Court of Appeal, namely where any sound judgment on the issues in the proceedings called for insight and imagination which only maturity and experience could bring, the court and the solicitor would be slow to conclude that the child’s understanding was sufficient[6].  The comments made by the Master of the Rolls were made in relation to Rule 9.2A of the Family Proceedings Rules 1991[7] and had to be viewed in the context of that case, in particular the tests in paragraphs (1)(b)(i) and (6) of Rule 9.2A.

34.  Briefly, those provisions allow a minor to begin or prosecute proceedings without a next friend or to defend proceedings without a guardian ad litem, having never had one. The Master of the Rolls was considering whether S had sufficient understanding to participate as a party in the proceedings concerned or proposed without a next friend or guardian ad litem.

35.  There is at present no equivalent provision as Rule 9.2A in Hong Kong.  Further, the circumstances of the present case are completely different.  There was no suggestion from the Mother that N should participate in these proceedings without any guardian ad litem. 

36.  That N may not have the maturity and experience in participating in these proceedings directly without the OS is one matter but whether she is of sufficient age and understanding for her views to be taken into account by this Court is a different matter.

37.  Mr Coleman and Ms Wong had also referred to this Court’s judgment in R v N (Separate Representation of Children) [2010] HKFLR, 285 where this Court concluded that it was not in the interest of two children, aged 13½ and 7¾, for them to be separately represented.  This Court had considered those circumstances set out in the direction of the then President of the Family Division in England in relation to separate representation of children in family proceedings, including that the children in that case had not expressed a wish to be separately represented and there was no more intractable conflict in that case than most of the other contested custody or access cases, and came to the conclusion it was not in the best interest of the children to be separately represented by the OS at that late stage of the proceedings.

38.  Indeed, it was after the above case that PDSL 6 was brought in to set out those relevant circumstances in which separate representation could be considered, and to provide guidance to practitioners. 

39.  Mr Coleman and Ms Wong had also referred to another of this Court’s judgment in an international child abduction case YYW HWW [2017] HKCU 1527 where the children were said to object to the return.  Such cases by their nature have to be dealt with expeditiously and in that case, the parties had not explored other alternatives of ascertaining the children’s views. The parties then agreed for a social welfare officer to seek the children’s views urgently first.  Thereafter, there was no further application/ suggestion for the children to be separately represented.

40.  Again, I am not sure how the above case would assist the Father, since in the present case, N had already been interviewed many times by social workers and/or psychologists.  In any event, the circumstances of each case are different and further the views of a guardian ad litem may not accord with that of N.

41.  The Father said he did not wish N to be drawn into the litigation.  The Mother alleged that during the access on 4 November and 11 November 2017, the Father had told N that the Mother had stolen things from him, and that he had told N that she was greedy by wanting to live in One Silversea.  This was denied by the Father, but if true, then it would be the Father who was himself dragging N directly into the parties’ dispute.  However, if untrue, then either the Mother or N has been making things up.  This would equally be of concern to this Court.

42.  N has been seen by the clinical psychologist at the Social Welfare Department Mr Alex Lam since December 2011, and recently on 12 December 2017, Mr Lam has written a letter of referral to the Consultant of Service of the Yaumatei Child and Adolescent Mental Health Service (“Letter of Referral”).  In this letter, Mr Lam reported that while N had continually expressed her reluctance to meet her father on weekend for months, she continued to manifest stable behaviour at school.  However, the Mother telephoned Mr Lam on 11 December 2017 and reported a number of repetitive and compulsive symptoms, including that N had “visual images of stabbing her mother to death and ideation of killing her maternal grandparents, God and Buddha”.  It was reported by the Mother that N was fearful towards these symptoms and blamed herself for not being able to suppress them.  As a result, Mr Lam referred N to receive psychiatric assessment and professional intervention at the Government service in Yaumatei.

43.  This matter was raised urgently before this Court by the Father’s Mr Coleman at the hearing on 18 December 2017, but in light of the possible waiting time at the Government service, this Court directed that N to see a private child psychiatrist and the Father had agreed to bear the costs in the interim.  This Court further directed that, if the parties could not agree on the treating psychiatrist, each party was to submit two names for the Court to decide.  However, even after the Court had made a decision for Dr Joanna Lam to be the treating psychiatrist, the Father’s solicitors wrote and asked this Court to reconsider and this court declined.

44.  Thereafter, there were further communications over the joint letter to be sent to Dr Lam.  As a result of all this, I understand that N was not taken to see Dr Lam until sometime after 25 January 2018.

45.  It is of grave concern to this Court that there is such an intractable dispute and distrust between the parties over N that they could not even agree on such a matter which resulted in delay in N receiving treatment.  In fact, this matter is not at an end, as at the hearing, the Father has not issued another summons for N to see a Government psychiatrist to whom the Letter of Referral was addressed originally.

46.  So far, there have already been 14 social welfare reports and various social workers and psychologists have already involved.  Even though the Father said that N should not be subjected to being questioned or interviewed by yet another stranger, it seems he now wishes N to see yet another new psychiatrist.  

47.  In my view, the long history of non compromising attitude of both parties since N was some 6 months old, and the fact that this litigation has been going on since March 2010, almost 8 years ago, is an indication of an intractable dispute between the parties. It is not clear what attempts the parties have made for mediation and I would expect the parties’ legal representatives to report to this Court at the next hearing.  

48.  As I have said, it was the Father’s case in his 1^st affirmation filed in these proceedings that there was parental alienation on the part of the Mother, namely alienating N from him.  This would be one of the circumstances in PDSL 6 for this Court to consider whether to order N to be separately represented.  However, since the Father has now changed his stance in relation to the separate representation, it is not clear whether this is still an allegation he is making.

49.  It appears to this Court from the present evidence that N has already been drawn into her parents’ disputes and very much affected by and indeed suffering harm associated with the disputes between her parents, if those symptoms as reported by the Mother are true.  It appears that N has been diagnosed as suffering from obsessive compulsive disorder.  According to Mrs Lam, N has expressed the view that she wanted to have the access to be suspended temporarily because she felt stressful to see the Father.  

50.  In my view, there appears to be evidence of intractable dispute of the kind set out in paragraph 15(i) of PDSL6.

51.  Due to the urgency of the report, it is understandable that Mrs Lam may not have given sufficient consideration to whether any of the circumstances in paragraph 15 of PDSL 6 exist in the present case before coming to her recommendation.  N’s mental state is of course our prime concern presently.  She has however also expressed wish for access to be suspended and a wish to be separately represented, albeit she may not fully understand what this means.  However, there have been cases where children of much younger age have been separately represented by the OS when there has been intractable dispute between their parents as a result of which they may suffer harm or where other circumstances set out in paragraph 15 of PDSL 6 exist.

52.  As set out in paragraph 14 of PDSL 6, the question of separate representation is a balance between the risk of potential harm to the child if he has no voice in the proceedings, the risk of adverse effects on a child who is reluctant to be drawn into a parental dispute and the cost and time burden to the courts which increased representation will bring.  Having weighed up the balance and having considered the long history of intractable dispute between the parties, notwithstanding Mrs Lam’s recommendation, I have come to the view that it is in N’s best interests to be separately represented by the OS.  In fact, in my view, the OS may also be able to assist N in receiving mental health/psychiatric treatment.

Conclusion

53.  In light of the above, I will order N to be separately represented by the OS in these proceedings.

54.  Since neither of the parties can be said to have succeeded in his/her arguments and that this Court is making the order on grounds other than those submitted on behalf of the Mother, I make no order as to costs as to this application, save that the Mother’s own costs to be taxed in accordance with the legal aid regulations.