G, by his next friend CHAN LUI LUNA v. BVR AND OTHERS

CACV 165/2018

[2020] HKCA 307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 165 OF 2018

(ON APPEAL FROM HCMP NO 1803 OF 2014)

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BETWEEN

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JUDGMENT

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Hon Kwan VP:

1.  I agree with the judgment of Yuen JA.

Hon Yuen JA:

2.  This is an appeal by the mother (“the Mother”) of a boy (“G”), now aged 11 years, against the Judgment of Hon B Chu (“the judge”) given on 23 April 2018 (“the Judgment”) dismissing her application by summons filed on 29 April 2016 for an order that G ceases to be a ward of court. 

3.  G was first made a ward of court on 2 September 2014, and by a consent order made on 5 May 2015 (“the Consent order”), he continued to remain a ward. 

4.1.  The respondents to the appeal are:

(1) the plaintiff in the proceedings, an officer of PathFinders (“PF”), a charitable and non-government organization which helps migrant mothers in Hong Kong with children, who had made the application for wardship in July 2014 as G’s next friend;

(2) the 2^nd defendant the Director of Social Welfare (“DSW”); and

(3) the 3^rd defendant International Social Service (“ISS”), an international non-government organization providing services to individuals and families with (amongst other things) social problems arising from geographical separation, which had been appointed by the Social Welfare Department to provide assistance-in-kind to asylum seekers and torture claimants. 

4.2.   According to the Mother, the identity of G’s father is unknown1. 

Background

- Immigration status

5.  The Mother originally came to Hong Kong from the Philippines in 2001 to work as a domestic helper, but overstayed after her employment terminated in 2004.  Since then she has not been employed in Hong Kong, but has not returned to the Philippines.  In February 2009, she was convicted of overstaying. 

6.  Two months later, in April 2009 G was born.  He has remained in Hong Kong since then.            

7.1.  The Mother made a claim to be allowed to stay in Hong Kong as a torture claimant, but it was rejected in June 2012.  She subsequently applied on behalf of herself and G for an order for non-refoulement, but their application was rejected in June 2015.

7.2.  Since April 2009, the Mother and G have been on recognizance.  As a result of the rejection of their non-refoulement claim, the immigration authority can remove them from Hong Kong, although it was common ground at the hearing before the judge2 that the Director of Immigration has a residual discretion under statute to rescind a removal order and to grant permission for a person to remain in Hong Kong3. 

7.3.  As the judge correctly stated, the legal position now is that the court cannot interfere if the immigration authority removes G from Hong Kong, but unless and until G is removed, the court is not absolved from its duty to deal with matters affecting his wardship4.

- G’s situation

8.1.  Returning to the factual background, as a result of concerns that PF had about G’s well-being the year after he was born, PF made an application in July 2014 as G’s next friend for him to be made a ward of court.  

8.2.  The application was supported by evidence that included allegations about the Mother’s lack of parenting skills, but as a result of the Consent order, it was not necessary for the allegations to be determined by the court. 

9.  The uncontroversial facts concerning G may be summarized as follows. 

9.1.  From the time of his birth in 2009 until July 2013, he was in the Mother’s custody.

9.2.  In July 2013, PF arranged for him to be placed with temporary guardians for 12 days. The circumstances under which that placement took place are disputed, but as explained above, the disputed facts did not need to be determined by the court by reason of the Consent order.   

9.3.  In June 2014, the Mother was remanded in prison, and G (then aged 5) was sent to Po Leung Kuk.  There, in August 2014, ISS connected him with a couple Mr & Mrs K.  Mr K is Hong Kong Chinese and Mrs K is from the Philippines. They have children of their own.  They visited G at the Po Leung Kuk and he got on well with them. 

9.4.  About 2 months later in October 2014, G started staying with the K family at weekends. 

9.5.  In February 2015, G started living full-time with Mr & Mrs K (“the foster parents”) and their children at home (“the local home”).  Since then, he has been attending a government primary school near the local home, has taken the K family’s Chinese surname, and his preferred language is Chinese.  Mr & Mrs K have been supporting him financially.  Mrs K gave evidence before the judge that she and her husband would continue to care for G, whether by adoption or under the existing local home arrangement5. The judge was clearly impressed with the home that the family has provided G.

“Mrs K has impressed this Court as being frank and honest and from all accounts, she and her family have provided a warm and comfortable home for G and they have treated G as part of their family for the past 3 to 4 years and that is the first time in G’s life that he has been in a settled home and family for a continuous period of time”.6

10.  Meanwhile, the Mother was released from prison in August 2014 and has been living in different places as she was not satisfied with accommodation provided by ISS.   

11.  By the Consent order in May 2015, the Mother consented to G remaining a ward of court.  She was legally represented at the time.  The terms of the order included the following:

- G would reside at the local home,

- the Mother would reside at accommodation approved by ISS,

- the Mother would have access to G supervised7 by ISS at her accommodation8 3 times a week,

- therapeutic programs9 would be arranged for G by ISS¹⁰,

- the Mother would attend parental counseling sessions provided by ISS,

- monthly reports be provided regarding G’s well-being, and the abovementioned access, counseling etc. 

Events after the consent order

12.  Unfortunately the Mother failed to attend the majority of parental counseling sessions¹¹ and stopped attending them altogether the next year¹² (2016).  This was despite the fact that in April that year, she had applied for an order that G ceases to be a ward of court. 

13.1.  Pending the hearing of her application, the Mother also failed to attend family art therapy sessions with G¹³. Her repeated absences caused G to be upset such that the therapist recommended that the family art therapy sessions be discontinued, with G to continue to attend individual art therapy sessions.    

13.2.  In the course of the art therapy sessions, G complained to the therapist that he did not like it when, during the Mother’s unsupervised access, she took him to a smoky flat where she played cards for money¹⁴. 

13.3.  At one stage the Mother asked for access to G to be put on hold, the reason she gave being that she was dissatisfied with the food and travel assistance provided to her by ISS¹⁵.

13.4.  She also cancelled access to G at one point, believing that in that way, ISS would not be able to report to the court about her¹⁶.

Mother’s plans for G

14.  As for the Mother’s application that G ceases to be a ward, she first filed an affidavit¹⁷ on 29 April 2016, in which she set out short-term and long-term arrangements for G. 

14.1.  The short-term arrangement involved ISS providing her with accommodation near G’s school¹⁸, and unsupervised access to him on weekdays and one day at the weekend. 

14.2.  The long-term arrangement was as follows:

“I will take My Son back to the Philippines for good after this case is concluded. I will find a village to settle down and do farming work. Villagers are more kind-hearted. I will take care of him by myself. I believe that My Son may not be able to receive education in Philippines in the first one to two years. However, I will try to send him to school after I have settled down in Philippines. We can work it out so long as we can stay together. I believe that [ISS] can provide assistance to My Son in Philippines because they have branch there. Therefore, I believe that if I really have difficulty in Philippines, I can ask for help”. (Emphasis added).

14.3.  Subsequently however, in a letter dated 3 November 2017, her solicitors set out a different arrangement, as follows:

“We ... write to provide you with a framework of our client’s plan when she goes back to the Philippines with [G]. Our client would like to settle in Manila and find jobs in laundry or restaurant. She would also enroll [G] into nearby school as soon as she can. She will take care of [G]. As she is not yet back [in] Manila, it is hard for her to put forwards a more concrete plan”. (Emphasis added).

15.1.  This led to correspondence in which the Mother was asked to address the following matters (“4 Matters”):

(i) Gainful employment/work prospects for the Mother;

(ii) Accommodation for the Mother and G;

(iii) Education for G;

(iv) Community support for G, such as psychological support and social integration.

15.2.  Pausing here, it would be noted in relation to (iii) that G has throughout been studying at a local primary school and his preferred language is Chinese; and in relation to (iv), that he has been receiving regular psychological therapy, he has lived in Hong Kong since birth, and he has been raised by a local family since he was 5 years old.

15.3.  Thereafter the Mother filed another affidavit on 11 December 2017.  After first saying the following:

“Since I am not in the Philippines I can only plan as best as I can. Any plans I may have will necessarily be subjected to the circumstances as and when [G] and I are physically in the Philippines”¹⁹,

she went on to say, in summary:

(1) she intends to borrow money from the church or friends in Hong Kong for her and G to live on for the first few months in the Philippines;

(2) she has contacted a friend F who has promised to pick them up from the airport and put them up in his unit in Manila until she finds accommodation and a job;

(3) if F fails to keep his promise, she would use the money she hopes to borrow in Hong Kong to “have a quick start up”, alleging that it is “not difficult” to find a flat/room and that she can visit an agency to look for employment;

(4) she intends to enrol G in a public school where education is free (although there will be other expenses), and she hopes to find a job in a laundry or restaurant that would enable her to drop him off and pick him up;

(5) in the event that her plan to settle in Manila does not “pan out”, she would move back to her hometown to work on rice plantations or fish farms;

(6) “I am aware and expect that there will be a period of adjustment for [G] in the Philippines. [G] will also have to learn our language and I am certain that once he is in the Philippines he will be able to pick up the local language very quickly. ...”²⁰;

(7) “[G] may not like the change because he will lose the comfortable life with the Local Home.  However, in the long run, he will learn it is more important to have strong connection with his family”²¹.

15.4.  The Mother made a further affidavit on 4 January 2018.  She indicated that she would borrow $10,000 from friends in Hong Kong, but could not say “what funds are or will be available as I have no idea when [G] and I will be repatriated to the Philippines”.  

15.5.  Despite queries made by the other parties about F, she did not provide any evidence from him as to the assistance that she hoped to get from him.  She declined to provide his contact details on grounds of privacy.

15.6.  As for G’s education, she considered it premature to say which school she intended to enrol G in, as she would need to settle on where they would live before finding a school in the area.   

15.7.  Essentially the emphasis of the Mother’s case was as follows:

“A child should not be separated from his natural mother for any period, let alone an extended period, simply because the parenting skill of the child’s natural mother does not meet what is deemed to be the right standard. Even if my parenting skill was lacking or bad, that is not a ground to deprive me of my only child and vice versa. ...”²².

The judge’s Judgment

16.1.  The application was heard over 5 days.  All parties were separately represented by counsel.  The DSW supported the Mother’s application, whereas PF and ISS considered that it would not be in G’s best interests to cease to be a ward.

16.2.  The Mother gave oral evidence²³, and the judge also met with G and listened to his views.

16.3.  On 23 April 2018, the judge handed down a comprehensive 68-page Judgment.  After setting out the background of the case, an agreed Scott Schedule of issues, the relevant legal principles and the facts in considerable detail, the judge discussed G’s views, his physical, emotional and educational needs, the effect on him of any change in his circumstances, his age, maturity, sex, social and cultural background, his mother’s attitude to him and to the responsibilities of parenthood, the capability of his mother and of his foster parents of meeting his needs, the practical difficulty and expense of keeping up his contact with his mother, and his mother’s plan for him if he were to be dewarded.

16.4.  Having considered all those circumstances and expressly noting that the Mother was free to make a fresh application to deward G in the future if and when she obtains further detailed information regarding the 4 Matters²⁴, the judge concluded that it would be in G’s best interests for him to remain a ward of court at the present time.

Appeal

17.1.  The Mother filed a Notice of Appeal on 18 May 2018.  Although she was no longer legally represented, she presumably had the assistance of someone with legal knowledge in drafting the grounds as they were drafted in legal language, and were comprehensive and detailed. 

17.2.  The Mother did not file any skeleton submissions but addressed this court orally at the hearing of the appeal.  Essentially she submitted that it was because she was poor that G was not “given back” to her, and that it was not her fault that because she had no money, G would not be able to go to school in the Philippines.  With respect to the 4 Matters, she said she would not be able to know anything further about them until she returned to the Philippines.  She knew that G would like to stay in Hong Kong and not go to the Philippines, but she says that was because he was better provided for here.        

17.3.  Detailed written submissions were lodged by counsel for PF, DSW and ISS.  The DSW’s position at the appeal was similar to that of PF and ISS, in other words, that the Judgment should be upheld. 

Discussion 

18.  The grounds of appeal in the Notice of Appeal can be divided into 5 broad categories:

(1) the wardship jurisdiction should not have been exercised when there was “no real imminent or immediate need to protect” G’s interests, since no real risk of abuse, neglect, violence, danger, harm or total incapacity to look after G had been established against the Mother²⁵;

(2) in view of the above, the judge erred in holding that the burden was on the Mother to provide a more solid plan for G before he could be dewarded²⁶;

(3) the judge erred in putting too much weight or not enough weight on various factors²⁷ and had failed to consider the Mother’s background, cultural and educational level²⁸, and the strain on her²⁹;

(4) the judge failed to respect G’s basic human right to live with the Mother as a family³⁰;

(5) the judge erred in placing more importance on the impact on G’s education than on the Mother’s practical difficulties on devising a plan for G, and on his cultural identity³¹.

19.  The 1^st category of grounds pertain to wardship jurisdiction.  

20.1.  As far this category is concerned, it is not the Mother’s case that G should not have been made a ward of court back in 2014 or in 2015 when the Consent order was made.  The ground of appeal was that he should no longer continue to be a ward since no real imminent or immediate risk of abuse, neglect, violence, danger, harm or total incapacity to look after G had been established against her. 

20.2.  However, wardship jurisdiction is not limited to those situations.  As Hartmann JA held in M v Y³², “there is admittedly no stated limit to the jurisdiction” because “each and every case is unique”. 

20.3.  Although his lordship held in that case that the “underlying common denominator ... is the imminent or immediate need to afford protection for a child when that protection may not readily be derived from any other source”, this court³³ subsequently held in CLP v CSN ³⁴ that M v Y should not be regarded as

“imposing an absolute prohibition against application for wardship when the immediate need of a child has already been catered for. It may be a relevant factor but it should not be an absolute fetter on the overall jurisdiction. The crucial consideration is whether there is any real need for the Court to exercise the wardship jurisdiction in the interest of the child and it is a broad discretionary jurisdiction with the ability to develop in light of prevailing social conditions”. (Emphasis added).

20.4. Indeed, this jurisdictional test of “real need for wardship in the interest of the child” was common ground between all counsel appearing before the judge who discussed it in §§30-31 of the Judgment.

20.5.  Therefore, there is no merit in this ground of appeal insofar as it seeks to resurrect the requirement of “imminent or immediate need” before jurisdiction could be found³⁵, or to confine it to cases of “abuse, and/or neglect and/or violence”³⁶, “danger”³⁷, “harm”³⁸ or “total incapacity”³⁹.

21.  The 2^nd category of grounds of appeal was as follows:

“The judge erred in holding that the burden was on the [Mother] to provide a more solid plan for the Ward to the Court before the judge can deward while there was no abuse and/or neglect and/or violence elements found on the [Mother] in the case”.

22.1.  It is obvious from the way this ground was formulated that it stems from a perception that abuse and/or neglect and/or violence would be required before wardship could be ordered or continued.  As discussed above, that perception is misconceived in law, and there is no merit in this ground either.

22.2.  In any event, the application on the part of the Mother not only signaled a change from her previous agreement to wardship.  Her plans for G also involved a substantial change to the child’s life so far (in particular, moving permanently to a country where he had never been before).  The judge cannot be faulted for requiring the Mother to provide a more solid plan for the child’s future before such a drastic step would be taken, and the door was expressly left open for the Mother to make a similar application if and when she did have more details and information on the material matters⁴⁰.

23.  As for the 3^rd category of grounds, the complaints first pertained to the weight given by the judge to one factor or another, or in other words, the judge’s evaluation of the facts.

24.1.  In ZJW v SY⁴¹, this court⁴² reviewed the approach that should be taken by appellate courts in appeals against various categories of findings of fact:

(1) findings of primary fact;

(2) findings based on evaluation of facts; and

(3) findings based on inferences.

24.2.  In respect of (2) findings based on evaluation of facts, the approach was set out in Assicurazioni Generali SpA v Arab Insurance Group (BSC)⁴³, where Clarke LJ held⁴⁴:

“Some conclusions of fact ... involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and ... appellate courts should approach them in a similar way”.

24.3.  In other words, if an appellant wishes to upset the judge’s evaluation of facts, she must demonstrate that the judge had misunderstood a material fact, or had failed to take a relevant matter into account, or had taken an irrelevant matter into account, or was plainly wrong. 

25.1.  In the present case, the grounds of appeal in this category did not suggest any misunderstanding of any material fact.  However, it was suggested in 2 specific grounds that the judge had failed to consider:

(i) the Mother’s background, cultural and educational level⁴⁵, and

(ii) the strain on her⁴⁶.

25.2.  Dealing first with (i), it is clear that the judge was aware of the Mother’s background, having expressly said “I accept that the Mother lacks education and is from a different cultural background”⁴⁷ and that her parenting skill “has to be seen in light of her background and culture”⁴⁸.

25.3.  As for (ii), that the judge failed to consider the Mother’s stress and anxiety caused by the separation, financial limitation and restriction in access and accommodation provided by ISS, the judge had expressly noted the following:

(1) the Mother has shown signs of depression but had not sought help⁴⁹;

(2) the reason the Mother gave for cancelling access to G was that ISS would then have nothing to report⁵⁰;

(3) her excuse for not attending counseling and parenting sessions (that she had no money for traveling expenses) was false as she had savings and she could have attended those sessions even if she did not receive any transportation allowances from ISS⁵¹;

(4) the Mother was “merely using the opportunity to air her grievances and dissatisfaction with [ISS] ... to try to achieve what she wanted from [ISS]” and she was not interested in improving her parenting skills for G’s benefit⁵².

25.4.  Apart from these specific grounds (i) and (ii), the grounds of appeal in this category did not suggest that the judge had failed to take any relevant matter into account. 

25.5.  Finally, it cannot be said that the judge was plainly wrong.  It is well-established that in the absence of any express ranking of factors, the relative weight to be given to each factor depends on the facts of the case⁵³, and the advantage of the first instance judge in seeing the witnesses applies not only to credibility and findings of primary fact, but also to the judge’s evaluation of the facts⁵⁴.  In the present case, it is clear from the Judgment that the judge had undertaken a comprehensive review of all relevant matters, including the Mother’s evidence and her interview with G, and had arrived at a well-reasoned conclusion.  There is no room for this court to interfere with nuanced matters of weight.

26.  The 4^th category of grounds pertained to what the appellant considered as the judge’s failure to respect G’s right to live with the Mother as a family. 

27.1.  Although the argument of the Mother’s right to live with G was raised in the Scott Schedule of issues, it was not pursued at the hearing⁵⁵.  It was correct for the Mother’s leading counsel⁵⁶ not to pursue that argument, for it is well-established as a matter of law that the primary concern in wardship is not to ensure the rights of parents, but to ensure the welfare of the child⁵⁷.

27.2.  The judge expressly stated that she bore in mind Article 9.1 of the United Nations Convention on the Rights of the Child that “a child shall not be separated from his ... parents against their will, except when competent authorities ... determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child”⁵⁸.  The judge’s sensitivity to the parent-child relationship can be seen from the fact that before setting out her conclusion at the end of a lengthy judgment⁵⁹, the judge specifically reiterated that she was “fully aware that the Mother is the birth mother of G ...”⁶⁰.      

27.3.  The judge also recognized that in considering what is in the best interests of the child, his right to maintain personal relations and direct contact with his parents on a regular basis is one of the factors to be taken into account⁶¹.  In this regard, Mrs K had testified that if the Mother returned to the Philippines but G was allowed to stay in Hong Kong, she (Mrs K) was prepared to take G to the Philippines once or twice a year to see the Mother⁶².  Her evidence was accepted by the judge, who in any event indicated that if necessary, that could be made part of the court’s order.

27.4.  In light of the above, there is no merit in the grounds that the judge had failed to respect G’s right to live with the Mother.  The judge was fully aware of the parent-child relationship but decided after a careful consideration of many factors, that it would not be in his best interests to be dewarded for the Mother to bring him to the Philippines when his future there was uncertain. 

28.  This leads to the 5^th category of grounds that the judge erred in placing more importance on the impact on G’s education than on the Mother’s practical difficulties and his cultural identity⁶³. 

29.1.  It is suggested that the judge failed to respect the practical needs of the Mother to find a job to ensure G’s basic needs (food, clothing and a place to live) before education, emotions and feelings are concerned.  Emphasis was also put on G’s “immediate need” to find out about his cultural identity. 

29.2.  In essence this category of grounds is also based on the judge’s evaluation process, which has been discussed earlier in this Judgment.  The judge was required to assess whether it was in the best interests of this child, then aged 9, to be taken by a parent, who had no interest in improving her parenting skills, to a new environment which was unknown to him, where he did not know any other people, did not understand the language, and where the future was uncertain, to the extent that he might not even be able to go to school for 1-2 years.  The judge found that it was not in the ward’s best interests, and it cannot be said that her evaluation was plainly wrong.

Order

30.  For the reasons given above, this appeal should be dismissed.  In the circumstances, there should be no order as to costs.    

Hon Au JA:

31.  I agree with the judgment of Yuen JA.