LHM v. HYF

FCMP 10 /2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NO. 10 OF 2010

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BETWEEN

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(Custody, care and control)

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J U D G M E N T

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1.  This is the parties’ contested application under Guardianship of Minors Ordinance, Cap. 13 (“GMO”) over the custody care and control as well as education of their only child, CY, a daughter born out of their cohabitation on 30^th July 2005 and is 5 years old but will be 6 in 2 months’ time. The parties were never married to each other but cohabited together at the Applicant Father’s property in Happy Valley from mid - 2005 until January 2010 when the relationship ended and the Respondent Mother brought the child to reside in her public housing unit in Lam Tin, Kowloon.  

2.  Typical of many highly emotional parental conflicts over their children especially a small child as in this case, not only were there numerous disputes between the parties over the upbringing of their daughter, but there were also multiple and often ugly allegations and accusations thrown almost unrestrained at each other from both sides, including 3 incidents of alleged child abuse reported to the police, all of which were subsequently found to be unsubstantiated, but the last one almost led to a tragic consequence, and it was only the resilience of the small child that no long lasting damage has been done to her, or so one hopes, and of which no doubt I will have more to say later in this judgment.            

3.  Another major issue between the parties which requires the court’s determination is over the child’s future schooling with the Father insisting that she returns to her former international pre-school in Happy Valley in preparation for an international school curriculum when primary school starts in the coming fall, while the Mother proposes that she should remain in her new kindergarten in Lam Tin to avoid further disruption and that the local curriculum would be more suitable for her.

4.  Needless to say, all these disputes called for the assistance of not just the social welfare officer, and here there were 2 involved, but also an education expert which turned the trial into a long procession of evidence and reports, not to mention the many affidavits filed by the parties, and no doubt with substantial legal costs incurred by both sides notwithstanding that the Mother is on Legal Aid.     

Background

5.  The Father, who is now aged 47, was born in Mainland China but emigrated with his parents and elder sister to Toronto, Canada when he was 12 and where he received education up to community college. Thereafter he worked in a fast food chain business with his parents in Toronto.

6.  In the early 90s his father came to Hong Kong to start some sort of investment business in the property market, and after his father passed away in 1997, the Father arrived to administer the estate and to take charge of the investment business. He soon purchased the said Happy Valley property in joint names with his mother, a 1,500 sq ft 3-bedroom flat, and settled in Hong Kong. In 2002 he capitalised his share of the estate and has since 2004 been spending his time at home investing in the stock market both for himself and his mother (“Grandmother”) with a combined portfolio, as I have been told, in excess of HK$27 million as of late 2010.        

7.  The Mother, who is also aged 47, was on the other hand born and raised in Hong Kong from a much more humble background. After graduating from secondary school, she started to work in a bank and eventually joined the civil service in 1987 where she is now a clerical assistant at the Education Bureau in Wanchai earning about HK$15,000 per month.

8.  The parties started their relationship in about 2004 which developed into cohabitation in 2005 as aforesaid in the Father’s Happy Valley home, when the Mother gave birth to CY shortly thereafter. After taking leave to care for the infant for about 7 months, the Mother returned to her day job, while the Father would continue to stay home to deal with his investments and to look after CY while the Mother was at work, with the assistance of his Filipino helper Gloria hired shortly after the birth. The Grandmother who has her own room in the property would also come to stay in between November and April each year, presumably to get away from the cold winter of Canada, before returning to Toronto in the summer.

9.  Sadly the parties’ relationship started to deteriorate towards the end of 2006 due to their many domestic disputes in particularly over the Mother’s unhappiness with the performance of the helper Gloria whom she later suspected of having an affair with the Father, apparently on the basis that she had been told by CY that she had seen him with Gloria naked in the bedroom, and demanded that her service be terminated, which affair was denied by the Father who claimed that the Mother was being unreasonable and too demanding of the helper, as there was nothing wrong with her performance and hence no reason to fire her. By mid-2009 this issue had become so embroiled between the parties that the Mother had even threatened that she would move out with CY and leave the Father for good.     

10.  Meanwhile in September 2009, after CY had reached the age of 3, she was enrolled into the afternoon section of Woodland Happy Valley Pre-school (“Woodland”), part of an international pre-school system on the Hong Kong Island designed for preparing toddlers for primary schools in the international curriculum such as the Bradbury School (“Bradbury”) of the English School Foundation (“ESF”) rather than the local curriculum. It appears that it was all along the Father’s desire for CY to further her education in Canada when she is older, but the Mother preferred that CY attend the local school in Hong Kong, which further fuelled their disputes.

11.  Despite receiving some counselling from social service in 2009, matters finally came to a head between the parties in early January 2010 when they had 2 serious disputes in quick succession, first on 1^st January over whether CY should go with her mother for tea with her visiting aunt or with her father to the Ocean Park, which led to some pulling and pushing and ended with the Father calling the police, and on 3^rd January again over the issue of Gloria.

12.  Over the next few days the Father suggested to the Mother that she should move out for a while so that they could cool down and consider their future relationship but she refused. Then on the morning of 7^th January 2010 while she was at work, the Mother received a telephone call from Grandmother informing her that the Father had decided to put an end to their relationship so that she would not be welcome to return to his Happy Valley home. He then arranged for some of her belongings delivered to the Mother’s office on the same afternoon.   

13.  Upon consulting legal advice on the same day, the Mother immediately went to Woodland to try to take CY with her but was prevented by the school officials apparently on the Father’s instruction. He soon arrived at the scene and there was a standoff at the school. Inevitably the police was asked to intervene and eventually in the evening the Mother was allowed to take CY with her on her promise to return her to Woodland for school the next day. They initially stayed at the Mother’s former residence at Kwai Chung, moving later to a public housing unit in Lam Tin allocated to the Mother in mid-January 2010.

14.  The Mother however failed to return CY to Woodland and instead placed her in a new school first at Sun Island English Kindergarten in Kwai Chung (“Sun Island”), and later in February 2010 changed her to Hong Ying Anglo-Chinese Kindergarten Child Care Centre in Lam Tin (“Hong Ying”) for the afternoon session where she has since remained. Initially the Mother also asked a female friend to look after CY while she was at work, but has since had the assistance of a hired Indonesian domestic helper.

15.  Shortly after the Mother had taken CY away, the Father launched these proceedings by issuing an originating summons on 14^th January 2010 seeking inter alia custody care and control of CY, an order for the Mother to restore CY to her former school at Woodland, and in the meantime for interim staying access to CY from Friday after school to Sunday in one week, alternating with visiting access in another week on Saturday, plus half of her major school holidays.

16.  At the 1^st hearing on 18^th January 2010 before Judge Chu when the Mother was then appearing in person, the application was adjourned to 2^nd February 2010 for the Social Welfare Department to submit an urgent report on CY’s arrangement, and upon his undertaking not to remove her from her current kindergarten without the Mother’s consent or leave of the court, the Father was also granted interim access to CY on every Saturday for not less than 4 hours each.

17.  At the return hearing on 2^nd February 2010, the Father applied for the interim custody care and control of CY which was opposed by the Mother, and hence the application was adjourned by Judge Chu to 10^th March 2010 for 2 hours for argument, while the Mother was given 14 days to file her opposing affidavit, and that the Social Welfare Department was also directed to submit a further report on the question of interim custody for that hearing.

18.  The Mother however filed her opposing affidavit almost a week late on 23^rd February 2010, presumably due to her application for Legal Aid which was subsequently granted to her on urgent basis, but for some unrelated reason not necessary to go into, the hearing fixed for 10^th March 2010 was further adjourned to this court on 11^th May 2010 when the parties agreed to jointly appoint a child education psychologist to prepare a report on the child’s future schooling.

19.  By then the parties had also accepted that instead of restoring the hearing on interim custody, the Father’s originating summons should be set down for trial which was then fixed for 3 days starting from 8^th September 2010. Meanwhile they were also able to agree for the Father to pay HK$4,000 per month as interim maintenance for CY commencing June 2010, that he was to have additional staying access to CY during her summer vacation, and that further social investigation report be submitted to court before the trial.

20.  Unfortunately it did not mean that the parties were prepared to call for a truce while waiting for the forthcoming trial. On 9^th July 2010 they returned to court when the Father sought further defined access as well as leave to bring CY out of Hong Kong to Canada for a 3 week holiday, but was opposed by the Mother for fear that he might not return CY to Hong Kong afterwards given his connection with that country.

21.  After hearing arguments from the parties Judge Melloy refused leave to the Father to bring CY to Canada but instead allowed him staying access to her for more than half of her summer school vacation, on the basis that, it seems, because he had had no staying access since when she was taken away by the Mother, and that the Mother would be working during CY’s summer vacation.                

22.  Less than a week later on 13^th July 2010 when the Father claimed to have found a bruise on CY’s knee during his access to her, and after consulting the social work officer then involved in preparing the investigation report, he called the police on suspicion that CY had been abused by her mother.

23.  As a result CY was taken to the hospital for examination and the mechanism for handling suspected child abuse incident was activated including detaining her in hospital for observation for several days, with investigations by the Social Welfare Department and the police to follow, and eventually on 11^th August 2010 a multi-disciplinary conference held by social worker, police and medical personnel determined that it was not established as a child abuse case. CY was subsequently returned to the care of her mother.

24.  Less than 2 weeks later on 21^st August 2010, in what the Father believed to be a tit-for-tat reaction, the Mother reported to the police that she suspected that CY had been sexually abused by the Father during one of her stays at his home when he was said to have touched her breast, thereby triggering off another round of investigations with CY spending another period of examination and observation in hospital. Again the resulting multi-disciplinary conference held on 2^nd September 2010 found that it was not established as an abuse case.

25.  Sadly, this was not to be the last of such allegation of child abuse, as 3 weeks later on 23^rd September 2010 the Father again reported to the police during his Mid-Autumn Festival access to CY when he noticed a bruise on her leg and again suspected abuse by the Mother. The same mechanism for investigations followed but as noted above this time it almost led to tragic consequences as during her detention in the hospital CY was suspected to have been sexually abused by a fellow patient of the same ward. As a result that patient was arrested by the police but at the time of the writing of this judgment, it was still not clear whether charges will be laid against him.

26.  Upon her discharge from the hospital CY was then released back into the care of the Mother whose own case of alleged child abuse over the bruise on CY’s leg was later again found to be un-established by the multi-disciplinary committee, while the Father has subsequently also withdrawn his complaint to the police, and thankfully there have since been no further major incident in respect of the child or between the parties.

27.  CY still attends Hong Ying in the afternoon session during which she would be taken to and from school by her Indonesian helper save for Wednesday morning when she would go her father’s home in Happy Valley for his interim access until after lunch when she would be escorted to Hong Ying for school in the afternoon. On Saturday from 6:30 pm to Sunday 8 pm she would also stay with her father for his staying access, while her school holidays would also be shared between her parents.

28.  The Mother has in the meantime also arranged for CY to attend various after school activities such as English and Mandarin lessons and dance classes, as well as going to church on Saturday afternoon before going over to her father’s home for staying access. As noted above, upon finishing her kindergarten in the summer, CY is to start her primary school in the coming September, for which the Mother has enrolled her into Fukien Primary School affiliated with Fukien Secondary School (“Fukien School”), a local school under the Direct Subsidy Scheme, whereas the Father has also made arrangement for her to attend the Bradbury School of ESF in the event he is granted her care and control.   

29.  It is the Father’s proposal that CY should return to live with him in his Happy Valley home and under his care and control as until their separation in January 2010, he had been her primary carer, that he has always been involved in her daily life, and the fact that he works at home means that he would be able to provide quality time and care for her during weekdays during which the Mother has to work and hence has to rely on her helper, whereas on weekends and school holidays CY can share her time with her parents, for which he proposes to have joint custody with the Mother. In addition he also argues that he is committed to providing the child with the best possible education by her attending Bradbury School which he believes is more suitable for her than the local school, and possibly for higher education in Canada when she is older.

30.  The Mother on the other hand insists that CY should remain in her sole custody care and control, so as not just to preserve the status quo in which she has settled well since January 2010, that she should be allowed to finish kindergarten at Hong Ying without any further disruption, and then to go on to Fukien School where she has already been accepted. As to the question of access, she agrees that the Father should be allowed to share CY’s weekends and school holidays equally with her.

31.  It is therefore clear that at issue is not only the question of care and control of CY but also whether there should be joint custody between these 2 parents, of which I have the assistance of several social investigation reports which support the Mother’s proposal in general, as well as which school CY should attend now and in the near future, which pits the local school curriculum against the international school curriculum, of which a report by an educational psychologist has been produced, which seems to favour the Father’s suggestion. It also appears that the issue of care and control and schooling are linked, at least as far as the Father is concerned, so that if care and control goes to him, CY should go to Bradbury, but he makes no such proposal if her care and control goes to the Mother.

32.  Given these multiple issues, it would be of assistance that the relevant applicable principles in particularly the latest authorities on joint custody be examined first before proceeding to discuss the evidence. I should also note here that it is the Mother’s intention to seek a higher sum of maintenance than the interim amount from the Father for CY in the event that she is granted her care and control, but that will be for another day.

The Applicable Principles

33.  The powers of the court to make orders for custody and maintenance on application of either parents, whether married or not, of their minor child, under the Guardianship of Minors Ordinance, Cap. 13 (GMO), are set out in s. 10(1) which provides that the court may make such order regarding the custody and access of the child as it thinks fit having regard to the welfare of the minor child and to the conduct and wishes of the parents.

34.  The principles governing the exercise of such powers, however, are set out in section 3(1) of the Ordinance by which the court must act :

“In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property –

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

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

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

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

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

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

(c)   where the minor is illegitimate –

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

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

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

35.  There is however no definition of the concept of ‘custody’ whether solely or jointly, or of ‘care and control’ in GMO or any other statute of ours, the job of which recently landed in the Court of Appeal in PD v KWW [2010] HKFLR 183, CA, where, upon dismissing a mother’s appeal against an order made by the divorce court giving custody of her 9-year-old daughter to her jointly with the father, Hartmann JA found it necessary to elaborate in details those concepts as follows :

“30. At a practical level, a convenient way of understanding the two concepts is to compare the nature of the decision-making that is required to put them into practice.

31. The decisions to be made by a custodial parent are those of real consequence in safeguarding and promoting the child’s health, development and general welfare. They include decisions as to whether or not the child should undergo a medical operation, what religion the child should adhere to, what school the child should attend, what extracurricular activities the child should pursue, be it learning a musical instrument or being coached in a sport. A parent vested with custody has the responsibility of acting as the child’s legal representative.

32. By contrast, the decisions to be made by a parent who (at any time) has care and control of the child are of a more mundane, day-to-day nature, decisions of only passing consequence in themselves but cumulatively of importance in moulding the character of the child. They include a host of decisions that arise out of the fact that the parent has physical control of the child and the responsibility of attending to the child’s immediate care. They include decisions as to what the child will wear that day, what the child may watch on television, when the child will settle down to homework and when the child will go to bed. They also include the authority to impose appropriate discipline.”

32.  His Lordship then referred to the misunderstanding commonly exists between disputing parents of the two concepts and dispelled them in no uncertain terms as follows:

“33. We have spoken of the misunderstanding that exists as to the nature and extent of the two concepts. This is most often manifested in the misperception that, if sole custody is given to one parent, that parent thereby ‘win’ the right to determine all matters big and small in the upbringing of that child while the parent who is not given custody ‘loses’ the right to have any say in the child’s upbringing. The present case is a prime example.”

34. The mother seeks sole custody because, to use her words, she wants to leave behind the conflict that has marked her relationship with the father since the breakdown of the marriage and wants to be left in peace to be able to raise the child as she thinks best, that is, to be able to determine such matters as the child’s education, religious upbringing and choice of activities free of any disturbance from the father. She is happy to let the child spend time with the father and is happy to keep the father informed of matters relevant to the child’s well being but she wishes to reserve absolutely to herself the manner of her child’s upbringing.

35. Equally, the father fears being deprived of joint custody because it is his view that society will perceive that he has thereby forfeited the rights and responsibilities of a father, being left only with the residual right to spend time with his daughter and the residual responsibility of making a financial contribution to the cost of her upbringing.     

36. It is to be emphasised in the strongest terms that if one parent only is given custody, that parent is not thereby given an absolute and independent authority to act without further reference to the non-custodian parent. Any such potential misunderstanding was quashed in Dipper v Dipper [1980] 3 WLR 626 in which Ormrod LJ said :    

“It used to be considered that the parent having custody had the right to control their children’s education, and in the past their religion. This is a misunderstanding. Neither parent has any pre-emptive right over the other. If there is no agreement as to the education of the children, or their religious upbringing or any other matter in their lives, that disagreement has to be decided by the court.”

37. In the same case, Cumming-Bruce LJ, another experienced family judge, said :

“….it (is) a fallacy which continues to raise its ugly head that, on making a custody order, the custodian parent has a right to take all the decisions about the education of the children in spite of the disagreements of the other parent. This is quite wrong. The parent is always entitled, whatever his custodial status, to know and be consulted about the future education of the children and any other major matters. If he disagrees with the course proposed by the custodial parent he has the right to come to the court in order that the difference may be determined by the court.”

38. A non-custodial parent therefore has the right to be consulted in respect of all matters of consequence that relate to the child’s upbringing. While the right to be consulted does not include a power of veto, it is nevertheless a substantial right. It is not merely a right to be informed, it is a right to be able to confer on the matter in issue, to give advice and to have that advice considered.

39. While therefore a parent who is given sole custody is given the authority, in the event of disagreement with the non-custodial parent, to make the final decision, it should only be made after due consultation and, if the final decision that is made is considered by the non-custodial parent to be inimical to the child’e best interests, the court may be called upon to determine the matter.

40. Invariably, therefore, the giving of sole custody to one parent does no more than recognise that, in the circumstances of the breakdown of the marriage, the best interests of the child are secured by giving to that parent the authority, if necessary, to make a final decision concerning matters of consequence in the upbringing of the child but only after the other parent’s views have been given full and rational consideration. I summary, an order of sole custody does no more than add a qualification being that the final decision will rest with one parent.

33.  His Lordship went on to emphasize that an order awarding care and control to one parent with rights of access to the other is in fact a form of shared care and control :

“43. Before leaving a consideration of the dual concepts of custody and care and control, it needs to be emphasised that, when a court awards care and control to one parent but rights of access to the other, as in the present case, the court is effectively awarding a form of shared care and control. This is because, when a parent exercises rights of access, especially staying access, that parent assumes care and control of the child for the time that the child is in that parent’s physical custody. Rights of access, it is to be remembered, are given – in the interests of the child – to ensure continued bonding between parent and child.

34.  It was also noted by His Lordship in his judgment of a shift in societal values on these concepts over the years and put forward what he considered to be today’s proper approach :

“44. There was a time when the parents of a child, more particularly the father, had almost absolute authority over that child. That is no longer the case. The principle that the best interests of the child – not the authority of the parents – must be the paramount consideration is today almost universally recognised. As Lord Fraser said in Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social security [1986] AC 112 at 170 :

“… parental rights to control a child do not exist for the benefit of the parent. They exist for the benefit of the child and they have justified only in so far as they enable the parent to perform his duties towards the child.”

45. There was a time also, not so long ago, when the roles of the mother and the father in the raising of their child were viewed with almost equal rigidity. The mother was best left to care for the child, certainly when the child was young. The father was best left to provide financial support and to exercise rights of guardianship. As for his contact with the child, visitation was deemed sufficient. Today, such sexist views are obsolete.

46. Social imperatives change. When they are important and lasting, the common law can, and should, keep pace with that change.

47. It is widely recognised today that the long-term best interests of a child are invariably best protected if, despite the breakdown of the marital union, both parents are able to continue to play an equal role in making the important decisions that will determine the child’s upbringing.

48. In the United States, for example, shared custody is common. The courts routinely grant joint custody orders unless one parent is clearly found to be unfit.

49. In England and Wales, for example, the Children Act 1989 has sought to emphasise the continuing parental responsibility of both parents even if an order has been made that the child will reside with only one of them.

50. Other common law jurisdictions – for example, Australia – have made legislative changes to similar effect, that is, where appropriate, to ensure the continued active involvement of both parents in the upbringing of the child, or children, of their marriage.

51. The Hong Kong Law Reform Commission Report on Child Custody and Access of 2005 recommended changes in line with the Children Act 1989 but regrettably, to date at least, little appears to have been done to give the Commission’s recommendations legislative form.

52. Today, although there has been no change in our law similar to many other common law jurisdictions, orders of joint custody are in no way exceptional. This is because it is accepted that, in principle, such orders are in the interests of children.

53. In all but the most exceptional circumstances, the effect of divorce on the children of the marriage, especially children of tender years, is deeply felt. In all but the most exceptional circumstances, such children desire that they should continue to be protected and guided by both parents. The case before us is an example.

54. In the results, in the best interests of the child, the fact that, as a result of the breakdown of the marriage, relations between the parents are strained is not of itself a reason to refuse to make a joint order of custody. Nor is the fact that the parent to be given care and control does not agree. Such orders look to the future. They will govern a limited area of exchange between the parents, albeit one of the greatest importance.

55. Accordingly, the issue for the judge is whether, with the court proceedings concluded, it is reasonably anticipated that the parents will be able to agree on the questions of importance that will determine the upbringing of their child, both recognising that, as difficult as it may be for them, this process of co-operation is in the best interests of the child.

56. In determining this issue, the judge is entitled to proceed on the presumption that competent, loving parents possessed of sufficient objectivity to be able to make rational decisions in the interests of the child will be able to co-operate with each concerning matters of importance in the upbringing of the child.

57. At all time, of course, the welfare of the child remains the first and paramount consideration. As this Court has recognised {see, for example, Y v P [2009] HKFLR 308}, there may be occasions when the ability of the parents to reach any rational accord in respect of important matters concerning the upbringing of their child is so deeply undermined that to compel attempts at co-operation will not protect the interests of the child but only leave the child more vulnerable.

35.  It is thus with these principles as my guidance and with the welfare of the child as my paramount consideration, that I shall now consider the evidence before me, starting with the social investigation reports.

Social Investigation Reports

36.  There have been a total of 5 such reports by 2 different social work officers in this case, dated respectively 29^th January 2010, 11^th May 2010, 10^th June 2010, 31^st August 2010 and 15^th November 2010, unusually high it may seem, but the first 2 were mere holding reports at the initial stage of the proceedings and on the interim arrangements for CY, while the last 2 were progress reports, especially with the last one called for as a result of the said sexual abuse incident in the hospital.

37.  Of particular relevancy is the one which addressed the main issue of custody dated 10^th June 2010 and prepared by the 1^st officer Ms Wong (PB : 229 – 237) in which both parties were found to be caring and loving parents, that each had their own advantages in their respective case, and while the worker had difficulty weighing them up in favour of one parent over the other, she nevertheless concluded that the Mother’s request for the sole custody care and control of CY should be supported, as she explained at the end of her report (PB : 236 – 237) :

“27. In CY’s early childhood, it was the father who had taken up a main carer role while it had been shifted to the mother in the past few months. Both of them, with the assistance from the domestic helpers, do show their ability to render adequate care and concern to the girl. Whereas the father’s resourceful background making him available to become a full-time care-giver and he is also sincere in keeping an intimate relationship with his daughter through the pursuit of custody, the mother has also shown her commitment and efforts in taking of the child’s growth and development. If the parents make the childcare tasks their common cause, the child may be brought up the pink of perfection. Joint custody, under this philosophy, has been proposed because it has the value of simulating the normative family system, supporting the continuation of parent-child roles prior to separation and mitigating the negative aspects of separation to the child. However, Mr. L and Madam H have rejected the idea of sharing the custodial right as they consider the joint custody is not workable due to the difficulty for them to communicate and compromise.

28. As a matter of fact, it is really difficult to comment which parent outweighs the other in the present case. For the time being, the girl has been leading a pretty settled life and is happily staying with the mother who has a stable job and can devote most of her leisure time which is deemed to be suitable for a pre-school age girl. It is beyond doubt that any change of the caring hand at this stage will require the girl’s immediate adjustment which is likely to tilt the unfavourable side of the balance. More important, the girl feels secured and safe when she is staying with her mother. Their physical and emotional bonding is seen to be strong. Though the girl cannot show her preference very clearly, her attachment with the mother indicates her affection toward the latter. In view of the girl’s tender age who is still in the pre-school age and going into school age, her development need to have a caring figure for her to learn is significant and essential. From the psychologist’s point of view, a sex-role identification will definitely beneficial to the girl’s growth and development. This being the situation, the chance that Madam H and her daughter will be restored to a normal and stable life should be higher if the custody of the girl is granted to the mother. In this regard, the undersigned would like to recommend that the custody of the child of the family, namely CY, be granted to the Respondent, Madam H and the applicant, Mr. L be given reasonable access.”

38.  It seems from the above that in the officer’s view essentially 2 major factors stood out in favour of the Mother in what is no doubt a very close case as to care and control : that CY has settled well in the care of her mother which should be preserved to avoid having to make adjustment to changes, and that as a girl of tender age, being with her mother will benefit her more as to her growth and development. Furthermore, Ms Wong did not consider joint custody suitable in this case mainly because she agreed with both parties that it would not work.

39.  The 2^nd officer Ms Lee took over the case shortly after last summer when Ms Wong was transferred to another section of the department, and was the one who wrote up the last report of 15^th November 2010 (PB : 377 – 386) as a result of the said alleged sexual abuse of CY in the hospital, in which the officer found CY to be emotionally stable with no unusual behaviour, and that it seems she has not been scarred or in any way adversely affected by that ordeal, much to everyone’s relief indeed, for now, I must say.

40.  It would be useful to refer to the officer’s description of CY’s present condition in paragraph 4 of her report (PB : 378) :

“4. CY was promoted to study K.3 (PM session) in the Hong Ying Anglo-Chinese Kindergarten/Child Care Centre in September this year. As reported by Ms CHOI Lai-ching, the Class Teacher, CY was enthusiastic and attentive at studies. She often volunteered to answer teachers’ questions or initiated to ask for help from them when she encountered difficulties. CYhad good self-care ability. Besides, she was helpful and showed her concern towards others. She was cheerful and had some good friends that they often held their hands to play around together at school.

5. Regarding her daily routines, CY wakes up at about 9 a.m. In the morning, she usually watches television programmes, does some revision, practises writing vocabulary or goes downstairs to playground to play with other children or cycling under the care of the domestic maid. She is also enrolled to join other interest classes at school i.e. Putonghua and Latin dance. Apart from these, CY attends an English class on Friday morning. On the request of CY, Madam H also let her learm piano from mid October. On Saturday morning, CY joins a 6-session abacus arithmetic class and in the afternoon she would attend church activities. Madam H takes acre of CY after she returns home from work, including accompanying her to do homework, talking with her, reading stories, and helping her to bathe. During holidays, she would also play and have outings with CY.”  

41.  Ms Lee however in the same report elected to also look into the custody issue between the parties and arrived at the same conclusion as her predecessor as follows (PB : 385) :

“33. In the present case, the crux of the custody matter is which parent would be best suited to take care of CY on a day-to-day basis, thus meeting the best interest and promoting the well-being and long-term development of the child. Given that both parents have genuine love and commitment to take care of CY while the latter shows equally intimate attachment and fondness for them, it is certainly a significant strength in Mr. L for being able to dedicate himself to provide full-time care to CY. On the other hand, Madam H is capable to provide reasonably and directly the required care to CY though support from the domestic maid is required.

34. Furthermore, human wisdom tells that at this tender age, the mother plays a more prominent role in the upbringing both in terms of the child’s emotional and physical needs. Mothers are generally more emotionally bonded and atuned to the children’s feelings. There is no other evidence to suggest this would not be the case here. Considering that CY had gone through the sexual abuse incident, motherly love and attachment are deemed essential to help her through despite there is no adverse impact reported/observed so far. Besides, comparatively Madam H is more capable in setting appropriate limit on the child’s behaviour and very keen to equip herself to understand the child’s needs and discharge her parenting duties effectively.

35. While the parents are incapable to set aside their mistrust and resentments and to work co-operatively for the welfare of their beloved child till present, there are practical difficulties for joint custody which requires close co-operation and good communication between the parents. Regarding the access issue, based on the past smooth implementation under defined terms, it is worthwhile to try out defined access arrangement without assistance from a Social Work Officer. It is proposed that both Mr. L and Madam H can be more aware of the importance of negotiation and compromise in the process of access arrangement and maintain a peaceful and functional co-parental relationship.

36. Taking all the above into account, I would like to recommend for the Court’s consideration that the custody of the child, CY, be granted to Respondent, Madam H, with defined access to Applicant, Mr. L…”

42.  It seems clear that Ms Lee arrived at the same conclusion on similar basis as Ms Wong, although she has the additional reason of believing that CY would need her mother more to get through the sexual abuse ordeal, a factor obviously not then existed in Ms Wong’s mind at the time of her report. Similarly Ms Lee did not consider joint custody would work given the Mother’s same stance as before, although the Father appeared to have by then changed his position and expressed his willingness to share joint custody with the Mother, of which he has confirmed in his evidence.

43.  Ms Irving for the Father has however criticised both Ms Wong and Ms Lee for falling straight into the gender stereotypes by concluding in favour of the Mother in respect of CY’s care and control, when Ms Wong commented in her report “From the psychologist’s point of view, a sex-role identification will definitely be beneficial to the girl’s growth and development” but has not produced any evidence from a psychologist to support her view, while Ms Lee also declared in her report “human wisdom tells us that at this tender age, the mother plays a more prominent role in the upbringing both in terms of the child’s emotional and physical needs. Mothers are generally more emotionally bonded and attuned to the children’s feelings”, when in fact she found that CY shows strong physical and emotional attachment to both parents and is equally happy and lively with both of them. 

44.  Ms Irving argues that it seems discriminatory against the Father for both officers to take this gender line notwithstanding that the caring roles had been reversed in this family historically, that the Father could offer full time care to CY, and that there is no reason why the gender identification with the Mother could not be satisfactorily achieved during the time when CY would spend with her mother, which under the Father’s proposals would be reasonable.

45.  Most important, she points out, that from the Court’s point of view, when it is expressly forbidden from considering a mother’s claim to custody as being superior to that of a father’s, or vice versa, is that Ms Wong has expressed no concern about the Father’s ability to provide proper care to CY, and has rejected claims by the Mother that the child had led a “loose life” in the past with the Father.

46.  While it is correct that there was no evidence from a  psychologist to support their views, I find Ms Irving’s criticisms not entire fair to either officer, as it was certainly part of their duties to consider the child’s gender and its related needs and the capability of the parents to meet such needs, which is in fact within the so-called “Welfare Checklist” adopted from England’s Children Act 1989 and contained in the Law Reform Commission of Hong Kong Report on Custody and Access of 7^th March 2005, and set out in Ms Irving’s Closing Submission, which the Report recommends that the Court should have regard to, and which she submits should be applied in this case as well.

47.  Specifically, this particular aspect of the child to which the Court should have regard is in item (e) of the List, which in my view should in fact be read together with item (i) as follows :

(e)  the child’s age, maturity, sex, social and cultural background and any other characteristics of the child which the court considers relevant;

(i) how capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

48.  While the Report’s recommendations, as pointed out by Ms Irving, have not yet been formally adopted, the said “Welfare Checklist”, or many of the matters mentioned therein, have generally been accepted by our courts as relevant or at least helpful in deciding what is in the best interest of the child, and that amongst them the age and gender of a child are certainly relevant in that they clearly relate to the child’s needs, which then point to who is best suited to fulfilling them.

49.  There cannot be disputed that in many families, mothers are the primary care-giver to children, which may be so even if the mother works outside the home, and as such, she may have the advantage of having demonstrated her ability to cater to her children’s needs, hence judicial statements can be found, going back in years, to the effect that, all things being equal, a child of tender years should be with its mother, as in the English case of H v H [1969] 1 All ER 262 when Salmon LJ said at p. 262 :

“On the whole the best place for a boy of 3 ¾ is with his mother; is there anything to displace that human view? I entirely agree with that approach. I think there is no doubt – and this is not a proposition of law – that from the point of view of common sense and ordinary humanity, all things being equal, the best place for any small child is with its mother.”

50.  In the more recent case of Re W (a minor) (residence order) [1992] 2 FLR 332, Balcombe LJ said at p.335 :

“Although there is undoubtedly no presumption of law that a child of any given age is better off with one parent or the other … no court can be ignorant of what would be the natural position if other things were equal. It hardly requires saying that a baby of under four weeks old would normally be with his or her natural mother.”

51.  That case of course concerned a much younger child, in fact a baby, but this approach was approved by our Court of Appeal (Yang, Silke & Barker JJA) in the case of Chow Cheung Suk King v Chow Yan Piu (CACV No.180 of 1984) which involved children of 1 ½ and 5 years.

52.  In another appeal of the case of Wong Yip Yuk Ping v Wong Sze Sang Michael (CACV No. 116 of 1985) before a different court (Cons, Fuad & Kempster JJA), this judicial statement was applied to children of 7 and 9 years when Cons JA said :

“(counsel) suggests that it applies only to children considerably younger than the ones we are concerned with. With respect, I do not think that is so, although naturally the age of the children is relevant. It is a factor that becomes less important as the children grow older, with a caveat perhaps, in the case of young girls approaching puberty. Its importance may perhaps also be less where the circumstances are such that the mother … has not established such a close bond with the children in their infancy as she might have done. Of course it is not a rule of law. It is not even indeed a presumption. But it has become so well established that I would expect any judge, when considering custody, to take that as his starting point before turning to consider whether in the particular circumstances he should go further.”

53.  It is therefore clear that a child’s age and gender is relevant to determining with whom he should reside, and while there is no presumption or principle that a mother should have the care of young children, the advantage to a very young child of being with its mother is a consideration which must be taken into account, as Butler-Sloss LJ (as she then was) said in Re S (a minor) (custody) [1991] 2 FLR 388 at 390 :

“The welfare of the child is the first and paramount consideration. Under the Guardianship of Minors Act 1971, under which this matter is being dealt, there is no presumption that one parent should be preferred to another parent at a particular age. It used to be thought many years ago that young children should be with mother, that girls approaching puberty should be with mother and that boys over a certain age should be with father. Such presumptions, if there were ever such, do not, in my view, exist today. There are dicta of this court to the effect that it is likely that a young child, particularly perhaps a little girl, would be expected to be with her mother, but this is subject to the overriding factor that the welfare of the child is the paramount consideration. When there is a dispute between parents as to which parent should take the responsibility of the care of the child on a day-to-day basis, it is for the justices or for the judge to decide which of the parents would be the better parent for the child, who cannot have the best situation since they are not together caring for her. I would just add that it is natural for young children to be with mothers but, where it is in dispute, it is a consideration but not a presumption.”

54.  The correct approach to deal with this particular aspect of the child has since been summarised by the House of Lords in Brixey v Lynas [1996] 2 FLR 499, HL, in which the appeal related to the custody of a 4-year-old illegitimate girl born in Scotland in 1992 as a result of an association between the mother, then aged 20, and the father aged 18, begun when the father was still at school. The parties lived with the father’s parents for a short time and then separated . The father removed the child by subterfuge and the mother obtained an interim order for the delivery of the child to her. In July 1993 the sheriff after a trial awarded custody to the father. He found that the child was happy and well cared for in the mother’s house, but drew attention to the different social background of the parties and concluded that it would be in the child’s best interests to become part of the father’s family and have ‘all the advantages of comfort, education and a strong and stable moral framework’ which they could offer. The mother’s appeal to the Court of Session First Division was allowed, however, on the basis that, in holding the advantages of the father’s social background to be decisive, the sheriff had failed to take into account the advantage of maternal care for a very young child, and the advantage of maintaining status quo which had successfully existed since the child’s birth. The father appealed to the House of Lords on the main ground that the court had erred in accepting a principle of maternal preference, with the sexual discrimination which that was said to involve.

55.  In dismissing the father’s appeal, Lord Jauncey of Tullichettle stated that regard must be given to the recognition of the normal mother’s natural ability to look after a small child at p.504 :

“…To determine what is in the best interests of a very young child regard must necessarily be had to its relationship with the mother with whom it is living. To suggest that any recognition of the normal mother’s natural ability to look after a very young child amounts to sexual discrimination is absurd. Nature has endowed men and women with very different attributes and it so happens that mothers are generally better fitted than fathers to provide for the needs of very young children. This is no more discriminatory than the fact that only women can give birth. Every case must be considered on its own facts. There will be cases where the mother is wholly unfitted to care for even the youngest child and the court will proceed accordingly. There will be other cases where the child is older and the matter is finely balanced. However, here the child is very young, has never been separated from its mother or half-sister for any significant length of time and it is not suggested that the mother is unsuitable to care for her. In that situation the advantage of continued care with the mother without disturbance of the status quo must be an important factor to be taken into account.”

56.  His Lordship then went on to summarized the proper approach as follows (P.505) :

“…to summarise, the advantage to a very child of being with its mother is a consideration which must be taken into account in deciding where lie its best interests in custody proceedings in which the mother is involved. It is neither a presumption nor a principle but rather recognition of a widely held belief based on practical experience and the workings of nature. Its importance will vary according to the age of the child and to the other circumstances of each individual case such as whether the child has been living with or apart from the mother and whether she is or is not capable of providing proper care. Circumstances may be such that it has no importance at all. Furthermore it will always yield to other competing advantages which more effectively promote the welfare of the child. However, where a very young child has been with its mother since birth and there is no criticism of her ability to care for the child only the strongest competing advantages are likely to prevail. Such is not this case.”

57.  This view was recognised and acknowledged by our Court of Appeal in the case of R v Y (CACV No. 193 of 2010) which involved 2 children aged 6 and 8 respectively when Rogers VP said :

“This court was reminded of a large number of decisions which have stressed the importance of the mother in the life of a young child. In this respect I would simply refer to the case of Brixey v Lynas [1996] 2 FLR 499. It is unnecessary to cite from the speech of Lord Jauncey; it is sufficient to say that what he said there was clearly based on practical experience and the realities of life and is not a matter of prejudice or discrimination.”

58.  Both Social Work Officers are evidently well experienced in this field and having heard their evidence in court, I believe it must be this “practical experience and realities of life” that they meant to say when they referred to “human wisdom” and ‘psychologist’s point of view” in their reports about the advantage of a small child being with its mother. The Father may of course argue that the truth of that statement must be premised on the mother being the primary carer, which he insists was not the case with CY here, as even the Social Work Officers have described him as the primary carer before the separation. This is however disputed by the Mother, and hence this judicial statement of general experience must be examined in the light of the facts of this case, starting with who had in fact been the primary carer.

Primary Carer

59.  It is not in dispute that, as noted above, the Mother returned to work about 7 months after the birth of CY, which would put it in early 2006 after the Chinese New Year, when CY was about 7 months old, when she would leave home around 8 am for her office, returning by 6 pm everyday from Monday to Friday during the relationship, while the Father on the other hand would be at home most of the time managing his investments, and hence in a position to take care of CY when the Mother was at work, albeit with the assistance of Gloria, from thence onward up to the time of their separation.

60.  This is in fact also confirmed by Ms Wong in her report under the topic of childcare history and parenting (PB : 230) :

“5. … As a full-time homemaker, Mr. L was responsible for taking care of CY with the assistance of the full-time domestic helper while Madam H took up job in the day-time. When the paternal grandmother stayed in Hong Kong, she would give a hand also. While Mr. L committed most of the day-time and effort to look after the child, Madam H had full-time open employment as a working mother. It was thus understandable that the parental involvement in the child’s daily routines including planning the weekend activities and attending the parents’ day went mostly to the father. When madam H returned home after work, she would join the daughter for fun as well as bed-time talk. The family would go out for activities during weekends and holidays.”

61.  In his 1st affirmation of 13^th January 2010, the Father set out what he claims to be the arrangement of CY up to January 2010 (PB : 19) :

“32. I have been a full-time father taking care of the Child since her birth with the assistance of Gloria and Grandma. Gloria was employed in about Dec 05, a few months after the birth of the Child, to assist me in taking care of the Child for instance, feeding and bathing the Child in particular when she was a toddler, taking the Child to and picking her up from her school. In addition, Gloria does all the household works, the cleaning and most of the cooking. I like cooking and occasionally I would cook. I have also taught Gloria to cook from time to time.

33. Gloria is aged 47 and has 12 years working experience as a domestic helper prior to her first contract with us. She is very an experienced and a responsible helper. Both Grandma and I have treasured her contribution towards the household.

34. I used to attend the Child on her school works, play with her computer games, talk to her, tell her stories, do the readings with her together, put her to bed, have outings with her, buy her toys etc.

35. I did all the research for the Child on her pre-school education. I made applications on behalf of the Child to various international nurseries for a placement. Ultimately, I decided to and did enrol the Child into Woodland.

36. Both Grandma and I deliberately converse with the Child in English at home to provide her an English-speaking environment.”       

62.  While I have no reason to doubt the Father’s role in the life of CY from her birth to their separation, I find his described details in the arrangement for CY glaringly missing the involvement of the Mother. In fact, it appears that even the role of the domestic helper Gloria in the care of CY appears much more substantial. Elsewhere in his affirmation, the Father has made similar statements of his role and involvements in CY’s life without any reference to the Mother as follows :

“29. As a matter of fact, ever since the Child has attended her schooling at Woodland, the Respondent has relied on me solely regarding matters on or related to the Child’s schooling. For instance, I was the only parent who attended the Child’s interviews, parent-teacher meetings, her sports day and school trips. For instance, only Gloria and I attended the Child’s interview when I applied to Canadian international school for a placement in its preschool for the child. The Respondent just feels not comfortable in an English speaking environment. I was once a parent helper at the school picnic. I was the only parent who liaised with Woodland on all matters on or related to the Child for instance the checking of the school’s notices, the signing of her handbook, the purchase of school’s stationery, the liaison with the Child’s teachers/tutors etc. About once a month, I used to attend Woodland to discuss with the teachers or the Supervisor the progress of the Child. Occasionally, the Child insisted that I should bring her to school and on those occasions, I would talk to her teachers regarding the progress of the Child. On one occasion, the Child was crying hard at school and the Supervisor phoned me to find out what happened. Therefore, every teacher and staff at Woodland knows me well.

30. I did the research on various interest groups for the Child. I enrolled the Child into swimming classes organised by English School Foundation during last summer. I had attended on the Child whilst she was taking her swimming classes. I enrolled the Child into Mini-sports organized by Play Sports in last summer. The event was a one-week programme lasted for 5 days consecutively during which the Child was taught various exercises and sports. I had attended the event and had accompanied the Child during various sessions of the Programme. I even video-taped the whole event so that the Child in future might watch the tapes to restore some of her happy moments. I want the Child to be all round and to have a healthy development physically and mentally.”  

63.  Are these fair and accurate statements of the parties’ involvement in the care of CY before their separation? The Mother does not seem to dispute the Father’s role in the care of CY, understandably so when she herself would be at work during the daytime, but she has this to say in her affidavit of 22^nd February 2010 (at PB : 149-14) :

“37. The Applicant is unemployed and he always buys stocks or is idle at home. The Daughter led an undisciplined life under the care of the Applicant. Other than going to school, the daughter was with her idle father. Therefore, the daughter often followed her father to sleep and had not learnt the skill of taking care of herself…

39. The Applicant did not know how to educate the daughter. When the Daughter hit him, he would let her do so. He actually spoils the Daughter. When the Daughter asked for something and cried, the Applicant would immediately concede to her request.

40. As the Daughter grew up, her life remained undisciplined as she slept late every night and got up late every morning. The Daughter likes morning classes. In order to be able to sleep more in the mornings, the Applicant refused to allow the daughter to take part in morning classes. Because the daughter studied in afternoon classes, she had to take a nap each day after school until 08:00 pm or 09:00pm, at which dinner would be served. Owing to irregular meal times, the Daughter needed to drink milk twice or thrice each night. I even frequently bathed the Daughter during wee hours. I had to go to work in the morning and still had to take care of daughter in the evening. The Daughter also frequently pushed away her quilt at night. So, each night, I had to continuously ensure that the daughter had her quilt on. The Applicant never understood me or offered help.”  

64.  The Mother’s evidence on this issue is therefore that as soon as she came home from work, she would take over the care of CY until she went to bed, and she is critical of the Father’s tendency to spoil CY by indulging her without due regard for any discipline, and of his failing to properly train or guide her, as he did not have his own idea about anything and would just listen to his mother, while on the other hand he was said to be a male chauvinist and a controlling person, of which she said (PB : 149-6) :

“19 … The Applicant is a male chauvinist. Since he has not been working outside for very long time, he does not have any friends and lives in his own world. The Applicant does not have an idea of his own and listens entirely to his mother. As a result, the Applicant’s mother is the one who is in control of the family including all the finances…

21. The Applicant is very controlling and possessive. His thinking and behaviour are extreme and autocratic. Recently, the Applicant was suffering from gout and was required to become a vegetarian. He also made the Daughter follow his diet. The Daughter therefore was not able to absolve a variety of nutrients. As a result, we had many differences of opinion on the Daughter’s diet.

22. The Applicant did not allow me to take the Daughter out alone, such as going to church with the Daughter, participating in community activities, going to visit my maiden family or playing with the daughter’s cousins, etc. I wished the Daughter could participate in different hobbies such as learning the piano, ballet dancing or mandarin classes, but the Applicant said he did not like all these things and thus refused to let the daughter take part.”                                           

65.  While all these allegations have been denied by the Father in both his evidence and his affirmations, and that it is not clear how the Mother could have found out that he would spend his day sleeping when she was away at work, but having seen and heard both parties for days in court, I am inclined to accept that there is some truth in the Mother’s case at least about the Father’s domineering position in the parties’ relationship and in respect of CY as far as her education is concerned.

66.  Firstly, I agree with Mr Surman’s description of his client the Mother as a simple, straightforward and unassuming person, and if I may add, gentle, soft-spoken and unsophisticated as well, while the Father by comparison appears to me more confident and assertive, and it would not be difficult to imagine that he would be domineering over the Mother in his own household during the relationship. There are ample examples in the evidence before the court, starting with what seems to me a condescending tone in his many references to the Mother in his testimony in court when he would just call her “that woman”, and in his affirmations, such as the one dated 13^th January 2010 when he described her lowly family back ground with a paralyzed mother and a brother serving prison term in China (PB : 015) of which I find absolutely no probity value except perhaps to embarrass the Mother, or when he put down her English level (PB : 018). Factually he may well be correct, it is the way he put them that reveals how he had regarded the Mother during their relationship.

67.  Other clear examples are his insistence to enrol CY into international school, his demand of the Mother to contribute almost half of her monthly income towards CY’s future education fund despite the seemingly large disparity between their means, his neglect to even show her the account of such fund until at the trial, his persisted siding with Gloria despite the Mother’s unhappiness with her, and above all, the way he ended their relationship and told her off as described above all go to support the Mother’s case that the Father was indeed chauvinistic and controlling.

68.  While all these should not of course distract from the fact that the Father was at home to look after CY during the day when the Mother was at work, I accept the Mother’s evidence that it was she who would take over the care of CY in the evening and on weekends, as verified by the reports and subsequently admitted by the Father as well in his 3^rd Affirmation (PB : 155 p16-17). It is therefore a case that both parents had been the primary carer of CY, albeit at different times of the day on weekdays, as well as on weekends, but the evidence also reveal significant aspects or even flaws in character between the parties which may impact or affect their parenting fitness or ability over CY in the long term.

Parental Fitness

69.  One of the most contentious issues between the parties at the trial was their dispute over Gloria. Much have been said about a suspected affair between her and the Father, or of the Mother’s unreasonable rejection of her, but whatever the truth of these allegations, they are not in my view directly relevant to the matter now before me. What seems relevant to me is Mr Surman’s criticism that if indeed there was no affair between him and Gloria, then the Father’s insistence in retaining the service of Gloria instead of letting her go in order to save his relationship with the Mother which would otherwise adversely impact, as it has since been shown, on the welfare of their only daughter, would call into question his judgment or ability to act in the best interest of the child, as it is submitted that what he did in the past may well tell of his future actions and behaviour.

70.  The same doubt, Mr Surman argues, should also be raised over his ability or willingness to co-operate with the Mother over the future welfare of the child by his actions in accusing her of child abuse twice over a short period during the summer of 2010 which as aforesaid almost led to some irreparable harm to CY on the 2^nd occasion, and by his pursuit of the allegation with the police notwithstanding the negative finding by the multi-discipline committee until much later and not before the Mother had been put through a great deal of strain, which behaviour Mr Surman submits certainly does not bode well with his proposal for joint custody with the Mother.

71.  The Father’s evidence in respect of his 1^st report of suspected child abuse in July 2010 is that it was the child who told him that her mother had hit her with a ruler in a park that caused the bruise on her knee, that she had in fact been hit many times, and that he only went to the police on the advice of Ms Wong the 1^st Social Worker, hence it is submitted that he should not be criticized at all under the circumstances and given his concern for his daughter.

72.  As for his 2^nd report in September 2010, the Father’s explanation is that while the Mother did call him on his access day to inform him of a bruise on CY’s leg, she never explained how it was caused and just told him not to make a fuss about it, which caused him to be concerned that she had indeed hit the child again but that she was trying to avoid him reporting it. Ms Irving further argues that the subsequent video interview conducted by the police on CY which the Father has seen, during which CY did confirm that she was hit by her mother with a ruler, and that she had hidden the ruler under a mattress at home so that her mother could not hit her with it again, does show that the Father was correct in bringing the matter to the attention of the relevant authorities, and that his motive was never to make trouble for the Mother but to protect his daughter for which he cannot be criticised at all, in particularly of the subsequent incident in the hospital.

73.  Firstly, it must be made clear that what happened to CY during her detention in the hospital in September as a result of the 2^nd report could not have been foreseen by the Father, or by anyone else for that matter, and hence there cannot be apportioned any blame to him for that incident, but in responding to the Mother’s criticism of his motive for making those child abuse reports, Ms Irving retorted that what else was he to do when the child told him she was continuing to be hit by the Mother with a ruler, it seems to me that he was not without better or more appropriate alternatives, such as confronting the Mother first about those bruises, sought an explanation from her if they were indeed caused by hitting, and discussed with her the proper methods of disciplining the child, instead of going straight to the authorities, bearing in mind, as pointed out by Mr Surman, of the nature and severity of the injuries in question.

74.  I do not think anyone can argue that it is a fact of life that  children in particularly small ones do have accidents from time to time and hence not every bruise on a knee is caused by hitting, and not every hitting is an act of abuse or mistreatment of that child, as demonstrated by the findings of 2 different multi-disciplinary committees on the child abuse reports by the Father in this case, and while I have no doubt of his love and concern for his daughter, I can understand the Mother’s criticism of his actions or her suspicion of his motive for making such a serious accusation against her not once but twice to the police without first giving her any opportunity to explain.

75.  Granted that his decisions to go to the police were not predicated just by the sight of the bruise on CY’s knee but perhaps more so by what the child had allegedly told him about the hitting, which was further abetted by the advice of the social worker given, as I understand, on the telephone without any first-hand knowledge of hitting on her part, but given the nature of the injury and the absence of any historical sign of abuse, surely the Father could have taken a more discreet or prudent approach by getting the Mother’s side of the story first before going to the police.

76.  This seems to me all the more so with the 2^nd incident when the Mother had already informed him of the bruise beforehand, and while it is the Father’s evidence that she had never explained the cause of the bruise but merely told him not to fuss about it, a claim denied by her and I agree that it would appear not to make any sense for her to just tell him about the bruise without any explanation given her obvious concern about him making another report to the police.

77.  The Father did give his explanation in his 7^th Affirmation (PB : 370 p24) that he decided to make the 1^st report to the police instead of first taking the matter to the Mother, even though he was aware of what the child would have to go through during the police investigation as warned by his solicitors, because he was concerned that the Mother might get angry and hit the child further.

78.  I find this explanation not entirely convincing. It was never his case that the Mother had throughout their relationship ever abused or mistreated CY, and it has never been so pleaded in any of his affirmations in particularly his 1^st one filed at the institution of these proceedings, hence any notion of CY being abused by her mother could not have been in his mind when he noticed the bruise on her knee on the 1^st occasion. In fact it appears from his said affirmation that he was concerned about the Mother using corporal punishment on the child, and while the unreasonable use of corporal punishment can amount to child abuse, in which case it seems to me all the more questionable of his rush to the police.

79.  Furthermore, his excuse that he was advised by the social worker Ms Wong to report to the police cannot in my view explain away his failure to contact the Mother first, after all, the evidence is that Ms Wong’s advice on the telephone was merely that if he believed it was an abuse, then he should report it to the police. The question arises therefore must be : Did he genuinely suspect child abuse, or was it a deliberate tactical move against the Mother in order to gain an advantage in his claim for custody?

80.  If indeed it was the latter, it shows a total and selfish disregard for his daughter’s welfare, knowing what she would have to endure in the police investigation not just once but twice. If on the other hand it was the former, then he was in my view being too hasty and too callus with such serious allegations against the mother of his child, which can be regarded as a flaw in his decision making process, if not in general, at least on those occasions.

81.  I am inclined to accept that it was a case of wrong judgment call on his part, not just because I have found him to be a caring and loving father who would not deliberately cause any harm to his child, but also because there were indication and in fact evidence that it might be a problem with the character, as demonstrated by the ways he made his decisions on the Mother’s issues over Gloria and of how he terminated his relationship with the Mother, of which he conceded that he could have handled better.

82.  Criticism levelled at decisions to rush into reporting abuse to the police was of course not one-sided, as Ms Irving has submitted that greater concern should be made of the Mother’s report that the Father had touched CY’s breast when giving her a bath during his staying access, which was made only a few weeks after the Father’s 1^st report, and which she argues was not only tit-for-tat by the Mother as she was unable to explain why she had not told the police during their investigation of the Father’s 1^st report, or the social worker either before or afterwards until her own report, but she also suspects that it was her way to put a stop to the Father’s staying access that she so adamantly did not want to take place, and that it would help her with her custody battle.

83.  If indeed these allegations against the Mother were true, no doubt she should be subject to the same criticism for selfish disregard for the welfare of her daughter, but having seen and heard her evidence, I am prepared to accept her explanation that she was initially hesitant that it was an abuse as it was not possible to give the daughter a bath without touching, hence she did not raise it either with the police or the social worker, but later when she mentioned it with her colleagues who were all parents, she was advised to report it to the police to make sure for the sake of her daughter, which of course brings us to the same question : Should she not have brought the matter to the Father first before reporting to the police, a failing of which she is now criticising him for?

84.  There is however in my view clearly an important difference in nature between unreasonable or abusive corporal punishment and sexual abuse, as while the former may be admitted by the guilty parent which can then be discussed with the other parent, the latter will never be admitted by that parent and hence for the other parent it would just be a question of whether to disregard it as not plausible, or to report it to the authority for investigation, and the Mother in this case had chosen the latter action.

85.  One may of course still argue that it was a wrong judgment call on her part to have so readily accepted either her daughter’s words or the advice of her colleagues under the circumstances in which the alleged abuse was said to have taken place, which may not come as a surprise given that she has been described as simple, unassuming and unsophisticated.

86.  All these just go to show one thing which is all too common in this jurisdiction : Parental disputes in particularly those involving small children when emotions run high and any trust has all gone out of the window tend to bring out the worst in the parties, with the slightest hint or sign of any possible wrong doing by either side quickly pounced on without any thinking or regard for any consequences. I believe it is a typical case here with both parties in their rush to alleging child abuse against each other, which on the basis of the evidence before the court do not truly reflect their love and care for their daughter or their parental ability for her in general, and I am prepared to accept that their poor judgments were brought about by a sudden lapse of common sense in the heat of their disputes, which fortunately seems to have returned to relative normalcy with no further major relapses, no doubt the result of some hard soul searching by both parties over what their child had been made to endure by their fighting, as evidenced by their better co-operation and communication over the access arrangements since the last police report of which the Father has subsequently also had the good sense of withdrawing.   

87.  If, as I have found, both parties had been primary carer of CY, and both are about equally capable of taking good care of her, would it then not be right to agree with the view of the social workers that with all things being more or less equal with the parties, that it would be in her best interest for CY, being a girl of tender age, to remain in the general care and control of her mother? Not so according to the Father who argues that as he has been able to make better plan for CY’s education which has the support of the education psychologist, it should therefore tilt the balance in his favour on the question of care and control, which takes me to the next issue : the child’s future schooling.

International School v. Local School

88.  As noted above it has always been the Father’s plan for CY, also a Canadian citizen like himself, to attend the international school curriculum in Hong Kong such as Bradbury School of ESF until she is 14 or 15 to further her studies including tertiary education in Canada, where he himself had been educated and which he says has a very good system to provide students with an all-round education excelling not just in academic but also sound physical and mental development, whereas he finds the system in Hong Kong to have become confusing and losing its direction for the past 10 years.

89.  The Mother on the other hand feels that the local school curriculum would provide the same benefits as the international curriculum but also bi-literacy and tri-lingualism which she believes CY can receive at the Fukien School, as she does not want her to lose the opportunity to learn Chinese, something which the Father was not keen in the past as he would only communicate with CY in English at home. Furthermore, due to her own limited English, she fears that if CY were to attend international school, she would have difficulty understanding or communicating with her school teachers or participating in her school’s functions or meetings.

90.  To assist the court on this issue the parties have jointly obtained an expert report, of which I shall next consider.

Educational Psychologist’s Report

91.  This report (PB : 238), dated 23^rd June 2010, was prepared by Dr. Raymond Tang, an educational psychologist, on the schooling for CY in respect of her current one in the kindergarten and in particularly her forthcoming primary education. In the process of preparing the report, Dr. Tang had met and interviewed both parties as well as CY, with the latter also undertaken certain attention test and cognitive assessment during the evaluation session.

92.  The results of these tests show that CY was functioning cognitively within the average range of intellectual development, which suggests that her verbal and non-verbal abilities as a whole are comparable with her age peers, but Dr. Tang found her abilities to utilize her eye-hand coordination skill and memorizing visual and auditory details as her relative weaknesses, and had this comment on paragraph 40 in his report :

“CY’s attention control is good as according to the computerized attention test and clinical observation. This should enable her to learn effectively in a less structured school environment. On the other hand schools that rely heavily on rote learning might not be suitable for the girl.”

93.  In conclusion Dr. Tang believed that CY would benefit more from attending Bradbury or other school with international curriculum than school with the local curriculum when he said (BP : 243) :

“41. Considering her cognitive profile, the girl should benefit from the Primary Years Programme (PYP). It is an educational programme managed by the International Baccalaureate (IB) for students aged 3 to 11. Bradbury School offers such kind of programme to their students.

42. However two issues should be taken into account before considering placing CY in Bradbury School.

43. Firstly, the language issue. I understand that both CY’ s parents are not native English speakers, although in the past English was mainly used at home. My clinical experience informed me that it often does more harm than good for non-native English-speaking parents to use their secondary language solely to communicate with their children. Sometimes children brought up in this kind of environment will have difficulty expressing their emotion as they do not know the correct words to say it.

44. If CY is to be educated in Bradbury School, it is strongly recommended that she needs to improve her English communication skills. Cantonese/Chinese and English should be used in different settings and mixed mode should be discouraged. It is advised that parents should continue using their native language at home and allow their daughter to develop her second language, English, in her future school.

45. The second issue is there is no guarantee that CY can be admitted to Bradbury School as there is a long waiting list. In fact that school is not the only one in Hong Kong offering PYP programme. Some local school also develop their school curriculum based on the IB philosophy, such as Victoria Shanghai Academy and Po Leung Kuk Choi Kai Yau School. Parents might also consider these schools should CY’s application to Bradbury School is not successful.

46. CY is eager to learn but placing her in a school that mainly emphasize on rote memorizing and repetitive learning is not advisable. The girl’s self-esteem would suffer if she finds that even after spending a lot of time studying she still cannot achieve the school result she expects.”

94.  In reply to questions from Mr Surman for the Mother in court about her concerns of not being able to participate in school’s functions or meetings if CY is to attend Bradbury, Dr Tang said that 70% of students at that school were Chinese, that Chinese was very often the language of the playground, and that many of the staff speak Chinese and are always helpful to parents who do not speak English well.

95.  While the Mother’s English may be limited in particularly as to conversation, I do not think it would cause such a serious barrier to her participation in the school’s functions given the fact that English has always been one of the official languages commonly used in her work at the Education Bureau, and I believe she can always find the motivation to become involved if she wants to, as she seems to have done by enrolling into various classes since these proceedings with an aim to improve her parenting skills and communication with the Father.

96.  Dr Tang however concluded that while he considers the PYP programme and that system of education to be suited to CY, there are many other factors to consider, and one of which I believe of particular relevance but had not been disclosed to him for his consideration either at the time of his report or his testimony : that the Father’s proposal for CY to attend Bradbury is premised on her care and control being given to him. In other words, if care and control goes to the Mother, it would not be his proposal for CY to attend that school.

97.  As the Father has never proffered any explanation, and I do not believe it has anything to do with the problem of transportation as CY would then have to travel from Lam Tin to Happy Valley for Bradbury and back on a daily basis, given his obvious financial means to do so including driving her himself or provide her with a driver, or other alternatives such as school bus, taxi or the MTR, but if he truly believes that Bradbury is best suited for CY, I wonder why he would want to link that with him getting her care and control. Is he saying that if her care and control goes to him, then Bradbury would be best for her, otherwise it would not matter which school she should attend, in which case would it not cause the Mother to question whether such decision was made with his daughter’s best interest in mind?

98.  Furthermore, when Dr Tang prepared his report back in June 2010, CY had not yet been enrolled into the Fukien School and hence he did not have the opportunity to take that school into consideration in his report, although it is true that his purpose was more about whether the local school curriculum or the international school curriculum is more suitable for CY, and while as noted above he seemed to be more inclined towards the latter in her case, it was not a decision entirely without reservation as he has mentioned other factors. Ultimately in my view it should be a decision for the parents to make, preferably jointly, which curriculum or school would be best or most suitable for their child, and that the school factor while relevant should not be decisive on the question of care and control. The schooling of CY does however bring me to another factor which the Father says is in his favour or advantageous, i.e. the time each day which he has for CY while the Mother is at work.

Time available for Child

99.  When CY was attending Woodland before her parents’ separation in January 2010, and Hong Ying thereafter, it would always be in the afternoon, hence it is the Father’s case that if her care and control is given to him, he would be able to spend the entire morning everyday looking after her and teaching her before she goes off to school in the afternoon, which can indeed and certainly be said to be more beneficial to her than to be with the Mother’s helper under her current arrangement.

100.  However, the fact is that when CY starts her primary education in the coming September, whether she goes to Bradbury or any other school proposed by the Father, it will be whole day school rather than just in the afternoon, and in the case of Bradbury, it will mean that she will not be home until after 4 pm, and with the Mother normally returning home from work by 6:30 pm in her case, the advantage that the Father would have in his time available for CY no longer appears as significant as before.

101.  Another advantage said to be of the Father’s proposal is that it is designed to meet CY’s needs and not his own, and that he is offering to forsake his own leisure time with CY to provide her with the best education, and time with her mother on weekends, whereas the Mother’s proposal is said to be designed for her to retain control of the child. His main argument, as I understand it, is that given the various private tuition classes and extracurricular activities the Mother has currently arranged for CY on weekends, her proposal would mean that the parties’ sharing of her time on weekends would be very much restricted, which will however not be the case with his proposal.

102.  When CY enters primary school after this summer, she will no doubt have more school work as well as extracurricular activities, be it under the international or local school curriculum, which bound to compete with her spare time and weekends with her parents, and that will no doubt lessen the difference between the parties’ proposals. Whatever the advantage the Father may have in terms of his time available for CY, it will still have to be balanced against the advantage which the Mother is said to have on the point of status quo.

Status Quo

103.  CY has no doubt settled well under the Mother’s care with the assistance of her helper in the Lam Tin flat since her parents’ separation some 1 ½ years ago, as evidenced by the various reports before me notwithstanding the many incidents in between, but she must also be very familiar with her father’s home in Happy Valley where she was born and raised during the first 4 years of her life, and where she still spends every Wednesday morning as well as weekends and holidays, and there is also no question that she has been able to maintain a very close relationship with Gloria and Grandma as well, hence it can be argued that a return to the Father’s care should not post any adjustment problem for her as is common in other cases of different situations.

104.  On the other hand, while 1 ½ years may not amount much in the life of an adult, to a 5 year old child such as CY it may appear half a life time, and one must not simply brush aside any possibility of resultant adjustment problem if there is another major disruption to her life, in particularly after what she had gone through last year, which in my view makes it all the more relevant to take into account the importance of maintaining status quo, especially one that seems to have been working well, as it does not just mean maintaining the living environment, but more importantly the daily routine arrangements and above all the parental care and bonding under which the child has grown, developed and flourished, and in the case of CY, that has been with the Mother.

105.  I of course do not for a minute suggest that the Father has not played his part, which can be seen from the above has been equally significant, but the reality is that, as stated in R v Y above, I am unable to see any good reason to disturb such well settled arrangements that have been in place for this small child for the past 18 months. Of course, as pointed out by Ms Irving, with the ability of both of these parents to provide a proper home for CY, it really all boils down to the question of how best to divide her time between them that would best meets her needs, and I am convinced, for the reasons aforesaid, and in line with the concept of shared care and control referred to in the judgment of Hartmann JA above, that the answer must be for her to spend most of her weekdays at her mother’s home and under her care, while her weekends and holidays be shared with her father, but before going into these details, there is one final issue that I need to resolve : Whether there should be joint custody between the parties.

Joint Custody

106.  While neither social workers recommended joint custody in their reports, the fact is that it was mainly due lack of cooperation between the parties and that both had rejected it at that time, but later at the hearing one of the workers Ms Wong agreed that an order for joint custody is best for children, and having read the last affirmation of the Father that he proposed joint custody, she believed that it would be a good idea in this case, although it would mean that both parties will have to work at it.

107.  Ms Irving submits that this is one of those cases referred to in SEB v ZX [2007] HKFLR 165 by the learned judge in paragraph 15 when she said :

“Sometimes orders for joint custody are aspirational. They are made in the hope that the parties will be able to work towards co-operating with each other in the future.”

108.  Ms Irving has pointed out that there are no serious conflicts between the parties save for the complaints they have had against each other in the past, that there have been no problems with the execution of access, that there is no large file of solicitor correspondence complaining about one thing or the other between the parties, and that when the parties ran into disagreement, they tend to seek advice from the social worker these days rather than arguing with each other as in the past. I agree, and it appears that the Mother has since become more amenable to that idea when she commented at the hearing that joint custody may work and that she was willing to try to co-operate with the Father in future.

109.  In fact, from what I have seen and heard at the hearing in particularly the latter stage, there is evidence that since the last alleged abuse incident both parties appear to have been able to get past their previous conflicts and ready to move on, and that there are clear signs and indications of a willingness to be more accommodating and cooperating with each other on access and other matters over their daughter. I accept that there is a good likelihood that joint custody will work and that such an order would be appropriate in this case.

Conclusion

110.  For all the reasons aforesaid, I am convinced that it would be in the best interest of CY to remain in the care and control of the Mother in joint custody with the Father, and that the Father shall continue to have the current access on every Wednesday morning and on weekends as well as half of the child’s major school holidays, until the start of her primary school when the Wednesday morning access will obviously have to go, to be replaced perhaps by some arrangement after school with the Father until evening if he so wishes, and I prefer to leave that for now to the parties to work out the details, probably after the child’s new school schedule is in place. I so order accordingly.

111.  Given my order on care and control above, and the Father’s stance on the child’s schooling, I no longer see the need to make any order regarding which school CY should attend for her primary education.

112.  Lastly, on the premises of my various findings and for the reasons set out above, I believe that it would be appropriate not to make any order as to costs in respect of the application for custody care and control, save that the Mother’s own costs to be taxed under the Legal Aid Regulations. I shall next wait for the parties to proceed with the question of the child’s maintenance.