CHOW CHEUNG SUK KING v. CHOW YAN PIU

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JUDGMENT

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Silke, J.A.:

1. Chow Cheung Suk King - "the mother" - and Chow Yan Piu - "the father" - were married on the 13th August 1977. There was born to them, on the 24th November 1979, a son - Ka Fai - and on the 24th January 1983 another son - Ka Ho.

2. Unfortunately differences have arisen between them as to the methods used in the upbringing of the two children. The matrimonial home was shared with other members of the husband's family including the mother-in-law. The mother found that life in such an environment, in particular with her mother-in-law, was difficult.

3. Prior to the 24th February 1984 she had on two occasions left home because of the differences. On the 24th February she left home permanently leaving the children behind her. She continued her interest in the children and visited Ka Fai at the Tack Ching Kindergarten which he was then attending.

4. On the 18th April 1984 the mother initiated proceedings by way of Originating Summons under the Guardianship of Minors Ordinance asking for an order granting her the custody of the minors while permitting access to the father. She also sought a maintenance Order.

5. On the 24th July Power, J. made an interim Order granting custody of the minors to the father until further Order, with access to the mother. He called for a Social Investigation Report under the provisions of section 17 of the Ordinance.

6. On the 23rd October 1984, after a two day hearing Clough, J. awarded custody of the minors to the mother with provision for generous access to the father and with an Order of the payment of maintenance for the children. On the 7th November 1984 he delivered his Reasons for the making of the Orders.

7. The father now appeals against that part of the Order awarding custody to the mother. No issue is taken by either of the parties in relation to the access Order or the Order for maintenance.

8. In his full, detailed reasons it is clear that the Judge gave anxious consideration to the issue before him and to the evidence which he had heard on the matter. He had the benefit of the Social Investigation Report and he heard Mr. Chau, the maker of that Report, in evidence. The Report recommended that the custody be given to the father. In that which he stated he found to be a difficult case, a view with which we are fully sympathetic, the Judge decided not to follow that recommendation.

9. In coming to his conclusion, he was aware that he should, and he did, regard the welfare of the minors as of the first and the paramount consideration. The minors being of the ages of five and one years and one half respectively were too young to express their own wishes in the matter. The material available in the Social Investigation Report was fully considered. He was aware that the claim of the father would not be superior to that of the mother nor the claim of the mother superior to that of the father.

10. It has not been suggested by Miss Siddall, who appeared for the appellant before us, that the Judge in any way misdirected himself upon the law.

11. In the course of those directions he made reference to H. v. H. & C.⁽¹⁾ and to the words of Salmon L.J. where the learned Lord Justice said: :

12. We respectfully agree with that paragraph in the judgment. It sets out one of the basic factors to be taken into consideration by a trial judge placed in the circumstances in which this Judge was.

13. Miss Siddall has placed emphasis upon the expression "all things being equal". 'She does not seek to suggest that the two parents were anything other than good parents and accepts that, as between themselves, they are equal. She does submit that all things are not equal there being certain factors which fall on the father's side of the fence and which indicate that he should have custody.

14. While the trial judge preferred in certain aspects the evidence of the mother to that of the father, in this particular case nothing turns upon the credibility of one or the other. We think that, as far as that goes, we are in as good a position as the trial judge in coming to a decision.

15. It is to the credit of both the parents that they have not introduced that which is so unfortunately common in cases of this kind, a note of acrimony.

16. This matter has given us considerable anxiety. This anxiety is not lessened in any way by our consideration of the very careful and meticulous manner in which the trial judge dealt with the issue. It is a finely balanced case. The Order made necessitates the removal of the two children from the home in which they have been brought up, and the family atmosphere in which they have lived, to a new environment, not one which is strange to them for they have visited the premises in which they would live, but one, nevertheless, which is different in its nature from that which they now inhabit.

17. The matrimonial home is a housing unit in an estate where lives the defendant, his 50 year old mother, his 64 year old father, two of his brothers - and the two children. The premises to which the children would move is a cubicle in a premises rented from a principal tenant who lives in another cubicle upon the same premises. In it lives the mother's mother, herself and, if the Order stands, the two children. The main room of the premises is used as a workshop by the principal tenant who makes paper envelopes such as lai see packets. There is a variable number of employees ranging from ten at the time of the visit by the Social Welfare Officer to four at another time. Work continues each week day from nine o'clock in the morning until eight o'clock in the evening. On Sunday the main room is' available for use, on a shared basis, as a place to entertain visitors. The kitchen and the lavatory attached to the flat are shared with the principal tenant and, presumably, with her workers while they are on the premises.

18. The care and supervision arrangements as between the father and the mother differ somewhat. Ka Fai, the elder boy, presently goes to school on the ground floor of the premises in which the father's housing unit is situated. The paternal grandmother, Madam Li and the grandfather look after the minors while the husband is at work. The grandmother takes Ka Fai to school. The grandfather assists in the cooking of meals.

19. The mother would, of necessity, have to work and it was her proposal that while she was at work the maternal grandmother would for most of the day look after the minors taking Ka Fai to a new school. The grandmother, in her fifties, presently has two jobs one of which she would give up. But she would continue to work for the period five o'clock to eight o'clock in the evening as a casual amah. It would seem from this that there would be the possibility of a period before the mother's work concluded, she said this would be 5:00 p.m., and her return home and the maternal. grandmother's leaving to go to her job. It was suggested that the maternal great grandmother - a woman in her late seventies - would travel from Tuen Mun each day to Wan Chai in order to fill this gap. We do not think this last proposal is a realistic one even though the maternal great grandmother does occasionally come to assist.

20. The trial judge accepted the criticisms which were made in the course of the hearing of the mother's proposed arrangements for supervision of these minor children. But he took the view that:

21. It is certainly of great importance that children so young as these should not be deprived of mother love. There is no doubt that both the father and the mother were loving, caring parents. They are both honest, hardworking people and it is highly unfortunate that the children should be deprived of the constant companionship of either of them.

22. We feel that the trial judge, even with all the care he exercised, underestimated two matters. First of all the disruption in the lives of the two children would, we think, be somewhat greater than he envisaged it to be. It is important for children of this age that status quo ft a loving and caring environment to which they are accustomed should not be disturbed. There is little doubt that this would be disturbed if they were to go to the very confined, comparatively, living quarters of the mother. And second he under-emphasized the nature of the new environment. It is clear that their present home environment is much the more preferable. Further, the arrangements for care and supervision by the father are more certain and more advantageous to the welfare of the children than those of the mother.

23. The parents, as we have said, being equal in their right to custody we differ from the trial judge, with some diffidence, in believing that the interests of the minors would overall be best served in all the circumstances here if they were to remain where they are with the father. They will not be deprived totally of mother care for there can be as generous an access to the mother as she already has. Though we are prepared to hear Counsel on this.

24. We would allow this appeal, reverse the custody Order made and grant custody to the father.

25. Before leaving this tragic case we would express a hope, though we realise the difficulties encountered by both the parents, that they can, at least for the sake of the children, come to some arrangement whereby they can resume cohabitation.

(1)    [1969] 1 All E.R. 262