A v. Y

FCMP No. 8/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT MISCELLANEOUS PROCEEDINGS NO. 8 OF 2004

----------------------

----------------------

J U D G M E N T

----------------------

1.  There are 2 applications made by the Applicant: for the custody of the child of the family and the removal of the child out of jurisdiction.

Background

2.  The Applicant is a Pakistani national who came to Hong Kong for doing business in mobile phone accessories. The Respondent is a Chinese born in the mainland but migrated to Hong Kong some years ago. The child in question is called N who was born locally out of wedlock. For convenience, I shall call the Applicant “the Father”, the Respondent “the Mother” and the child “N” in this judgment.

3.  It is common ground that it is not the first time for the Father to be in Hong Kong. Back in 1998, the Father did come to Hong Kong once. During his last stay, he was convicted of an offence concerning false documents and he was sentenced accordingly for that offence. The details of that conviction are not material to these applications except that a deportation order was subsequently issued against the Father and he was prohibited from coming to Hong Kong again for life.

4.  At that time, the Father was known by a different name. According to him, in order to have better luck, he changed his name in Pakistan and assumed a new identity before he came to Hong Kong again for business in the year of 2000. 

5.  The Father said when he was served with the deportation order in 1998, the contents of the order was not explained to him despite the fact that he had signed on the said order. Therefore, according to him, he was not aware that he was prohibited from entering the territories again.

6. He came to Hong Kong for a second time in the year of 2000 to continue with his business in mobile phone accessories. During an occasion in late 2002, he met the Mother in the waterfront of Tsimshatsui and they started courtship. After dating for a short period, they got married on 2 January 2003 despite the objection of the Mother’s family.

7. As far as the Mother is concerned, she was born in the city of Zhongshan, Kwangtung Province in the mainland. She migrated to Hong Kong in 2000 and lived with her father and other family members in Shamshuipo, Kowloon.

8. The Mother has been suffering from mental illness since about 1996 for which she has received medical treatment in the mainland. After her arrival in Hong Kong, her mental condition had been stable until her relapse in about March 2003.

9. After marriage, the parties lived in a rented flat in Shamshuipo. The Mother was found pregnant but marriage life has not been harmonious due to cultural differences and communication difficulties.

10. The Mother relapsed into mental illness when she was pregnant for about 4 months. She was admitted to Kwai Chung Hospital for about 5 weeks since March 2003. The Father claimed that the Mother had no mental illness at the time and the whole thing of relapse and hospitalisation was only a sham arranged by the family of the Mother to deceive him.

11.  After the Mother’s discharge from Kwai Chung Hospital, the parties resumed cohabitation for a few months until the Mother gave birth to N on 5 August 2003. A few days after giving birth, the Mother left the Father and returned to her maiden family. The maiden family also moved its address in order to avoid the Father. Having failed to locate the Mother and N, the Father has tried various means to contact them including going to the responsible social worker’s office. Due to the request of the Mother, her whereabout was not revealed to the Father who has eventually made quite a scene at the Social Welfare Office.

12.  Upon a follow-up medical appointment at the Yaumatei

Psychiatric Centre in mid-August 2003, the Mother expressed her frustration and fear towards the Father and requested the Medical Social Worker to arrange proper care for N. Subsequently, N was placed into the care of Po Leung Kuk in which she has remained up to the date of this trial.

13. The Father was granted legal aid and so he took out the present proceedings in order to gain the custody of N. The case came before HH Judge Carlson on 11August 2004 with a Social Investigation Report before him. The report recommended that custody be given to the Mother with reasonable access to the Father. Not being satisfied with the recommendation, the Father requested an international social investigation report be called for so as to allow the court to have a better understanding of his family background in Pakistan. He also requested to take out an application to bring N to Pakistan for her to be raised there. The Father’s request was acceded to and the matter was adjourned for the international social investigation report upon the Father’s undertaking to take out a summons for N’s removal out of jurisdiction.

14. The matters eventually came before me. There was one significant development after the calling of the 1^st social investigation report. During sometime in October 2004, the Father was arrested by the police for the offence of illegal gambling. During police investigation, it was discovered that the Father has breached the previous deportation order which was issued against him in 1998 by coming to Hong Kong using a different name. He was charged and sentenced to an imprisonment term of 15 months. I am told that he is due to be released by 7 August 2005.

Application for Adjournment

15. At the beginning of this trial, the Father has made an application for adjournment saying that he needs legal representation. As a matter of fact, the Father has repeated this application for a number of times during the course of the trial.

16. In considering this application, I notice that the Father was legally aided at the initial stages of the case. He took out the originating summons for the custody of N with the help of a solicitor appointed by the Department of Legal Aid. However, the legal aid certificate was discharged in November 2004 and the Father has acted in person since then.

17. It is my view that between November 2004 and July 2005, the Father had ample opportunities to seek legal representation. If he still wanted to have legal aid, he could appeal against the decision of the Legal Aid Department if legal aid has been unreasonably withdrawn. If he wanted to have private representation, he could also do so without much difficulty. According to him, he was not a person without means. He said his family in Pakistan is quite well to do financially and he even offered $100,000 to the Mother if she would give up the contest for N.

18. At one stage, the Father did mention that he could not seek legal representation because he had been imprisoned. However, I understand that during his imprisonment, both his brother and uncle did pay him visits at the Stanley Prison for a number of times. He could have asked them to assist. Furthermore, by hearing the Father for 4 days in this trial, I do not think the Father is such an ignorant person that he did not know his right to engage private lawyers to represent him in this trial.

19. The application for N’s custody was first taken out in January 2004 which was 18 months ago. N is now placed in Po Leung Kuk pending the outcome of this trial. I do not think it will be in N’s interest if the trial is to be adjourned.

20. The Father’s application for adjournment was refused.

21. I now turn to the law and the merits of the applications.

The Law

22. The law governing the issue of custody during marriage is Section 10 of the Guardianship of Minor Ordinance, Cap 13. The relevant parts of the said section are as follows:

“10.	Orders for custody and maintenance on application of either parent
	(1)	The court may, on the application of either of the parents of a minor (who may apply without next friend) or the Director of Social Welfare, make such order regarding-
		(a)	the custody of the minor; and
		(b)	the right of access to the minor of either of his parents,
		as the court thinks fit having regard to the welfare of the minor and to the conduct and wishes of the parents.
	(2)	-----
	(3)	-----
	(4)	-----     “

23. The same welfare principle is expressed more clearly in Section 3 of the same Ordinance, which is as follows:

“3.	General principles
	(1)	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)	------
		-----------
		-----------    “

24. By reading the 2 sections together, the court in deciding the issue of custody, shall regard the welfare of the child in question as the first and paramount consideration. In so deciding, the court also has to take into consideration the wishes of the child and the recommendations of the Social Investigation Report. Of course, the conduct and wishes of the parents are also relevant but they are always subject to the best interest of the child.                                       

Social Investigation Reports

25. In deciding the merits of these applications, it is convenient to start with the two local and one international social investigation reports. The two local reports were prepared by Miss Mok, the social welfare officer who has conducted a very detailed investigation into the matter. They contain very useful background information concerning both parents and N.

26. The first report was prepared on 29 July 2005. Miss Mok has observed that despite the fact that N was arranged to stay in Po Leung Kuk, the Mother has visited N very often. She was observed to have close and intimate relationship with N and her ability to care for N, sometimes with the help of her own mother (hereinafter called the “Grandmother”) was confirmed.

27. The Father had also visited N at Po Leung Kuk but the frequency of the visits were much less than the Mother. N also felt comfortable with the Father but the ability of the Father to care for N alone was very much doubted. Even for the Father himself, he admitted that he was not quite sure of the routines in baby caring.

28. Miss Mok opined that a parent’s ability in providing daily care with stability and predictability of daily routine is very important to a child of tender age. The Mother was impressed to be a more suitable custodian and so Miss Mok recommended the custody of N be granted to the Mother with reasonable access to the Father.

29. A second social investigation report was prepared shortly before the trial. Of course, by this time, there has already been significant changes to the circumstances of the case. Shortly after the first report, the Father had taken out a second application to remove N to Pakistan to be looked after by his mother and family there. Moreover, the Father was also imprisoned for the offence of breaching a deportation order.

30. In line with her first report, Miss Mok was of the view that stability is very important to the development of a baby and in view of the fact that N was born locally and has close emotional tie with the Mother, Miss Mok maintained her recommendation that the custody of N should be given to the Mother with reasonable access to the Father.

31. In order to assess the suitability of sending N to Pakistan to be raised by the mother of the Father and his other family members, an international social investigation report was called for.

32.  I must say this international social investigation report was prepared in a very casual manner. First of all, it is a hand written report of three and a half pages only. It was prepared by a social welfare officer whose name was not identified at all. The information therein was so brief that it is virtually impossible to have a good understanding of the Father’s family background in Pakistan. The address of the Father’s family is not even mentioned in the report. At the end of the report, it was stated that the Father’s family was in a better position to raise N and the only reason given was N being a Muslim girl. There was no mention of the ages of the Father’s parents. There was no mention of the language ability of the Father’s mother and how she is going to communicate with a grand daughter whom she has never seen in her life except may be in pictures. I am afraid this so called international social investigation report is not helpful at all and I would give very little weight to the recommendation contained therein.

The Mother’s Condition

33. I will now turn to the present conditions of the parties and I will start with the Mother first.

34. The Mother is now aged 30. She was born in the mainland and later migrated to Hong Kong with her family. After her schooling, the Mother used to work as a garment factory worker in the mainland. After her migration to Hong Kong, she has worked in a garment factory and later in a fast food shop. Due to her relapse into mental illness, the Mother has stopped working and is now relying on public assistance.

35. One concern of the Mother’s ability to look after N is her mental condition. At present, she is attending regular treatment. According to Dr. Chan of Yaumatei Psychiatric Centre, the Mother has been suffering from paranoid schizophrenia. Her present drug compliance is satisfactory and her emotional condition is stable. As to her ability to look after N, Dr. Chan confirmed her ability to do so with the assistance of the Grandmother.

36. The Grandmother also gave evidence in court. She confirmed that she is now a permanent resident in Hong Kong and she is willing to assist the Mother in taking care of N.

The Father’s Condition

37. Despite the facts that the Father is now serving a term of imprisonment and he will face deportation after his release, the Father is still insistent on his applications to have the custody of N and to remove her out of Hong Kong to be brought up in Pakistan as a Muslim.  

38. In his evidence, the Father said that the Mother and the Grandmother had cheated him of his money. The Father even alleged that the Grandmother, the Police, the Legal Aid Department, the Social Welfare Department and Dr. Chan of the Yaumatei Psychiatric Centre have all conspired to deceive him and to frame him up. He further expanded by saying that his arrest for an illegal gambling offence was part of this conspiracy in order to take his wife and daughter away from him. He said N was born as a Muslim and so it is natural to bring N back to Pakistan for her to be brought up as a Muslim girl.

The Court’s View

39. As clearly stated above, the Court will have regard to the welfare of the N as the first and paramount consideration. In this regard, I see that N is a girl of very tender age. She is barely 2 years old. Since her birth, she has been looked after by Po Leung Kuk and being brought up in an entirely Chinese environment. I trust that N must be in the process of learning to speak and the language she is learning must be Chinese. I think it will do her no good if she is suddenly brought to an environment in which everyone will speak a totally strange language to her.

40. Although N is presently not under the daily care of the Mother, I am satisfied that the Mother has kept a very close and intimate relationship with N throughout. She is capable of taking good care of N with the help of her mother and other family members.

41. I think it is also natural for N to stay with the Mother. This is not to discriminate against the rights of the Father and I think it is just common sense for a girl of this age to stay with her birth mother provided there is no evidence that she will suffer any harm by doing so. In this regard, I shall refer to the recent judgment of the Court of Appeal in WSM v. FSY (CACV 352/2004, date of judgment: 27 July 2005) in which Cheung JA has the following to say at paragraph 19 of the judgment:

“19. The second son is now about eight years old, reaching nine in about four months’ time. Human wisdom tells us that at this age the mother plays a more prominent role in his upbringing both in terms of his emotional and physical needs…..”

42. On the other hand, what is being proposed by the Father is quite unthinkable as far as N’s welfare is concerned. She is going to be brought to a completely strange place, i.e. Pakistan and taken care by someone whom she has never seen in her life. She will be brought up as a Muslim which is completely different from the life that she has lived for the past 2 years. She will presumably be taught in Urdu or Punjabi and it will not be realistic to expect her to speak Chinese again. As the Father is prohibited from coming to Hong Kong in the future, the chances of her setting foot again in Hong Kong (being her birth place) at least during her childhood is rather slim.

43. Taking all these into consideration, I can only come to one conclusion: it will be in the best interest of N to stay in Hong Kong under the care of the Mother.

Access

44. As far as access is concerned, I am of the view that the Father should be given his right of access to N. However, there is one complication because the Father is subject to a deportation order and so he is not supposed to remain in Hong Kong after his release from prison. As a matter of fact, he would be barred from entering Hong Kong again in the future. There will be a problem in arranging access for him if he cannot come to Hong Kong in person. 

45. Despite all these difficulties, I was still urged by the Father to grant an access order to him. He said he was confident that he would get the necessary approval to come to Hong Kong to see N. Although the Father may be a bit over confident in this matter, I still think it is proper to grant such an access order to him.

Order

46. These are the orders that I will make in respect of the custody and access of N:

(1)	Custody of N be granted to the Mother with reasonable access to the Father;
(2)	The Father’s access to N to be arranged and be exercised in the presence of a Social Welfare Officer;
(3)	There be a supervision order for 12 months;
(4)	Social welfare Officer to submit a progress report in 6 months’ time.

Costs

47. For custody and access disputes, the usual order is for no order as to costs. Therefore, I will grant an order nisi that there be no order as to costs in these applications, which order will be made absolute after the expiry of 14 days from the date of this Judgment. For the Mother’s own costs, there will be an order for Legal Aid taxation.