CHUNG v. CHUNG

THE DISTRICT COURT OF HONG KONG

DIVORCE JURISDICTION

SUIT NO. 281 OF 1991

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JUDGMENT

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1. This is an application for a change of surname in respect of two of the four children of the family. The background to the application can be shortly stated.

2. The applicant, having divorced the respondent, her husband on the ground of unreasonable behaviour in 1991 has since remarried a Mr. Ho on 29 January 1992. The decree absolute was handed down on 5 December 1991. Prior to the grant of the decree absolute, in November 1991 HH Judge Gould ordered that custody of CYY and CYH, both daughters currently aged 12 and 11 respectively be vested in the applicant with reasonable access to the respondent. Custody of the two younger children was granted to the respondent with a corresponding right of access to the applicant. For convenience I shall refer to the applicant and the respondent as the wife and husband respectively.

3. By summons dated 24 July 1995 the wife seeks, inter alia, an order to change the surname of the daughters in her custody from Chung to Ho. In support of her claim she has filed and served an affirmation setting out both the history of the case and the basis for the application. I shall revert to her evidence, the only evidence adduced, in due course. Suffice it to say at this point that the husband has taken no part in these proceedings and filed no evidence whatsoever despite service of the application and supporting evidence upon him.

4. Such applications for change of surnames rarely come before these courts. In consequence the issue of jurisdiction has received scant if any attention in the past. Neither counsel for the wife, Mr. Yuen nor I are aware of the existence of any definitive ruling on the point. In anticipation of the court's concern over jurisdiction, counsel has dealt at length with that issue.

5. He contends that the court is empowered to effect a change of a child's surname under section 19(1) of the Matrimonial Proceedings and Property Ordinance, Cap. 192 - "the MPPO" and alternatively pursuant to the residual jurisdiction conferred under section 10 of the Matrimonial Causes Ordinance, Cap. 179 - "the MCO", it being accepted that there is no express statutory provision that can readily be identified.

6. In respect of section 19(1) of the MPPO, the argument suggests that the court has wide powers to make any orders as it thinks fit for the custody and education of a child in proceedings for divorce, nullity or judicial separation. It is submitted that the provision and in particular the word "custody" should be liberally interpreted as the common law concept of custody conferring a bundle of rights on a custodial parent as described in Hewer v Bryant [1970] 1 QB 357 is pertinent to the exercise of the matrimonial jurisdiction. That being so and it being further contended that the rights of a custodian should include a right to name a child, it follows that the court must by necessity have the power to entertain the application under this provision. There is much force in this view beyond the initial attraction of the argument.

7. The relevant part of section 19(1) of the MPPO provides thus:

"The court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of twenty-one -

8. The jurisdiction over custody and education in the wording of the quoted passage appears to be wide-ranging. The opening words of the section permits the court to "make such order as it thinks fit for the custody and education of any child" under 21. Those words are not delimited in anyway either within the section or against the general framework of the ordinance as a whole.

9. Custody as defined in section 2 of the MPPO includes access. This is not an exhaustive definition on any view nor is it particularly helpful in practice. How then is the word "custody" to be properly construed? In my judgment, concurring with counsel as I do, I am of the view that it connotes more than the concept of physical custody or control. In this regard reference is made to Hewer v Bryant, supra. The facts of the case are not especially relevant. The English court of appeal was concerned with the words "in the custody of a parent" in the context of the Limitation Acts in a suit for damages for personal injuries suffered by a farm-hand at a time when he was aged 15 but financially independent of his parents. A discussion of the meaning of custody appears at page 373 A-C of the judgment. Sachs LJ made this most helpful observation which I propose to set out in extenso:

"In its wider meaning the word "custody" is used as if it were almost the equivalent of "guardianship" in the fullest sense - - whether the guardianship is by nature, by nurture, by testamentary disposition, or by order of a court. (I use the words "fullest sense" because guardianship may be limited to give control only over the person or only over the administration of the assets of an infant.) Adapting the convenient phraseology of counsel, such guardianship embraces a "bundle of rights," or to be more exact, a "bundle of powers," which continue until a male infant attains 21, or a female infant marries. These include power to control education, the choice of religion, and the administration of the infant's property. They include entitlement to veto the issue of a passport and to withhold consent to marriage. They include, also, both the personal power physically to control the infant until the years of discretion and the right (originally only if some property was concerned) to apply to the courts to exercise the powers of the Crown as parens patriae. It is thus clear that somewhat confusingly one of the powers conferred by custody in its wide meaning is custody in its limited meaning, namely, such personal power of physical control as a parent or guardian may have."

10. As can easily be discerned, such powers or rights of custody can readily be extended to encompass the right to name a child and for that matter to change its surname, this privilege being a necessary corollary of parenthood or guardianship. That being so, it must follow that where parents are in disagreement over a proposed change of surname either parent may have recourse to the courts. In my view, section 19(1) of the MPPO confers the requisite jurisdiction to entertain such a dispute.

11. The second and final limb of the jurisdiction argument centred on the construction of section 10 of the MCO is, however, less convincing and persuasive. The section, appearing in Part II of the ordinance, enacts:

"The jurisdiction vested in the court by this Ordinance shall so far as regards procedure, practice and powers of the court be exercised in the manner provided by this Ordinance; and where no special provision is contained in this Ordinance with reference thereto, any such jurisdiction shall be exercised in accordance with the practice, procedure and powers for the time being in force in the High Court of Justice in England with reference to matrimonial proceedings."

12. Counsel invites the court to hold that the word "jurisdiction" refers to the jurisdiction conferred by the preceding sections of that part of the legislation, that is to say, sections 3 to 6 inclusive. As has already been intimated during the course of the hearing, I do not consider that the word should be so restricted in light of the structure of the ordinance and the other provisions in the rest of the enactment. Such an approach is equally not consistent with a natural reading of the provision in question.

13. It is then contended that, albeit custody has not been expressly mentioned in that part of the ordinance it being ancillary to the divorce jurisdiction, the word "jurisdiction" in section 10 of the MCO should therefore be regarded as being used "in the most general sense" to use Mr. Yuen's phraseology in his supplemental written submissions. I confess to having some difficulty accepting this line of argument. In my considered opinion, jurisdiction means no more or less that what the opening words of section 10 means; it is the "jurisdiction vested in the court by this Ordinance" in its various provisions.

14. It is also urged upon me that the word "power" in the phrase "procedure, practice and powers" in the same section being referable to the power of the court in the exercise of its jurisdiction as set out in Part II necessarily implies a power to change surnames, there being no express provision to that effect in the ordinance. The reasoning as I comprehend it seems to be this. Custody being a facet of the divorce jurisdiction involves issues such as the naming of a child. Following from that it is contended that the power to change a child's name is part and parcel of the divorce jurisdiction. As the ordinance is silent as to the power to effect changes of surnames, the need to incorporate the practice, procedure and powers obtaining in England to fill the lacuna arises. By this circuitous route section 13 of the Children Act 1989 is to be given legislative effect in Hong Kong. This contention is as ingenious as it is flawed.

15. The English provision provides that where there is in force a residence order with respect to a child, no person may cause the child to be known by a new surname or remove him from the United Kingdom without the leave of the court or the written consent of every person having parental responsibility. This provision closely echoes the 1974 amendment to the 1973 Matrimonial Causes Rules in England which legislates to a very similar effect. There are no comparable provisions to be found in Hong Kong. One seriously questions whether the legislature here has ever intended to import English legislation in so radical and convoluted a manner.

16. Reverting to section 10 of the MCO, it is plain in my view that what is contemplated is the importation of English practice and procedure where no special provision has been made in the ordinance with reference to the exercise of the court's jurisdiction as enacted. It cannot have been the legislative intention to introduce English jurisdiction in such a fashion. In short, the section does not admit of an interpretation that would introduce jurisdiction where none already exists within the framework of the MCO.

17. A more obvious source of jurisdiction, it would seem, has however been overlooked. I refer to the Guardianship of Minors Ordinance, Cap. 13 - "the GMO". Section 4(2) thereof provides:

"Where a minor's father and mother disagree on any question affecting his welfare, either of them may apply to the court for its direction, and subject to subsection (3) the court may make such order regarding the matters in difference as it may think proper."

18. In my judgment, the plain wording of this subsection patently confers jurisdiction to entertain the instant application for it concerns a matter of difference between the parents touching upon the children's welfare.

19. I turn then to evaluate the merits of the case in light of the principles governing the exercise of the court's discretion to effect a change of surname. These principles may briefly be summarised as including the following considerations, the first and foremost being the paramountcy of the welfare interests of the children: section 3 of the GMO.

20. In W v A [1981] 1 All E R 100, a case very much in point, the following excerpts taken from the judgment of Dunn LJ at page 105 c-h is especially helpful. He remarked:

21. The mere fact that there has been a divorce, that the mother has remarried and obtained custody of the child and has a name different from that of the child are not reasons sufficient to warrant the child's surname: per Cairns LJ in Re WG (1976) 6 Fam Law 210. His lordship further commented that the courts recognise the importance of maintaining a link with the father, unless he has ceased to have an interest in the child or there are some grounds - which makes it undesirable for him to have access to the child at all. It seems reasonably clear as well that custody does not confer a right to unilaterally alter a child's surname and that the factual circumstances attending at the time of the application are to be considered: see Y v Y [1973] Fam 147.

22. The undisputed circumstances of the case disclosed by the wife's sole affirmation are these. Although the wife's remarriage occurred in January 1992, she and the two children in question have been living with her present husband and the children's stepfather, Mr. Ho continuously since December 1991. Shortly after the custody order was made the wife moved the two children to Kwang Fuk Tsuen Government Primary School where they continue to this day to receive their education. It was at that point that the seed of the children's present predicament was sown.

23. In an apparent attempt to avoid embarrassment to the children, the wife took it upon herself to cause her young charges to be known by the surname of Ho in lieu of Chung. This de facto change of surname was achieved after discussion with the school principal who might have been persuaded to accede to the wife's request. Henceforth in the ensuing period of upwards of three years, the children have been addressed and known by their peers and teachers as Ho YY and Ho YH. For practical purposes though not legally speaking, their identities have changed.

24. Not content, however, with merely effecting a change of name at school, the wife went one step further and encouraged her relatives and friends to be as accommodating as the principal and teachers. Despite this, there were occasions when the children were inadvertently addressed by the surname of Chung. When this transpired the wife revealed that she "could see and feel that the said 2 children were very embarrassed and distressed". There was also another time when some tactless and unthinking visitors to the family home openly queried in the presence of the children why they bore a different surname from that of the wife and her second husband. Once more, the children were "extremely embarrassed and distressed".

25. To prevent such incidents recurring, the wife and Mr. Ho applied unsuccessfully to change the girls' surname by deed poll. Not surprisingly, the attempt was thwarted by the Immigration Department.

26. In a little over a year from now the older of the two children would be proceeding to secondary school, to be followed a year later by her younger sibling. Fearing that the academic staff at the future school may be less helpful and obliging in respect of a similar request, the wife made repeated efforts to contact the husband with a view to his agreeing to a change of surname. In this she met with little success as there was no response from him. Eventually she instructed her present solicitors and through them a letter dated 16 August 1994 was sent to the husband to formally enquire if he had any objection to the change of surname. She was not favoured with a reply. It was against this backdrop that the present application was launched.

27. There was no attempt in the affirmation as far as one can perceive to fully explain why it was considered necessary to bring about such a change in surname all those years ago when the children were first enrolled at their present school. Any embarrassment that they might have felt and its effect upon them would, in my view, have been negated or significantly reduced if the wife and her new husband had explained to and assured the children that the difference in their surnames had no impact on their relationship and their love for each other. Children especially young ones require among other things, reassurance and guidance. What their teachers and fellow pupils might or might not have thought or said about the subject was immaterial. Divorces are afterall becoming commonplace and the stigma once so strongly felt by all involved is of less consequence today.

28. Unfortunately the children have gone by their unofficial surname for a considerable time, a situation that the wife has brought about and encouraged. With the effuxion of time, a reversion to the surname of Chung may, it is submitted, cause further embarrassment to the children and expose them to adverse psychological consequences. There is, however, no cogent evidence that a rejection of the application would have the psychological effect upon them as is urged upon me. I am equally not persuaded that the embarrassment which the children have experienced and may continue to experience periodically and which it is said is deeply and acutely felt is such that their welfare interests would be compromised by a refusal of the application.

29. It has been contended that the husband has demonstrated by his indifference to the application and his attitude during access and to the children generally that he has little care and concern for them. The lack of response and participation on the part of the husband as respects these proceedings are neutral matters. There may well be reasons for this reticence other than that offered by the wife. As for his lack of concern for the children, the fact remains that he continues to exercise his right of access from time to time. He has not abandoned his parental responsibility towards them. Turning to the wife, I accept as a fact the stability of her remarriage.

30. If one were to grant the application in terms sought, a situation would be created whereby the children would be legally known by a surname different from their younger siblings', a situation that is hardly satisfactory. The present situation under which they continue to assume their stepfather's surname is equally undesirable. One suspects that this status quo is likely to persist regardless of the outcome of the application. Whilst I accept that a change of surname would not bring about an end to the relationship between the children and the husband as would be the case if there were to be an adoption, after weighing up all matters pertinent to this exercise, I am firmly of the view that the application should be rejected. I so order. The long-term welfare interests of the children do not call for the exercise of my discretion as prayed in the circumstances prevailing at the time of this application.

31. In handing down this judgment, I order that there be no order as to costs, this being in the first instance an order nisi.