RWS v. KCC

FCMC 9661 / 2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 9661 OF 2010

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BETWEEN

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J U D G M E N T
(Arrangements for children)

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Introduction

1.  This is an application by a Petitioner mother for sole custody and care and control of the two children of the family, with reasonable access to the father. The father seeks joint custody with shared care and control.

2.  This case is really about communication and decision making. It highlights the difficulties faced by separated couples when they are either unwilling or unable to make decisions pertaining to their children together, whether those decisions are big or small. It also brings into sharp focus the difficulties still encountered by parents and their lawyers with respect to the legal terminology used when discussing arrangements for children and making decisions for them. When this matter first came before me in June 2011 the only issues to be determined were care and control and access, the mother having conceded joint custody. The emphasis was on the children’s day to day timetable, with the father accusing the mother of over scheduling the children. However it soon became clear that there were also other significant areas of disagreement between the parties relating to matters which would more traditionally be described as “custodial” including the appropriate medical treatment for the elder child and the choice of school for the younger. Once this had been identified the case was adjourned in order to enable inter alia a jointly appointed expert to prepare a report “on the best therapy model and academic support going forward for C”, the elder child. In the intervening period the mother issued a summons for interim custody and care and control. She has since confirmed that she is now seeking a final order for sole custody and care and control of the two children. She acknowledges the importance of the father’s role in the children’s lives going forward and says that she will continue to consult him on all issues relating to them; but she seeks an order that would ultimately enable her to make all the decisions about the children in both a timely and sensible manner. 

The issues

3.  The present issues before the court are:

1)  Should custody vest in the sole name of the mother, or should the parties have joint custody of the children?

2)  Which school should the younger child A be sent to in September 2012?

3)  How should the issues surrounding C’s medical needs be resolved? 

4)  How should the day to day arrangements for the two children be determined? And what legal label should they be given?

Background

4.  The parties are both 39 years old and both were born in Hong Kong. Each has spent varying periods of time in the United States. The father was there as a young child whereas the mother went to the States for High School and College. The parties have known each other for a long time and actually met at primary school in Hong Kong.

5.  In September 2003 the parties married in California. The mother works for an investment bank and the father for a private company. They separated in 2009, but continue to live under the same roof. This was then a marriage of approximately 6 years duration. The mother issued a petition for divorce based on mild unreasonable behaviour particulars in July 2010 and a decree nisi was pronounced on the 25 October 2010.

6.  The present applications relate to the two children of the family, C who was born in September 2004 and who is therefore now aged 7 years and A who was born in August 2006 and is now aged 5 years.

7.  Unfortunately C has been diagnosed with a number of developmental difficulties and it seems that the parent’s different approach to handling these has been a major factor in the breakdown of their marriage. A number of reports have been filed with respect to C and suffice it to say that he has historically had difficulty with gross motor skills, vision, speech and flat feet.

8.  The mother’s approach to this has been to proactively seek advice and support and to enrol C in a number of activities that are designed to assist him, such as occupational therapy and tuition for homework. Given that she works full time, this of necessity means that she relies on a number of different providers who either come to the home or to whom C goes.

9.  Likewise A, who is described as being very bright and with no real issues at all, has a number of scheduled after school activities. Like her elder brother she also suffers from flat feet.

10.  The father says in essence that this is all too much for C and that he is often tired and stressed as a result. He would like the after school schedule to be significantly reduced.   

11.  In addition the parties were unable to agree initially on which school A should attend and the appropriate medical treatment for C who suffers from febrile seizures.

12.  At present both children attend what might be described as a good but not overly prestigious local school. It is anticipated that C will continue there for the time being, although the mother acknowledged that this was being continually reviewed. There is a particular issue with respect to speech therapy and the language in which C should receive that therapy going forward. There is a possibility that he might be moved to an international school environment in due course. A has been offered a place at a more prestigious local school. It is the same school that both parents initially attended and where they first met as children. Competition for such school places is fierce. The father had initially wanted A to remain at her present school, whereas the mother wished her to take up the offer at the new school. It seems that this issue may now have been resolved and that A will, by agreement, start the new more prestigious school in September 2012.

The law in Hong Kong

13.  The issue of the appropriate legal terminology to be used with respect to children was addressed in the recent Court of Appeal decision PD v KWW, Civil Appeal No 188 of 2008, 9 June 2010. In that case the Hon Mr Justice Hartmann, JA, said as follows:

 The concepts of ‘custody’ and ‘care and control’

28.  As our law has developed and now presently stands, when a marriage breaks down and the court must ensure the best interests of any child of the union, it will invariably do so by bringing into play the dual concepts of ‘custody’ – whether it be sole or joint custody – and ‘care and control’.  Neither concept, however, is defined in our statute books.

29.  Regrettably, empirical evidence suggests that there is a large measure of misunderstanding as to the nature and extent of the two concepts, certainly among lay persons.

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.

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 ‘wins’ 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.

…

Hartman JA went on to say that

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-custodial 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 custodial parent has a right to take all the decisions about the education of the children in spite of the disagreements of the other parent. That 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’s 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 o f 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.  In summary, an order of sole custody does no more than add a qualification to the otherwise joint endeavour of both parents in raising their child, that qualification being that the final decision will rest with one parent.

41.  For this reason it is often said that there is a thin line between sole custody and joint custody.

He concluded

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.

14.  Counsel for the parties have also referred me to a number of other cases, to which I may refer in the body of the judgment as required. However neither referred to me to the case of H v H CACV No 42 of 2002, which seems to me may be of some importance in the context of this particular case. In that case the Court of Appeal upheld an order for “shared care”, made by Hartmann J as he then was, commenting as it did that

The expression ‘care’, however it is used in these orders shall mean care and control and shall mean that the child shall stay with the parent into whose care and control she has been given”. And later

As to custody, care and control:

(1)  Custody of the child shall be vested in the father. The mother shall have no rights of custody.

(2)  Care of the child shall be shared between the father and the mother. This shall be done in the following manner:

15.  The Judge then set out in detail how that care was to be shared. There was no order for access per. The parties were effectively splitting the child’s time in the way set out in the order.

The father’s case

16.  The father’s case in a nut shell is that he is not listened to. He says that he voices his concerns but that in the event that the mother does not agree with what he says that he is ignored. He asks for an order for joint custody on an aspirational premise. (See inter alia SEB v ZX (Custody) 165 [2007] HKFLR) He says that that would force the parties to try to reach a compromise on issues on which they are not in agreement. He cites with approval the agreement reached between the parties outside court in June which governed arrangements for the children during the adjournment including arrangements over the summer holidays. He said that he felt listened to during the negotiation process and that the resulting court order was a compromise which was ultimately in the best interests of the children.  During the trial he tried to distance himself from the correspondence and affidavits which evidenced high levels of ongoing disagreement on nearly every aspect of the children’s lives. He also tried to distance himself from the rather unfortunate tone used by him and his lawyers in some of those documents especially in their more confrontational aspects.

17.  In so far as the children’s day to day timetable is concerned, he remains convinced that the children are over scheduled and that this is not in their best interests. He initially asked for joint custody and shared care whereby the children split their time between two households on a more or less equal basis. The father’s original proposals going into the trial were set out at paragraph 55 – 58 of his affirmation dated the 16 May 2011 in which he says as follows:    

55.  I would like a timetable which identifies that the children live with me in my home on the basis of 4 days/overnight stays in Week 1 and 3 days/overnight stays in Week 2.  I believe that this can be structured so that Week 1 includes a long weekend…. 

56.  I would like the opportunity for us to share the children’s school holidays equally as follows:

(a)  alternate single public holidays with the allocation as far as possible to align with the weekend that the children spend with each of us if the public holiday falls either side of that weekend.

(b)  on an alternate year basis, the first half and then in the next year the second half of the summer holidays, unless otherwise agreed.

(c)  on an alternate year basis, the Easter, Christmas and Chinese New Year holidays – the exact details for forthcoming major holidays were set out in my solicitor’s letter of 6^th January 2011.

(d)  Also for holidays, I agree that either of us may take 1-2 additional days off school if required, (and of course according to the school’s own rules), but anything more than 2 days, should be by prior written agreement by both parents.

57.  Finally, I believe it would be helpful for us to agree very specifically on the rights and obligations each of us have towards our children when they are in our respective homes and under our care.  This way, there will be no further misunderstandings of the ability of each of us to parent our children in a way which benefits them and does not interfere unduly with the other parent.

58.  My objective is for the court to make an order reflecting my concerns as set out above so that my proposals are defined enabling the children to have the benefit of our respective parenting skills in a balance, calm and structured environment.  This is, I believe, how our children will fulfil their development potentials.

18.  It is not exactly clear how the father’s objectives in paragraphs 57 and 58 might be achieved.

19.  In his closing the father put forward rather different proposals as follows:

63.  Over every 4 weeks, for the 1^st and 3^rd week, for C and A to be with the Father from after school on Thursday until Monday morning (the Father to take Children to school).

64.  2^nd week C to be with the Father from after school Wednesday to school on Friday.

65.  4^th Week A to be with the Father from after school Wednesday to school on Friday.

66.  The objective of the proposal is to give both Children significant time with each Parent together and the benefit of individual time with each Parent and reduce the amount of movement compared with the Father’s previous proposal [P6/1693]. …

68.  So far as tutoring for homework C’s OT and other extracurricular activities the Father agrees in principle that part of such activities can be during the Children’s time with him.

69.  The Father proposes the following when the Children are with him:

(1)  One OT/speech therapy on his long weekend

(2)  On OT/speech therapy session when C is with him, without A

(3)  One tutor session for each of the Children on his long weekend

(4)  One tutor session for each Child on the individual time i.e. when only one Child is with him

70.  So far as extracurricular activities such as tennis, swimming and art (if any) these can be decided by the parent with whom the Children are residing from time to time.

20.  He seeks an order for joint custody and shared care or alternatively 

72.  Option 2

  An order similar to SEB v ZX [2007] HKFLR 165 where one party is granted sole custody with shared care and control to both parents to ensure ‘checks and balances’ to protect the integrity of parallel parenting.

21.  In so far as the major decisions are concerned the father initially wished A to go to the same school as C. As I have said it seems that this aspect of the case has now have been agreed. When asked whether or not he wished me to make a decision about C’s medical treatment he asked that that aspect of the case be adjourned.

22.  In so far as the structure of any order is concerned the father seems accepting of the concept of parallel parenting and his counsel referred to a case from Canada in which parallel parenting is referred (see CM v RP 2010 NSSC (Supreme Court of Nova Scotia). My difficulty however in relying on the case in question is that I do not know what is meant in Nova Scotia by the terms joint and sole custody. It may not be the same as the meaning ascribed to those terms in Hong Kong. I have also noted the reference to parenting plans, which have no standing at present in our own system. It is certainly not open to me to make a “parallel parenting order” as such. Having said that it seems to me that parallel parenting is a very useful concept and certainly one that parents in situations such as this could usefully adopt. 

The mother’s case

23.  The mother says that she consults the father on important decisions about the children’s lives but that they are unable to reach agreement on almost anything. She appears extremely frustrated, I think understandably, by the fact that the parties have become deadlocked and that progress only appears possible by virtue of the litigation process. In particular she initially asked that the court intervene in relation to the choice of schools for A. The mother’s view has always been that if possible A should attend one of Hong Kong’s more prestigious local schools.

24.  In addition she wishes the court to make a decision with respect to medical treatment for C. By the time this matter came on for trial she had consulted three different medical experts in relation to the febrile seizures suffered by C. All three recommend a course of medication – although the choice of medication differed. The father disagreed with putting the son on medication but had no medical opinion to support what he said. He preferred a wait and see approach. I allowed the parties to seek the advice from one more expert on this point. It seems to me however than a decision on this must be made and cannot be left in abeyance indefinitely.

25.  The mother seeks an order for sole custody, whilst acknowledging that the father has the right to be consulted and ultimately to challenge her decisions in court. However she wishes to be able to make any necessary decisions relating to the children as the need occurs and without necessarily being required to obtain the father’s consent in advance of that decision being made.

26.  The mother believes that the children’s schedule is necessary – especially given C’s special needs. She is concerned that all possible support is given to C, to enable him to thrive both academically and socially. He did well in his midterm exams obtaining A’s and B’s in most subjects. In order to continue she believes that it is important that the children be based at one home. As I have said she clearly acknowledges the importance of the father in the children’s lives going forward and suggests that staying access take place once separate households have been established from Thursday after school until Friday morning, with the father taking the children to school and on alternate weekends from Saturday morning - Sunday evening. Until separate households are established she suggests that the father continue to have access on Thursday’s after school until bedtime. The parties appear to be largely in agreement about the division of the school holidays.

27.  In her closing submission the mother supplemented her initial proposal with the offer of additional access to A for the period from now until she starts her new school in September, from 12:15 until her afternoon activity at 3 pm. This would enable A to have lunch with her father.      

28.  With respect to the father’s revised proposal where the children are split for part of the time for two weeks of the month Counsel for the mother has said as follows in her Reply:

10.   Another matter that has now been raised in the Father’s submissions is his proposal for the care arrangements of the children.  Unfortunately this proposal was not raised in Court so the Mother has not had the opportunity to comment on it, nor was the Father cross-examined on it.

11.   Rather unusually he is proposing that for some of their time with him, the children are split.  What he is suggesting is that every 2^nd and every 4^th week, the children are split from Wednesday to Friday, and that in the 2^nd week C is with him and A with the Mother, and the 4^th week A is with him and C with the Mother.

12.   The Mother is very much opposed to this and says that to separate the children for 2 weeks for the month, i.e. C being with his Father during week 2 and A week 4 is not in the best interests of the children and would be extremely detrimental to their development of family life, the companionship and support that C and A give each other is critical in both their emotional and social well-being.

13.   When both parties are at work it is untenable to have the 2 children apart from each other in 2 separate households.

14.   It is a strange proposal when the cornerstone of the Father’s objection to [the new school] appeared to be the mutual support the siblings give to each other. Yet, at a time when they are adjusting to their parents living apart, which will occur in the not too distant future, he proposes separating them for substantial periods of time.

15.   Also, given that the children are going to be going to different schools, it is important for them to be able to spend time at home together to nurture a close relationship and provide mutual support for each other.  The Father’s proposal to separate them every other week goes against that principle which he claimed to be critical when discussing future schooling for A.  It appears to be a proposal that is geared towards the Father’s wish rather than the children’s interests.

16.   The Mother’s comment is that in addition C and A will need each other more than ever as they learn to adapt to their new family circumstances and need to know that they are treated equally and not taken on different outings, etc than their sibling with their Father.  Children are very sensitive and she would be concerned that when they get to do different activities they will perceive one as favoured over the other – while not intentional, she thinks there is a significant risk of this.

17.   In particular, she says that all children and particularly C needs structure and continuity to create an environment where they feel safe to grow and develop.  The access schedule she has proposed allows them to develop a strong relationship with their Father and provides them with the stability they require.

18.   A further criticism of the Father’s proposal is that the Mother never has a full weekend with both children.  However, even if this were rectified, his proposal is not accepted and is not in the interests of the children.

29.  In so far as parallel parenting is concerned she makes the point that

21.   …. The reference to paralled parenting as put to the Mother in cross examination was not in relation to a system of shared care because neither parent was capable of assuming the responsibility for sole custody, as in C.M. v R.P. but was acknowledgment by her that there will be different rules in the Father’s home than in hers.  It cannot be extrapolated from that that she was in agreement to “a parallel parenting order” of the type that is now being proposed, nor that there was any acknowledgment that such an order was merited or in the children’s interests.  The reference to the Mother accepting “the appropriateness of parallel parenting” in paragraph 40 of the Father’s submissions must therefore be put in its proper context and not be said to mean something that she did not mean.

30.  Thus it seems that the mother acknowledged the advantages of parallel parenting in that there will be different rules and ways of doing things in each household – reflective perhaps of each parents very different personality.

31.  In so far as the structure of the order is concerned the wife seeks a traditional order for sole custody and care and control with defined access to the father. Commenting on the suggestion that there might, in the alternative be an order for sole custody and shared care counsel comments as follows:

37.   The Father asks for an order similar to SEB v ZX if one party is given sole custody “to ensure “checks and balances” to protect the integrity of parallel parenting” [§72].

38.   It is submitted that in this situation, such an order would not be appropriate.

39.   “Parallel parenting” as it applies in this case means only that day-to-day domestic decisions are made by the parent with whom the child is at the time.  What to eat, what to wear, feeding and watering.  There is no “integrity” to protect; there would be an order for custody, care and control with access, with the understanding that while the children are on access with their Father, he feeds and waters them.  He would of course be at liberty to spend his time with them as he pleases, but with the hope that he would recognise the importance of the children’s, and particularly C’s, therapies and support classes, and facilitate and participate in them.

40.   To put in place a structure where the classes and supports would or could be disturbed would not be in C’s best interests and would not provide the stable and predictable environment he needs.

41.   Holidays have been agreed in principle as 50-50 over the summer with other holidays alternating.  The Mother prefers the second part of summer so she can settle the children before the start of school.  However, should the father have the second part, she asks for the children to be back 3 days ahead of the start of term.

42.   The schools have orientation before the start proper of the term, as C had in [his present school] in September.  The Mother would like time to be allowed by the parties, out of the overall holiday total, for the children to attend any such orientation days.

43.   The Mother asks for an Order that the children are returned at 8pm after access, although if her structure is accepted, that would be really only be public holidays or at the end of holidays, since otherwise the Father would take the children directly to school after his regular access.  It is regrettable that the Father would not agree to this when asked earlier.

Parallel Parenting

32.  In considering the concept of parallel parenting I have been assisted by the following discussion in an article entitled Cooperative Parenting or Parallel Parenting by Philip M Stahl Phd who said as follows:

In this style of parenting, both of you will each learn to parent your child effectively, doing the best job each of you can do during the time you are with your child. You will continue to disengage from the other parent so that conflicts are avoided.  If you determine that you cannot cooperatively parent because your level of conflict is moderate or high, disengagement and parallel parenting is the necessary style of parenting.

Parallel parenting gets its name from a similar concept in children’s play.  Research psychologists have observed that young children who play together, but do not have the skills to interact, engage in a process of parallel play. If they are in a sandbox together or taking turns going down a side, they play next to one another, not with one another.  Each child is doing her own thing with the toys, and generally ignoring the other.  When they get older, they will learn to interact cooperatively and play together.

Similarly, parallel parenting is a process of parenting next to one another because you are unable to parent together.  Before you can learn to co-parent, you will each learn to parent on your own. The first step of parallel parenting is disengagement. This means that you will not communicable about minor things regarding your child. You will not bicker over things that have always led to conflicts in the past. You will give the other parent important information about your child, but you will not get into debates about the parenting plan or about each other’s parenting style.

…

Another step in parallel parenting is not telling the other parent how to parent, and ignoring (rather than arguing back) when the other parent tries to tell you how to parent.  Support different styles of parenting in order to avoid conflict. 

The evidence

33.  I must now turn to consider the issues, the law and the parties evidence as set out in the parties affirmations and as given orally by them during the hearing.  For the avoidance of doubt, in so far as the matters set out in this judgment differ from the evidence of the father or mother, or one of the other witnesses, that is because I have preferred the evidence of the other party or because I do not find the evidence given credible, or because I consider that the documents produced confirmed my findings of fact.  In addition I have had the opportunity to observe the demeanor of the parties while they gave evidence in court.

34.  I heard evidence from the father and the mother, the social welfare officer and Dr B.

Reports

Dr B’s Psychologist’s report

35.  Dr B provided a very useful report on C and also attended court to give evidence. She was a jointly appointed expert. In summary she says as follows:

9.  … C has average nonverbal intelligence but below average verbal intelligence. His working memory (which might be thought of as “short term memory plus processing”) is extremely erratic, ranging from below average to average. Working Memory is very much associated with attention.)  He processing speed is fast when handwriting is not involved, but slows considerably when handwriting is required.  He is somewhat stronger in expressive language than receptive language: His expressive vocabulary and word fluency are in the average range, but he had significant difficulty with listening comprehension (scoring at the 8^th percentile).  His academic skills are quite delayed, both in reading and math, and his handwriting is slow.  His mother reports that he is easily frustrated and sometimes disruptive. His teacher states that he is distracted and disorganized, makes many careless errors, and takes a long time to complete assignments.

10.   As a result of the findings of this assessment, C was diagnosed with Mixed Receptive-Expressive Language Disorder, Attention Deficit/Hyperactivity Disorder, and mild Dysgraphia (difficulty with handwriting). A diagnosis of specific learning disorders related to academic skills was deferred until these primary difficulties are addressed.  It should also be noted that these difficulties exacerbate each other:  It is difficult to pay attention if one does not understand what is being said, and it is difficult to understand what is said if one is not paying attention.

11.   As a result of this assessment, it is recommended that C work in a fun and nonstressful environment with a Speech and Language Pathologist to increase his receptive and expressive language skills. A program of approximately one to three hours per week should focus on pragmatic (social) language, receptive language, and social interaction.

12.   Because C tires easily, he should never have more than twoconsecutive hours of therapeutic/academic programming.  It is not necessary that these occur daily.

36.  She also makes very pertinent observations with respect to the parents. For example she says at paragraph 14 and again at paragraph 19 as follows:

14.   The first major problem that presents is that the parents have very different parenting styles and very different reactions to C’s early developmental difficulties.

…

19.   It is vital to understand that both parents are correct.  C does need both therapy and free time.  Too much therapy will be unproductive (or negative), and other extra-curricular activities, including leisure and play time, are extremely valuable for C’s overall mental and physical wellbeing.  On the other hand, early intervention with appropriate therapies is likely to have a significant effect on C’s areas of difficulty and may preclude much more pervasive problems in the future.  Both are important.

37.  Dr B seems to recognise the need for a parallel parenting approach saying at paragraph 26 and 27 that

26.   Finally, it is very important that the parents create and agree upon clear boundaries regarding the two separate houses.... They will have different rules and different styles. Children typically adjust to these differences quite well and understand them to exist, but this becomes extremely difficult if there is “blurring” of the boundaries between the houses or criticism of the other parent’s style.

27.   Both parents are encouraged to create their own living environment and to be honest but supportive about their differences of opinion. For example, [the father] might say, “Yes, it is true that your mother does not allow you to drink water during meals, and here you are allowed to.  We don’t agree on that. But she’s your mom, and she has her rules because she loves you. You are lucky that you have both, and when you grow up you might agree with her or with me.  I would be upset if you did not obey her rules at her house, just as she would be upset if you did not obey my rules.”

38.  She recommends as follows:

22.   It is strongly recommended that any important assessments, medical appointments, or therapeutic interventions (as well as school functions) be communicated by email at least two weeks before they are to take place.

23.   In cases in which he feels he has doubts or questions, given ample notice, [the father] is encouraged to arrange a separate appointment to speak with the person conducting the assessment or recommending a procedure.  This will allow him to be an informed part of the process rather than feeling that interventions have been conducted without his knowledge or consent.

24.   The third important point is that the parents are encouraged to work with the school to initiate some of the accommodations recommended in the psychoeducational report and, if possible, to allow some of the therapy (such as Speech or Occupational Therapy) to occur there.  C is at school for six or seven hours per day.  An additional two hours after school takes up almost all of his spare time, at a time when he is already fatigued.  It would be optimal if some of these interventions could take place during C’s “work day” so that his after-hours could be spent on an age-appropriate amount of homework and leisure time.

39.  Specifically she said that

RECOMMENDATIONS FOR HOME

·   C would benefit from intensive work with a Speech and Language Pathologist to increase his receptive and expressive language skills. A program of approximately three hours per week should focus on pragmatic (social) language, receptive language and social interaction.

·   C might also benefit from working with an Occupational Therapist to improve his grapho-motor functioning (developing hand strength and automaticity) and possibly a more pervasive general apraxia.

·   C should continue to be enrolled in outside extracurricular activities that he enjoys and that allow him to develop a sense of self-esteem and achievement and outside of the classroom. Programs of this sort are sports programs, scouts, or outside classes in activities such as art, music or martial arts. As he is particularly good at nonverbal reasoning, C would probably enjoy classes provided by the Children’s Technology Workshop (www.ctworkshop.com.hk). Because they are important in developing self-esteem, confidence and social skills, these activities should never be used as “trades” for school performance and should always be viewed as separate, equally important activities.

·   C would likely benefit from the FRIENDS program, designed to enhance emotional coping and resilience in children.  More information can be made available through Etal Ltd or through The B Family Development Center. This may be particularly helpful as C’s parents are currently undergoing a divorce.

·   When choosing extracurricular activities, C should be given choice, and much care should be taken that he is not over-scheduled.

·   Under no circumstances should C spend more than two hours of his after-school time on therapy-related tasks, as he is easily fatigued and further work after this point will be unproductive (or, in fact, potentially negative).  Similarly, while weekend activities might involve one or two therapy hours, other non-therapy related extra-curricular activities or leisure time should also be valued as important to C’s overall mental and physical wellbeing.

·   C’s parents are encouraged to work with his teachers to arrange modified assignments that will not take up all of C’s leisure time.  Care should be taken to adjust both the quantity and content of C’s homework assignments so that he spends an age-appropriate amount of time doing homework that is at his own level.

·   Similarly, with proper differentiation at school, it is not recommended that C spend additional time at home working with tutors on academic subjects.

·   Because his reading, level is below his intellectual ability, books that are at C’s reading level may be less stimulating for him than books written for older readers.  C’s parents may enjoy reading aloud and discussing books or articles that are a bit above his reading level.

·   Alternately, C may enjoy listening to books online in an interactive reading program such as Starfall (www.starfall.com) or Seussville (http://www.seussville.com/). If he has access to an ipod or iphone, applications that are particularly good include BrightKnight Kingdom, The Cat in the Hat, or Rabbit and Turtle’s Amazing Race.

·   C’s parents should help him to develop a strategy-seeking attitude for completion of tasks that are particularly problematic for him (i.e., those that require handwriting or are boring, repetitive, or not in his area of interest), as well as for problems with losing or forgetting items.  If he finds that one strategy did not work, he should try to develop another strategy rather than giving up or feeling inadequate.

40.  Dr B confirmed during the trial that the above list of recommendations was a “wish list” and that it would not be possible or even desirable for all of her suggestions to be implemented. Both parties seemed to be in broad agreement with the recommendations made, although understandably the mother was concerned about the viability of being able to implement some of them in a local school environment. The mother accepts in particular that C should not have more than two hours per day scheduled on after school therapy related tasks. She pointed out that that was infact the case now. It was not clear to me whether she accepted that three hours of occupational therapy per week may not be necessary. In so far as the tutors are concerned the mother reaffirmed that they assist the children with their homework and this is not “extra” work. Dr B said that the assistance of tutors as opposed to parental involvement was often helpful – especially when both parents, as here, were working. She also confirmed that C may not need an additional three hours of speech therapy (the initial recommendation was 1 – 3 hours) and that the parties would need to decide the language in which this therapy should be given.     

The Social Welfare Report

41.  Two social welfare reports were filed in this case, the first dated the 20 December 2010 was directed to be without recommendations, in the hope that the parties would be able to resolve their differences without recourse to the court. On the premise that the parties had also at that time agreed joint custody the report said as follows:

Viewing that though the parents had discrepancy in parenting, they both aimed at the best interest of the children.  It was more desirable that the parents could put aside their grievances in the marriage and recognize the effort of each other on the development of the children.  It was only under the co-operation of both parents, the children could continue to be healthy and cheerful despite the break down of the marriage of the parents.

42.  In other words the social welfare officer was hopeful that these parents would be able to cooperatively co parent. Unfortunately this was not to be and on the 16 May 2011 a second report was filed. In making her recommendations, again on the understanding that joint custody was agreed, the social welfare officer said:

Remarks and Recommendation

12.   Regarding the issue of care and control, the mother was eager to obtain the sole care and control of the children as she found it difficult to communicate and compromise with the father in the child care arrangement and parenting.  She felt that joint care and control would only disturb the children’s daily routine.  On the other hand, the father believed that only when he obtained the equal share with the mother on the care and control of the children, he could provide the children to have a more balanced life on their studies and leisure.

13.   In the present investigation, although the parents continued to show their disagreement towards each other on the arrangement of the children’s daily schedule, they both tried not to caused adverse impact on them and minimize unnecessary disturbance to them to enjoy a healthy and normal living.  It was reflected in the children’s interaction with both parents.  They were cheerful and enjoyed the time with either parent.  It could not be denied that C’s special training needs had to be met and more effort had to be paid to enhance his development. However, no matter C or A, a balanced life with time of relax and leisure was also necessary and desirable.  As both parents were ready to work out a consensus on the daily schedule of the children so as to maintain the continuity and consistency of care in their living while both parents were assessed to be caring and loving to the children and had their strength in different areas, it was desirable that the children could be nurtured by both parents in their upbringing. It was sure that the children could gain the maximum benefit and grow up to be a cheerful and confident child only when they found both parents still co-operated with each other and worked for their best interest even after the parents’ divorce.

14.   When considering the children’s developmental needs, both parents’ abilities to render proper care and supervision to the children, their loving and caring attitude towards the children, their readiness to work out a plan on the child care arrangement for the best interest of the two children, I would like to recommend that the care and control of the children of the family, namely C and A be jointly granted to the Petitioner mother, and the Respondent father.

43.  I should add that the social welfare officer gave evidence on the first day of the trial on the 14 June 2011. An updated report was not requested and she did not have an opportunity to comment further on the issue of sole versus joint custody.

44.  Recommendations made to the court in social welfare reports although not binding are generally considered to be persuasive. I have found this report useful and have considered it fully when coming to a final decision. I have also attached a great deal of weight to the report prepared by Dr B.     

Should custody vest in the sole name of the mother, or should the parties have joint custody of the children?

45.  I should say at the outset that in many ways I consider these children to be very fortunate. They have two parents who are clearly committed to them and who wish to do what they consider to be in their best interest.  Thankfully that is not the issue here. Rather the issue is really about decision making power i.e. how should decisions pertaining to these particular children be made going forward given their needs and their parent’s proven track record in this area. Should that decision making power initially vest in one or both of the parents? In considering this both parties have referred to a number of problems/issues encountered by them in the more recent past. The father’s case seems to be that given that most of these issues have now or will be shortly resolved, partly by virtue of this judgment, that there is no reason why a joint custody order should not work. The difficulty with that of course is that as the mother says, this does not address the very likely possibility that the parties will encounter problems/issues in the future upon which they are unable to agree. Understandably she does not wish to return to court any more frequently than is absolutely necessary. Given that I think it is important to look at the parties’ recent history when considering the most appropriate order to be made now.

Character of the parties

46.  In the witness box the mother came over as a bright, articulate and intelligent woman, who when confronted by a problem, would do all in her power to try to solve it. I have no doubt that having a child with C’s problems has been an enormous shock to her. I also have no doubt, as suggested by Dr B, that both parents have probably been through their own grieving process as they sought to come to terms in their own way with C’s difficulties. The mother says that she is outspoken and organised. I accept that to be the case. I am also of the view that she is undoubtedly a very good Mom.

47.  The father in contrast was much more laid back. By his own admission he does not tend to take the lead. He said that he found giving evidence very difficult. However he also holds very strong views about how best to parent the children. The mother says that he is stubborn – I have no doubt that that is also probably correct. I also have no doubt at all that he is a very good Dad.

Generally

48.  In so far as the children are concerned it seems that the mother’s approach to assisting C was to research into the various issues, to seek expert advice as necessary and then to try to act upon the advice given. There are many reports on the court file with respect to various assessments undertaken on C throughout his childhood to date. At various times C has been recommended to have occupational therapy and other assistance with his school work. There are ongoing issues as have been identified by Dr B. The result is that C has occupational therapy several times per week and regular support with his homework. Somewhat surprisingly in the circumstances he is also having extra mandarin lessons. Previously he had swimming lessons also. As an outsider looking in, it seems that the mother’s approach is extremely proactive and structured. I have no doubt that historically she has been the one in charge of most aspects of the children’s lives.  

49.  The father in contrast was described at one point as a “Zoo Dad”. He did not object to that description in the witness box and is perhaps at the other end of the spectrum when it comes to his approach to parenting. He wants the children to have time to be children, to play and not to be over scheduled. He objects to C spending so much time at occupational therapy and does not accept the need for tutors to assist the children with their homework. He originally wanted the after school programme to be cut down significantly.

50.  The difficulty with the father’s approach is that it does not acknowledge that while the mother’s schedule may be a little extreme that C, who does have significant problems, has made very real progress. In so far as A is concerned, it is also not, in my experience unusual for young children to have fairly extensive after school programmes in place, especially when it is anticipated that they will go on to one of the more prestigious local schools.   

The eye operation  

51.  In December 2010 C underwent surgery. In laymen’s terms this was primarily to correct a squint. In keeping with her normal approach the mother sought advice from three doctors, all of whom advised her to proceed with the surgery.

52.  The father’s case is that he never agreed to the surgery. The mother says that he never did anything to clearly oppose it. On the morning of the surgery the father sent the mother a text/e-mail from his blackberry. This was after C had been wheeled down to surgery. Both parents had accompanied C to the hospital and both had been present when the procedure had been explained to them. The text said as follows:

You have just informed me this morning in the hospital that your lawyer told you that my silence means consent to the eye surgery today, I have told you many times verbally before that I don’t not agree with the eye surgery, there are risks and C is still in early developmental stage and thing may be very different when he grows up. The surgery has not happened yet, and you will get this email before it happens.  As I just told you when you signed off the risks document in the hospital, I am only here in hospital to accompany my son, I do not agree with the risks involved.  But this is another important item in our kids lives that you are deciding all by yourself only again.  Like you making him wear prism lens and subjecting them to almost non-stop outside school classes.

53.  It was put to the father in the witness box that sending such a text was simply unkind – cruel even. I have to say that I agree. The mother responded in a very sensible and mature way. She said as follows:

For record, this is the first time your have raised any of your concerns and questions about eye surgery despite me providing you with all his medical eye reports and begin discussion with you and your parents about his eye surgery months ago. You have been invited and encouraged to get additional opinion on this subject and to my knowledge have not done so. You met both the eye surgeon and anaesthesiologist this morning who briefed us on the procedures and again you did not raise any questions or objection.  The timing of this email leaves no time for discussion as C is now in the operating room. C, I sincerely hope we can act in the best interest in our children going forward and not use the matters of raising them as battle grounds.

54.  Clearly this was an untenable situation. It should never be repeated. If consensus cannot be reached with respect to medical issues, then in the first instance one parent must be given the authority to make whatever decision is deemed necessary.        

Eye Glasses and shoes

55.  In addition the parties have been unable to agree in the past on whether or not C should wear eye glasses and the use of inserts to help correct both children’s flat feet.

56.  Given the above it seems to me that it is important that the decision making power is ultimately vested in one parent. I have considered whether it would be appropriate to make an aspirational order in the hope that the parties will be able to work together going forward. I am also conscious of the fact that the father will not wish his parental role to be undermined in anyway. The difficulty I have is that that potentially leaves the parties in exactly the same position as they are in at the moment, which from the children’s perspective seems to me to be far from satisfactory.  It does not, for example, seem sensible for there to be no decision made about such an important issue as whether or not C should receive medication for febrile seizures, simply by virtue of the fact that the parties are unable to agree. The father’s view point should not be maintained simply because the parties are deadlocked. It should only prevail if it is the most appropriate decision to be made based on the information available at the time. As is clear from the case law if the other parent does not agree with any decision then that parent can always return to court for clarification or guidance. I would reiterate however that returning to court on a regular basis can never be the answer longer term. It is expensive, time consuming and emotionally draining.

57.  I will therefore make an order that the sole custody of both children shall vest in the mother. This is subject to her undertaking to continue to consult the father on all important decisions relating to the children in the future. Dr B has sensibly suggested a structure for ensuring that this happens in a sensible manner (please see paragraph 38 above). I would strongly suggest that the parties adopt this approach in their dealings with each other going forward.

Which school should the younger child A be sent to in September 2012?

58.  It now seems to be agreed that A should attend the new school commencing in September 2012. For the avoidance of doubt I confirm that an order will be made to that effect.

How should the issues surrounding C’s medical needs be resolved?

Febrile seizures 

59.  The mother asks that I make this decision now, whereas the father asks that this aspect of the case be adjourned.

60.  Following the end of the trial arrangements were made, at the father’s request, for C to see a further expert in the field namely Professor  W at Queen Mary Hospital. In January 2012 both parents attended the appointment with C. A further ECG is scheduled in February 2012 and a detailed diagnosis will not be available until the end of February/early March.

61.  Both parties’ respective solicitors have sent a letter to the court in which they record their client’s version of events. The parties are not of one accord with respect to much of what has been reported. 

62.  Given that sole custody of C now vests in the mother it seems to me that it is appropriate for her to make the ultimate decision with respect to the appropriate treatment for C at this juncture. On the basis of the three medical reports that have been filed to date it seems clear that receiving medication for the febrile seizures is considered by those doctors to be an appropriate course of action. It is a matter for the mother to decide which medication that should be. She has said that in her view C’s medical treatment should start as soon as possible and that Epilim would be her choice of anticonvulsant drug, or such other appropriate medication as advised by the treating doctor. Both sides have said that Professor W also supports the use of Epilim, if medication is ultimately recommended by her also. Given the father’s objections I will direct that this part of the order be expressed as an order nisi to be made absolute in six weeks time. In the event that the father wishes to challenge this aspect of the judgment I would ask that he file a Dr’s report, setting out the basis upon which the objection is made. The mother shall then have leave to file an updated report from a Dr in reply within 14 days thereafter. Further directions may then be given by the court as necessary.

How should the day to day arrangements for the two children be determined? And what legal label should they be given?

63.  I have given a great deal of thought to the appropriate order to be made in this case. As I have said it is not possible for me to make a “parallel parenting” order as such. However I would like to make an order that supports the concept of parallel parenting. Consequently it seems to me that it would be more appropriate to make an order for shared care as opposed to a traditional order for care and control and access. This will make no difference at all to the practical arrangements that I intend to put in place. They would have been the same in either event. However the concept of shared care seems to me to echo that of parallel parenting and I would urge the parties to adopt that approach. I agree that the children need a settled home base, especially given C’s ongoing needs. I do not accept that it would be in the children’s best interests for them to be separated for part of two weeks every month and for them to be based in different households during that time, for all of the reasons that the mother has identified. The order is made on the basis that the mother accepts the recommendations made by Dr B with respect to scheduling and that the father will ensure that the children complete their homework on Thursday evenings and on the weekends and other times that they are in his care. I do not expect the children to be required to undertake any other activities other than those that the father wishes to pursue with them during the times that they are in his care. I also accept that the mother must be given the authority to do what she considers appropriate for both children when they are with her. I was concerned that the children might not both have an opportunity to see their father mid week on weekends when they do not have weekend access and that the time between access visits might be a little long. I have therefore inserted some time on Tuesday evenings to enable the father to have supper with both children after their activities. This may require some reorganising. I think this is preferable to the Monday lunch option suggested by the mother for A only. I will therefore make an order for shared care, following the format of the order in H v H i.e. that the care of the children shall be shared between the parents as follows:

School terms:

a.   the children shall be in the care of their father each Tuesday evening from 6:00 pm or such other time as may be agreed until 8:00 pm, so that they may have supper with him;

b.   whilst the parties continue to live under the same roof the children shall be in the care of the father each Thursday from the end of school or such other time as may be agreed until 8:00 pm; thereafter once the parties are living separately the children shall be in the care of the father each Thursday from the end of school or such other time as may be agreed until Friday morning when the father shall take them to school;

c.  the children shall be in the care of their father every alternate weekend from 10:00 am on Saturday morning until Monday morning when the father shall take them to school

d.   The children shall be in the care of the mother at all other times.

School holidays:

a)   the children shall spend one half of the school holidays in the care of the father and one half of the school holidays in the care of the mother. This appears to have been agreed between the parties in principle. In the event that that is not the case I will give them liberty to apply in order to clarify the situation. Further the summer school holidays shall be split equally. In the absence of any agreement, the father shall care for the children in the first half of the holidays and the mother shall care for the children in the second half of the holidays

Public holidays

a)   When public holidays occur during school holidays or weekends they shall be considered part of the children’s school holidays or weekends and shall be subject to the provisions referred to above;

b)  When public holidays occur during other times, the parties shall care for the children alternatively. For the avoidance of doubt the father shall care for the children over the first public holiday and thereafter the public holidays will be alternated.     

Costs

64.  Given the nature of this dispute I will make an order nisi to be made absolute at the expiration of 14 days that there shall be no order as to costs.