TWC v. LKL

FCMC 8460 / 2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 8460 OF 2012

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J U D G M E N T
(Care and control)

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1.  I will refer to the “Petitioner” and the “Respondent” as the “Mother” and the “Father” respectively.

The Application before the court

2.  This is the trial of the Mother’s application for the care and control of her daughter (hereinafter called “K”), a child of the family.  In spite of that the Mother and the Father agree joint custody of K be granted to the parties, the Mother proposes the parties should share the care and control of K while the Father seeks the sole care and control of K.  The core question that requires the Court’s determination is what future care and control arrangements are in the best interests of K.

The Background

3.  The Father was born in 1987 and is now about 26 years of age.  The Father comes from a comfortable background.  He is the only child of his late parents, who used to run a sports equipment business.  After having attended school up to F 3 in Hong Kong, he was sent to a boarding school in England to further his studies. Tragically, his parents died in a traffic accident in September 2004. Following that, he returned to Hong Kong and was taken care of by his maternal uncle (hereinafter called “Mr So”) and his wife (hereinafter called “Ms Tsang”). Under the guidance of Mr So and Ms Tsang, the Father is now working in the sports equipment business of his late parents.

4.  The Mother was born in 1986 and is now about 27 years old.  She is also the only child of her parents, who were separated when she was in primary school.  She was sent to live with her maternal grandparents in Guangzhou and spent her teenage years there while her mother worked in Hong Kong.  She returned to Hong Kong to reunite with her mother when she was 18 years old.  She worked as a beautician before she met the Father and had worked as a beautician for some period of time during the marriage.

5.  The parties got acquainted in early 2008 and were married in early 2009.  K, now aged 4 ½ years old, was born in May 2009 in Hong Kong.

6.  When K was born, the Mother and the Father were respectively 23 and 22 years old. In early 2011, K was sent to live with the Father’s maternal aunt (hereinafter called “Auntie So”) in her place.  According to the Father, it has been a joint decision of the parties with the welfare of K in mind to place K with Auntie So as they have found themselves quite incapable of adequately taking care of K at that time.  The Mother said she agreed to that with great reluctance.

7.  The parties had a big quarrel in late December 2011.  After that event the Mother moved out of the matrimonial home and returned to live with her mother.  The Mother petitioned for divorce on the Father’s behaviour in June 2012.

8.  Since early 2013, K together with Auntie So have moved back to live at the Father’s place i.e. the former matrimonial home. 

9.  After the Child Disputes Resolution hearing dated 18 April 2013, it was arranged that the Mother would pick up K from school every Friday afternoon and have staying access until the following Sunday at 10 a.m.  That has been largely the access arrangement since April 2013.

The evidence

10.  A lot of evidence was adduced.  Both parties filed voluminous affirmation evidence prepared by the parties and the witnesses.  I heard evidence from Mr. Ho, Social Work Officer, who prepared an Updated Social Investigation Report dated 16 September 2013.  The Mother, a domestic helper (hereinafter called “R”) and the maternal grandmother testified for the Mother.  The Father, Ms Tsang, Auntie So and Mr So testified for the Father.  Besides the factual witnesses, Dr. Yu, a specialist in psychiatry, was called by the Father to give opinion on his psychiatric health.  In addition, there are two earlier Social Investigation Reports, respectively dated 29 October 2012 and 14 March 2013, prepared by Ms Lai, Social Work Officer, whose attendance at this trial is not required by the parties.  Furthermore, by consent leave has been granted to the Father to produce and rely on the surveillance evidence as particularized in the letter from his solicitors to the other party dated 16 October 2013, produced and marked exhibit “LKL5-1” to his 5^th Affirmation filed on 21 October 2013, without calling the maker of the same to give evidence at the trial.

The Mother’s case

11.  She loves K and has been actively involved in her daily care.  She certainly desires to share the care and control of K so that she can have a significant involvement in the upbringing of K.  The Mother said the Father and his witnesses are malicious and intent on blackening her name with the suggestion that she is in pursuit of the care and control of K not out of her genuine care and concern for K but for the advancement of her claim for ancillary reliefs.

12.  Since K was arranged to be taken care of and live with Auntie So, although she had to work long hours for living and the Father and his relatives have been frustrating her access to K, she has tried to make visits on K as much as she can.

13.  Though she has gone to pubs and bars for birthday party or meeting with friends, she denied she has frequented night discos and bars or practised one night stand.  The Father’s accusation that she has a causal sense of sexual relationship is a vivid demonstration of how far the Father can go to sully her name.

14.  While she was an inexperienced young mother and young wife having no idea on how to nurse K, right from the beginning she is very willing to learn how to take care of K and longs to be actively involved in the care of K.

15.  On the other hand, the Father is not a proper parent to be granted the care and control of K.

16.  The Father used to party with friends several nights and days in a week.  He has not been actively involved in the care of K.

17.  The Father has been diagnosed with depression and required psychiatric treatment for depression.  For his psychiatric problem, doctor has been advising the Father to take medications, obtain regular psychiatric check-up, live a healthy lifestyle and refrain from drinking alcohol.  Not only has the Father failed to follow the doctor’s instructions, but he chooses to party with friends several nights and days a week, take dangerous drugs, drink large amount of alcohol, smoke cannabis, or play video games with friends from dusk till dawn.

18.  The Father has been aggressive in character and has been prone to violent behaviour.

19.  Since the parties were separated, the Father had exposed K to his loud sexual exploits with his new girlfriend.

20.  She being the mother has a natural role in the rearing of K.  K is always afraid of Auntie So, who disciplines K and gives her lectures.  Auntie So is not an appropriate substitute for her.

21.  Bothe her mother and R, who is now working for them, are very close to K and they are prepared to help in her care of K.

The Father’s case

22.  He loves K and genuinely cares and is concerned about K’s welfare and is eager to be actively involved in her upbringing.

23.  He had a wild life when he was young.  At that time, he was seriously depressed by the sudden death of his parents.  He does not have any drug problem anymore. He has changed a lot and become a mature person since the separation of the parties.

24.  The Mother is definitely unsuitable to be K’s carer.  She is still young and enjoys going out and clubbing.  She has a causal sense of sexual relationship.  She always indulges in meeting with men and having sexual relationship with newly acquainted men.  She is so absorbed in her clubbing life that she is too busy to spend any quality time with K.

25.  Since the birth of K, the Mother has indulged in telephone calls with her friends day and night without taking care of K.

26.  She frequently played online games at home without taking care of K.

27.  The Mother seldom took care of K personally. She was busy in playing with her own things or going out with friends.

28.  The Mother seldom visited K after she was placed under the care of Auntie So, which shows the Mother’s disinterest in K.

29.  The foremost reason for the Mother’s quest for the care and control of K is for her to gain ground on her claim for ancillary reliefs.  She is not genuinely interested in taking care and looking after K.

30.  R is a lazy, unfit and incapable helper and is unsuitable to be K’s carer.

31.  The maternal grandmother who works in shift is too busy to be actively involved in the care of K.

32.  Auntie So being a very experienced child minder and is very capable in taking care of K, who is living happily and growing healthily with him and under her care, the present arrangement is the best for K for the time being.

The applicable law

33.  The general principles governing applications relating to children are set out in s. 3 of the Guardianship of Minors Ordinance (the “GMO”), Cap. 13, which provide that:-

“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 best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to-

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

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

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

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

34.  The Hong Kong Family Court has on many occasions taken into account of a welfare checklist of factors referred to in the Law Reform commission of Hong Kong’s Report on Child Custody and Access dated 7 March 2005, i.e.:

(a) The ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding;

(b) The child’s physical, emotional and educational needs;

(c) The nature of the relationship of the child with each of the child’s parents and with other persons;

(d) The likely effect on the child of any change in the child’s circumstances;

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

(f) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

(g) Any harm which the child has suffered or is at risk of suffering;

(h) Any family violence involving the child or a member of the child’s family;

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

(j) The practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(k) The range of powers available to the court in the proceedings in question; and

(l) Any other fact or circumstance that the court thinks is relevant.

I shall refer to some of these factors in so far as they appear to be relevant to the present case.

35.  It is trite that the best interest of the child is the first and paramount consideration.  It is also clear and well-established law which has been reiterated in judgments in Hong Kong that in a matter relating to the custody or upbringing of a child, to make a decision that the Court consider to be in the best interest of the child, the judge has the duty to take into consideration and weigh all relevant factors properly.  The welfare checklist is to be used as guidance.

Discussion

The welfare checklist

a) The views of K

36.  Though K at her young age is hard to understand divorce and the forthcoming issues, Ms Lai mentioned that K has repeatedly said to her that she wanted to go back to Auntie So’s place.  In her 1^st report (at para 42), Ms Lai stated:

“從資料顯示，家中各成員在K心中同樣重要。過往一年，K的基本照顧主要由蘇女士提供，而母親與父親則透過探視維繫與女兒感情。… 當問及留宿安排，K重複表示要回姨婆家中，顯示姨婆的家給予K一份安全感。”

(It appears that every family member is the same as important in the heart of [K].  In the past year, [K]’s basic care has been provided by Auntie So, and the mother and the father have been maintaining their relationships with [K] through access.  When being asked about overnight access arrangement, [K] repeatedly said that she wanted to go back to grandaunt’s place, which shows that grandaunt’s place has been providing a sense of security to [K].)

c) The nature of the relationship of the child with each of the child’s parents and with such other persons;

f) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

i) How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs

37.  As the parties tried to show at great length how much quality time they have spent with K and convince the Court how the other party cannot be a proper parent, it was increasingly becoming clear to me that the issues of the present case are likely to focus on the parties’ disputes on the parents and the other related persons’ involvement in the care of K and their respective ability to take care of K, including:-

i) The Mother;

ii) The maternal grandmother;

iii) R;

iv) The father;

v) Auntie So.

The Mother

38.  The Father conducted a year-long spying operation on the Mother.  Videos captured scenes that the Mother went to pubs and bars with her friends.  The Father accepts there is nothing intrinsically wrong that the Mother enjoys going to pubs and bars with friends.  His complaint is that the Mother has a very active nightlife which runs into conflict with her commitment to take care of K.

39.  The videos also captured moments where the Mother was being dropped off to visit K at Auntie So’s place when K had chicken pox, spending time taking K to drawing lessons, carrying K on her shoulder into a double decker bus while K was sleeping, going home to meet up with K after work, and taking K to family gatherings.  From the videos, the Mother did not go to pubs and bars frequently during the last year.  Despite the videos capturing scenes depicting the time between the Mother and K, the Mother is described by the Father as uncaring since she did not always carry K herself but let the maternal grandmother carry K or she did not wait outside when K was taking her drawing lesson and asked R to pick up K instead.  I do not agree that not carrying one’s child at all times or not picking her up from an activity class implies that one is not a caring mother.  Looking at the evidence in the round, I do not regard that the videos can be used to show the Mother has a very active nightlife which runs into conflict with her commitment to take care of K.

40.  According to the Father, the Mother has a promiscuous lifestyle.  Apart from the bare assertion made by him and his witnesses, his ‘evidence’ of this awful accusation is scenes in the videos showing the Mother having dinners or going to discos with various men.  There is no evidence of the Mother having casual sex with these men as suggested by the Father.

41.  From the video it can be seen on one occasion the Mother brought K to a pub at about 10 p.m. and K was so tired that she fell asleep.  The Mother explained that she was taking K to meet a friend who worked at the pub.  For obvious reasons, it is undesirable for the Mother to have taken K to a pub at a time when K should go to bed.

42.  The Mother accepted that she had no idea on how to nurse K.  It was chaotic and the parties needed help but she denies the Father’s allegation that she has been less than willing of taking care of K.  The parties had the help of a confinement lady and R who has been serving the Father for 2 years before K was born, whereas the confinement lady has stayed with them for 2 months.  During that period, the Mother learnt from her on how to take care of K.  The Mother breast-fed K, changed her diapers and nappies and gave her baths.  The Mother breasted K despite that she was suffering from extremely painful sore & cracked nipples.  She continued to breastfeed K until she became quite ill and had to take antibiotics for medical treatment.  At her doctor’s advice, she stopped breastfeeding K as she was taking antibiotics.  After she recovered, she could no longer produce milk to breastfeed K.

43.  About her habit of talking over the phones, she agreed that she has talked regularly to a good friend whom she has known for a long time and has shared her life with her.  She wanted to share her happiness and bitterness with her good friend about being a young mother.

44.  The Mother said as far as she can remember, she visited K 5 to 6 times per month in average and about 15 times in December 2012 after K was placed in the care of Auntie So.  She said she has tried to make visits as much as she can.  According to Auntie So’s records, the Mother visited K only 6 times during January to March 2012 and there was no visit during April to June 2012, prior to the issue of the petition for divorce.  It was pointed out by Mr Surman, Counsel for the Mother, during cross-examination that Auntie So’s records were inaccurate.  It appears that Auntie So has not put all of the Mother’s visits on her records.  As well, the Mother has worked for long hours.  Not only did the long working hours made it impracticable for the Mother to visit K frequently, the fact that K lived in Kwun Tong also made it inconvenient for her go visit her.  Despite it is accepted that the Mother did not visit K as frequent as she wished, I do not regard the pattern of the Mother visiting K since December 2011 shows that the Mother has been disinterested in K.

45.  In view of the importance of parenting and to improve her parenting skills and to learn how to be a better parents, the Mother has enrolled and completed a parenting and child’s growth and development course and a nutrition course.

46.  The Father thinks the Mother being disingenuous.  Taking an overview on the evidence, I accept that the Mother cares and is genuinely concerned about K’s welfare and is willing to be actively involved in the care of K for the welfare of K.  I do not regard that she is questing the care and control of K to advance her claim for ancillary relief.

R

47.  The Father and his witnesses described R as a lazy, unfit and incapable helper who cannot do basic chores correctly or take good care of K.  Yet R had worked for the Father for the period from 2006 until October 2012 when she moved to work at the maternal grandmother’s place.  In my view, was R as lazy and incapable as described by them, the Father would fire her during her employment with him.  I am incredulous to the suggestion that R is basically good for nothing.  I accept that she has been actively involved in the daily care of K as she alleged.

The maternal grandmother

48.  After K’s birth, every Friday she visited the parties’ place to see K and the parties.  After K moved to Auntie So’s place, she continued to visit K and the Mother at the Father’s place at weekend when K would be brought back to home from Auntie So.  Sometimes she would go to Auntie So’s place to visit K.  She plans to retire in which event she can spend more time with K.

49.  Mr Ho observed both the Mother and the maternal grandmother has a good relationship with K (see para 10 of Mr Ho’s report).

50.  I accept that the maternal grandmother loves K and cares and is concerned about her welfare.  She has a good relationship with K but at the same time it is noted she has never been K’s primary carer.

The Father

51.  The Father has been diagnosed with depression since his parents’ sudden and tragic death in 2004 when he was only 17 years old.  He required psychiatric treatment for depression.  He has taken dangerous drugs and alcohol to manage his depression.  In February 2008, the Father overdosed on dangerous drugs by taking 5 to 6 Ecstasy pills in one go.  He admitted himself to hospital and was hospitalised for a month for psychiatric treatment.

52.  At the beginning, the parties were excited with the birth of K.  The Mother said things changed for the worse dramatically in the year of 2011.  Over time the Father began to distant himself from the Mother and K and spent more and more time with his friends on drinking and partying outside, or inviting friends to home to party, playing video games and smoking through the nights and well into the next day.  The Father spent the nights on partying with friends and slept during the day.  When K made noises as she was running around the flat, playing with toys or crying, the Father would become very annoyed and demand K to stay in her room.

53.  The Mother said the Father is a violent person.  She said one day during the marriage, the parties had a heated argument.  The Father completely lost his temper.  He went to the kitchen, pulled out a knife, slammed it on the counter top and threatened to chop up the Mother.  K, being present at the scene, was cuddling the Mother, crying and trembling in fear.

54.  Not long after September 2011, the Mother began to suspect the Father was having an affair.  On 29 December 2011, they had an argument about it.  The Mother said in the heat of the quarrel, the Father lost his temper and slapped her face. He went on to press her down on the bed and throttled her neck.  When she struggled to get away from him, accidentally she picked up a mobile phone and used it in defence to hit him on his head.  The Father reacted by snatching the mobile phone out of her hand and threw it on the floor.  The mobile phone was smashed.  The Father then picked her up from the bed in anger and threw her against the bedroom wall.  As she landed on the floor she banged her head and her back.  The Father’s version of that event is that on 27 December 2013, the parties had an argument at home and the Mother threw her mobile phone directly at him causing his head bleeding seriously.

55.  The Mother suggested the Father’ is not so much asking that he should be the principal carer for K, but that Auntie So should be, and further the Mother should be just a ‘weekend mum’.  The Father denied it.  He stresses that he wants K to live with him.  Since K has been living with him, he has learnt a lot from Auntie So in terms of caring K.  He said he is mainly responsible for playing and reading books with K.  He spends a lot of quality time with her at home on playing with her, reading books with her and teaching her home works and playing piano.  He also reads and checks K’s kindergarten handbook every day and he signs the handbook whenever possible.

56.  He admitted he had a wild life when he was young and at the time when he was seriously affected by the death of his parents and the litigation of his father’s brother fighting for his guardianship in order to get control of his parents’ business.  He was very lost at that time.  With the support from his relatives and professional intervention, he has quitted the abuse of substances and now has good mental health.

57.  In this respect, the Father’s case is support by Dr Yu, who is of the opinion that:-

(a) The Father had had mental ill health and he suffered from grief since the death of his parents in September 2004 when he was a teenager.  Dr Yu believes the Father developed emotional symptoms in response to the bereavement, which was abrupt and tragic.  It has taken time, the support from his relatives, and professional intervention for him to get better.

(b) He was a teenager devoid of the love and guidance of his parents.  He succumbed to the temptation of using alcohol and drugs to counter his sorrows during late 2004 to early 2008.  With the support from his relatives and professional intervention, as well as his willpower, he has succeeded in stopping the abuse of substances.

(c) He has had good mental health since he was discharged from hospital in March 2008.

(d) He does not have a propensity for hostile or aggressive acts.

It is Dr Yu’s prognosis that the Father should enjoy good mental health in the coming years.  The Father enjoys the various aspects of his life, which include parenting, work, a romantic relationship, relationships with relatives and friends, and exercises and leisure activities.  In my view, Dr Yu’s opinion is objective, moderate and reasonable.  I accept Dr Yu’s evidence.

58.  Since K started attending kindergarten, the Father has been positively participating in the school work and extracurricular activities of K (see Ms Lai’s 1^st report at para 14; Ms Lai’s 2^nd report at paras 6 -9 and Mr Ho’s report at para 6).

59.  The Father has a very good relationship with K.  Mr Ho stated in his report :-

“跟據觀察，K和父親關係親密，她看來很喜歡跟父親玩耍，對父親親她面額感到開心。父親亦能夠透過玩耍教導女兒，合作完成任務。K看來已接納了蘇女士為家人，樂於接受她的教導。”

(From [my] observation, [K] has a close relationship with the father. She appeared to enjoy playing with her father and felt very happy when her father kissed her forehead.  The father could teach [K] through playing with her and finish a task together with [K]. It appears that [K] has accepted Auntie So as part of her family and felt comfortable to take her instructions and advice.)

60.  The Father’s mental health problems and his previous involvement with drugs were brought to the attention of Ms Lai and Mr Ho, who have investigated the case and are both satisfied the Father is a suitable parent to be granted care and control of K.

61.  On an overall assessment of the evidence, I accept that the Father loves K.  He has been actively involved in the care of K and is capable of taking care of K.

Auntie So

62.  Auntie So is the Father’s late mother’s elder sister.  When the Father was young, she was asked by her sister to help to take care of the Father as his child minder.  The Father had been looked after by her since birth until he was about 2 when he returned to live with his parents.  She has also taken care of the two children of Ms Tsang and Mr So and looked after her other nephews.  She is paid for providing child care services.  She is very capable in looking after small children.  She is willing to live with K at the Father’s place and is prepared to continue helping the Father take care of K.

(g) Any harm which the child has suffered or is at risk of suffering;

63.  The Mother said after she moved out of the matrimonial home in December 2011, one day K said to her, “Mommy, Daddy is so mean.  He always hit (his new girlfriend) so hard that she screams very loud”.  The Mother has been told that neighbours have made complaints to the management office about the loud sex exploits between the Father and his new girlfriend every day.  R also testified that after making love to his new girlfriend, the Father did not bother to clean after his mess but disgustingly tossed their used condoms on the ground of the master bedroom at times when K was present and running around.  She considered it is unsuitable that the Father has exposed K at her very young age to such adult scenes.  However, Auntie So gave evidence that she has not seen or heard any loud sex exploit between the Father and his new girlfriend since she lived in the Father’s place.  It appears to me such loud sex exploits have been subsided and moderated since Auntie So and K moved back to live in the Father’s place.  I believe the Father and his new girlfriend would behave with general decorum when Auntie So and K are living with them.  I do not consider that K will be at risk of being exposed to loud sex exploit if she lives at the Father’s place.

(e) The likely effect on the child of any change in the child’s circumstances

64.  The Father contended as K has settled happily to live with him and Auntie So, status quo should be maintained because the disruptions to be caused by requiring her to adapt to a new living environment all over again cannot be underestimated if her care and control is to be changed from him to the Mother.  The Father is to be assisted by Auntie So, who will continue to live at the Father’s place together with K.  There is no doubt that K is very attached to Auntie So as she has been taking care of by Auntie So since early 2011.  Auntie So is experienced in looking after small children and is doing well in taking care of K.  The Father’s place was K’s home when she was born till the age of about 2 years old.  I agree with the Father that whilst this factor alone is not determinative, there are obvious advantages of preserving the status quo in the present case.  K has been in good hands under the care of the Father and Madam So.  K’s performance in school is noted to have been significantly improved since she was returned to the Father’s place.

Overall, what are the arrangements in the best interests of K

Custody

65.  In the present case, the parties agree that joint custody of K should be granted to the parties.  In spite of that the parties have had a lot of mistrust and difficulties over their relationship, the parties are loving parents who should be able to make rational decisions in the interests of the child.  I believe they will be able to cooperate with each other concerning matters of importance in the upbringing of the child.  I agree that there shall be an order for joint custody.

Care and Control

66.  As said in the above, the core of this case is to what extent each parent may be involved in the future day to day care of K as she grows up.  The Court is required to decide whether:-

(a) the parties should share the care and control of K; or

(b) the Father should have the sole care and control of K with reasonable access to the Mother.

67.  In her Open Proposal dated 24 September 2013, the Mother proposes shared care and control by the following two options:-

(1) K is to spend 4 nights with the Mother (from Friday to Tuesday) and 3 nights with the Father (from Tuesday to Friday) on a weekly basis; or

(2) Alternatively, K is to spend 7 days with one parent followed by the next 7 days with the other parent.

68.  By a letter dated 7 October 2013, she has also suggested a schedule for gradually increasing the time K is to spend with her over a period of 1 year.  She is effectively seeking some sort of shared residence.  She suggests that it is for the best interests of K to have shared parenting where K can have both parents involved in her school work and activities during weekdays and have fun time during weekends and holidays, rather than sole parenting with the Father, which means effectively leave the care of K to Auntie So during weekdays and limits K’s time with her mother during weekends only.  In support of the proposal on shared care, Mr Surman mentioned a numbers of shared care cases in his List of Authorities: A v A (Minors: Shared Residence Order) [1994] 1 FLR 669; Re H (a Child: Joint Residence/Parental Responsibility) [1995] 2 FLR 883; Re D (Children) (Shared Residence Order) [2001] 1 FLR 495; Re P (Children) (Shared Residence Order) [2006] 2 FLR 347; A v A (Children) (Shared Residence Order) [2004] 1 FLR 1195; Re K (a Child) (Shared Residence Order) [2008] 2 FLR 380.

69.  Mr Pang, Senior Counsel for the Father, submitted that the shared care and control arrangements proposed by the Mother is rarely made in this jurisdiction and in the circumstances of this particular case undesirable and not in the best interests of the child, and the authorities relied on by the Mother in relation to “shared residence” need to be examined carefully.  These authorities were decided under a different regime (Residence Orders and Contact Orders instead of custody, care and control).  The authorities do not suggest any principle of ‘equality of time’.  Where in an individual case the court made a Shared Residence Order (equivalent to joint custody) with equal amounts of time spent with each parent, that was in a situation where the children were generally older and giving effect to the status quo which was working well in that particular case.

70.  In SKP v Y,ITT, FCMC 17772/2011, unreported, 12 November 2012, HHJ Melloy said:-

“Joint care and control

21. Consequently joint care and control denotes a situation where the parties are sharing the day to day practicalities of raising a child. It will normally mean that the child is spending significant periods of time with both parents in each of their homes, but not necessarily on a 50:50 basis. However the time shared is likely to be more significant than in a standard custody/access type order and will probably mean that the child is spending at least 35% of his time based with each of his parents. One would expect that both parents are involved in the schooling and extracurricular activity schedule and it normally denotes a high level of co-operation between the parents. Consequently one would normally expect an order for joint custody and joint care and control to be made by consent. However court intervention to that effect is not precluded. In the language of the social scientists an order for joint custody and joint care and control would probably be reflective of a cooperative co parenting scenario.

So how does this compare with the concept of shared care?

22. The concept of shared care as an alternative to joint care and control has developed over time. I referred to this recently in a case that may be going on appeal and is presently unreported namely TAC v VDC nee VDM FCMC 16497of 2010. In that case I referred to H v H (unreported, 6 September 2002, CACV 42 of 2002), where the Court of Appeal first upheld an order for shared care. This judgment has been referred to by counsel for the father in this hearing. What is interesting is that in that case an order was made for sole custody and shared care. This approach was then followed by myself in SEB v ZX (Custody) [2007] HKFLR 165 referred to above and more recently in RWS v KCC, FCMC 9661 of 2010 unreported. In each of these cases and for a variety of different reasons it was felt appropriate for the ultimate decision making power to vest in only one parent. Thus orders were made for sole custody. However the court was anxious to ensure that the child/ren involved should continue to spend significant amounts of time with both parents in a way that was more reminiscent of a joint care and control order. In order to recognise this and the fact that the non custodial parent continues to have a great deal of practical control in the child’s day to day life, the phrase shared care was coined. Again in social science terms this is perhaps more reflective of a parallel parenting regime i.e. where there is a very high level of conflict between the parents which makes cooperative co parenting virtually impossible, but where it is in the child/ren’s best interests to spend significant periods of time with both parents. It would be normal in a situation like that to set out very clearly how the child/ren’s time is to be split between both parents. There is no order for access per se. I made such an order in RWS v KCC, FCMC 9661 of 2010 commenting as I did that:

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 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:

Detailed arrangements were then set out accordingly.

23. In TAC v VDC nee VDM FCMC 16497of 2010 I made an order for joint custody and shared care. Again there was a very high level of conflict between the parents necessitating a very detailed order, which was again more reminiscent of a parallel parenting regime. I did not think it appropriate in that case for the important decision making power to vest in one parent only.”

71.  As stated by HHJ Melloy, contrary to Mr Pang SC’s submission that the shared care and control arrangement is rarely made in this jurisdiction, the Hong Kong Family Court is prepared to make an order for shared care and control arrangement reflective of a parallel parenting regime (even in cases where there is very high level of conflict between the parents which makes cooperative co-parenting virtually impossible) where it is in the child’s best interest to spend significant periods of time with both parents.  It would be normal in a situation where there is very high level of conflict that the Court will make detailed arrangements on how the child’s time is to be split between the parents in the hope that this will reduce the opportunity for continuing conflict between the parties.  The real question is whether a shared care and control arrangement is in the best interest of K for the present case.

72.  During the CDR, Ms Lai expressed her opinion on the undesirability of requiring K to shuttle between two homes:-

“MISS LAI: I think for the child is quite young. I think her need include different aspects, the emotional, the health, educational and the personal care needs and also for the young child I think a sense of security is important. And for [K] in her case, because her past pattern is a stable pattern, it’s quite different from some case that, yes, already build up a pattern with half with in mother’s home and then half it in father’s home and if it is the case as a usual pattern I think it can goes on but for [K]’s case I think it’s quite hard for her or it has to take time for her to adjust a new plan and that’s my view”

73.  Ms Lai’s observation in this regard was echoed by Mr Ho in Court.  He is of the opinion that the Mother’s proposal of shared care and control arrangement for K is not a stable arrangement for K and such arrangement will create confusion and unease to K as the Mother and the Father might have different approaches towards matters like parenting and homework.  All in all, he considered that the Mother’s proposal is not suitable bearing in mind the best interests of K.

74.  It is observed by both Ms Lai and Mr Ho that in the particular circumstance of this case, a shared care and control arrangement as proposed by the Mother will cause serious disruption to K’s daily life by requiring her to adapt to, and switch between, different living routines and parent concepts frequently and therefore will not be of the best interest of K.

75.  It is the Mother’s case that she has a natural role in the rearing of K and Auntie So is not an appropriate substitute for her.  The Mother referred to L v C, CACV 144/2003, unreported, 19 March 2004 where Rogers VP said (at para 17)

“The position of a mother in the life of young children cannot be underestimated. If there is to be a substitute for the real mother, then the court must be satisfied that that substitute is appropriate. I consider that this proposition needs no authority, but our attention was drawn to a number of cases in particular S v S [1972] 117 Sol Jo 34, H v H & C [1989] 1 All ER 262 and Re U (Application to free for adoption) [1993] 2 FLR 992, which all make the same point.”

76.  It was said in Brixey v Lynns [1996] 2 FLR that where a very young child has been with its mother since birth and there is no criticism of her ability to care for the child only the strongest competing advantages are likely to prevail.  Be that the advantage of a very young child of being with its mother is a consideration which must be taken into account in deciding where its best interests lay, its importance will vary according to the age of the child and to the other circumstances of each individual case such as whether the child has been living with or apart from the mother and whether she is or is not capable of providing proper care.  As stated by Lord Jauncey in Brixey v Lynns at 505 B-D:

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

77.  In the present case, it is noted K has been taken care of by the Father and Auntie So for a long time and she is doing very well under their care.  In the circumstance, it appears that the importance of the natural role of the Mother in the rearing of K is of comparatively minor significance.

78.  The Father has flexible work hours and is normally required to go to work for a few hours a day.  Since his shop opens at 11 am, he is able to spend the morning with K and return home by the time K comes back from school.  On the contrary, it is the Mother’s case that she is planning to enrol in some classes with a view to returning to full-time work in the near future.

79.  At the same time, I take note Ms Lai at her 1^st report (at para 14) stated :

“楊老師表示開學初期，她曾嘗試致電與母親聯絡，目的是向她講解學校情況及一般事項，以達致家校溝通；由於母親的電話沒有人接聽，楊老師曾留口訊在留言信箱，至今未能成功取得聯絡。楊老師亦以電話方式與父親聯絡，從而知道K的照顧安排。父親同意學校與姨婆聯絡，跟進女兒日常安排；父親亦曾到學校接K放學，並會向老師了解女兒在校情形。”

(Ms. Yeung said that at the commencement of term, she had attempted to call the mother to explain the situation in school and other general matters in order to achieve communication between home and school; as the mother’s telephone was not answered Ms. Yeung had left messages on voice mail, but up to-date she was not successful in getting in touch with her.  Ms. Yeung also telephoned the father and through that came to know the arrangements for [K]’s care.  The father consented to the school contacting the maternal grandaunt to follow up with his daughter’s daily arrangement. The father had also come to the school to pick up [K] after school and would ask [K]’s teachers about her performance. )

80.  As this Court said in FKYP v KHYF, FCMC No 7952 of 2012, unreported, 28 August 2013 (at para 96), when in all other respects, the ability of either parent to care for a child cannot by themselves be criticised, the ability of one parent to give more time to the child will weigh with the court in determining where the child’s best interests lie: Liu Lau Oi Yuk Shelldy v Liu Chian Hsiong, Civil Appeal Action No. 126 of 1997, 17 October 1997, per Saunders DJ.

81.  Another strength that the Father has is that he is the more educated parent of the two and is in a position to help K on English and other school work.

82.  With regard to the Mother’s allegation that the Father’s new girlfriend does not treat K well and does not have a good relationship with K, it is noted this is contrary to the observation of Mr Ho that K tried to draw a picture to indicate that “her home” consists of the Father, the mother, Auntie So and the Father’s new girlfriend.

83.  Ms Lai observed while both parents have a good relationship with K, she appears to be closer to the Father:-

“從觀察所得，她與父母關係良好，但她似乎與父親比較親密…”

(From [my] observation, her relationship with both parents is good, but she appears to be closer to the father) (para 42 of Ms Lai’s 1^st report)

84.  Both Ms Lai and Mr Ho take the view that it is in the best interests of K that her daily care and control be granted to the Father (with the assistance of Auntie So) with reasonable access to the Mother.  It is Mr Ho’s recommendation in his report (at para 22) that:-

“在日常照顧和管束方面，考慮到姨婆蘇女士一直是K的重要照顧者，K看來亦視她為父母以外最重要的親人，況且，父親擁有廣泛的家庭支援，他們亦持續積極參與K的照顧、教育和醫療事務，因此，K的最佳利益而言，由父親擁有照顧和管束權較符合K最佳利益。”

(Regarding everyday care and control, having considered that Madam So has been the primary carer of [K] all along, and [K] also sees her as her most important family member besides her parents, and furthermore, the father has extensive support from his family, and the paternal family members have also actively and continuingly take care of the education and medical affairs, therefore, to the best interests of [K], the father should be granted the care and control of [K])

85.  I remind myself of the provisions of s. 3 of the Guardianship of Minors Ordinance, Cap. 13 which provide that when a court determines any question with respect to upbringing of a minor, the court shall regard the best interests of the minor as the first and paramount consideration, and in having such regard shall give due consideration to the social welfare reports and all relevant factors.  Using the welfare checklist as guidance, I consider the factors that are important in this case are the child’s needs, the parents’ and other relevant persons’ involvement in the care of the child and their ability to take care of the child and the likely effect on the child of any change in her circumstance.  I give particular weight to the fact the Father is able and willing to give more time to the child than the Mother.  I place a particular weight on the status quo, which is working well and is in favour of the Father.  The child was moved from her parents to live with Auntie So when she was 1 year old.  Not long thereafter when she was about only 1 ½ year old, the Mother and the Father were separated.  She was moved again together with Auntie So from her place back to the Father’s place when she was about 3 years and 9 months old.  She was passed around to and from the Father’s place and Auntie So’s place at very young age.  I agree with Ms Lai and Mr Ho that in the particular circumstance of this case, the child needs a sense of security and a stable environment for her to grow up and develop.

86.  Having carefully considered all of the relevant factors and having given due consideration to the Social Investigation Reports, despite the ability with which Mr Surman argued to the contrary, it seems to me on balance it would be in the best interests of the child to grant the care and control of the child to the Father with reasonable access to the Mother.

Access

87.  The Mother should continue to have weekend staying access.  In addition, the Mother would have alternate weekday access on either Tuesday or Wednesday after school to 8 pm and further access including staying access during long school holidays and special occasions.  This is to ensure the child has proper and meaningful contact and can spend time with both parents.  The access arrangements shall be as follows:-

(a) Staying access from every Friday after school to Sunday at 10 am;

(b) Alternate weekday access on either Tuesday or Wednesday after school to 8 pm;

(c) Staying access during long school holidays including Summer, Christmas, Chinese New Year and Easter and half terms be split equally with one parent having the first half and the other parent having the second half;

(d) Extra day access on the child’s birthday, the Mother’s birthday and the Mother’s Day.

Surveillance Evidence

88.  The Father conducted a year-long spying operation on the Mother with costs racking up to some HK$410,000.  As stated by the Father, the Mother was followed on 33 separate occasions spreading over the period from July 2012 to 31 July 2013. Understandably, the Mother has felt very bitter about the spying operation undertaken by the Father against her.  It is emphatically submitted on her behalf that:-

(a) The large sum of money spent on such a destructive exercise, funded by the Father’s company, could well have been used on a co-parenting course, which would have been beneficial to all parties in the long run.  Yet this was not the decision the Father made, instead he chose to damage whatever little was left of a broken marriage.

(b) The Father, his relatives and legal team have edited and trawled through all the video material and they have found absolutely nothing at all.

(c) The spying operation demonstrates enormous insensitivity, a crass disregard for another individual’s personal privacy; and further demonstrates on the part of the Father and his cohort of relatives a willingness to stoop to every conceivable device (however disreputable) to get their own way – totally disregarding the best interests of K as they trampled across her privacy as well as that of her mother’s.

(d) Such underhand, intrusive and abusive use of covert surveillance or more accurately ‘spying’ should not be encouraged in the use of custody proceedings unless the party can show that the spouse is a danger to the child in question such as causing physical harm to a child.

89.  A research on the case law in England and Hong Kong shows that the issue regarding the use of covert video surveillance in children’s cases was discussed only once in Re DH (A Minor) (Child Abuse) [1994] 1 FLR 679. Like the present case, no point was taken on the admissibility of the covert video surveillance in that case, so what Wall J (as he then was) said in the judgment on that topic was obiter.  In that case, a 2-year-old child was found to have stopped breathing while he was alone with his mother in a cubicle in a local hospital.  He was staying at the hospital because of upper respiratory tract infection while the mother was admitted to the hospital because she suffered from mood swings.  Similar incidents occurred when they were transferred together to another hospital.  The mother was found to suffer from Munchausen’s syndrome by proxy.  It was suspected that the child might have been assaulted or harmed by her mother.  The mother and the child were then arranged to be transferred to a specialist unit where covert video surveillance was used without the consent of the mother or her husband.  The mother was seen in the video to have placed something over the child’s face. She was arrested.  She initially denied the involvement but having been shown the video she admitted one incident.  A care proceedings by the local authority subsequently ensued.

90.  Wall J explained at 709 how the issue regarding the use of covert video surveillance (which was abbreviated as “CVS” in the judgment) arose:-

“A discussion of the issues raised by CVS is not directly necessary to my decision in the instant case since there was no point taken on the admissibility of the evidence …

Although I was impressed by the evidence given by both Mrs M and the father on the effect on them of the use of CVS, I wish to make it quite clear that I accept a submission made by Mr Swift that it is not for me to express a view about the medical ethics of CVS. That is for the doctors. I do, however, feel that it is appropriate that I should say something about the legal and forensic application of CVS to proceedings relating to children whose mothers are suspected of suffering from MSBP and in particular where the syndrome manifests itself by attempted suffocation of the child.

The first point to be made is, of course, that there was in this case and there can be generally no objection to the admissibility of evidence produced by means of CVS. Counsel were agreed that even if the evidence were unlawfully or improperly obtained, it would still be admissible in civil proceedings and a fortiori in proceedings relating to a child where the welfare of the child plainly requires that the truth of the manner in which he was abused should be ascertained. The case relied on by Mr Jubb was ITC Film Distributors v Video Exchange Ltd [1982] Ch 436 at pp 440C-441B in which the law on the admissibility of improperly obtained evidence in civil proceedings is helpfully summarized.

It appears from ITC Film Distributors v Video Exchange Ltd that it is only in cases where the manner in which the evidence is obtained plainly affects the interests of the proper administration of justice (for example, evidence obtained consequent upon a contempt of court) that the court in civil proceedings has the power to intervene and rule evidence inadmissible. Whether the court would in fact exercise that power in a child case is another question.

…

Notwithstanding its admissibility in evidence, however, the court would not wish as a matter of practice to continue to sanction conduct which is in fact unlawful.  The question thus become: given that CVS involved a baby unable to give consent to treatment (1) was it necessary in this case to obtain the father’s consent to CVS, and (2) without it, was CVS in fact unlawful in this case? ”

91.  Wall J then referred to the submissions made on behalf of the local authority in favour of the use of CVS at 712:-

“Mr Jubb, for the local authority, in submitting that the CVS in the instant case was lawful without the consent of the father, developed his argument along similar lines as follows:

(1) In the present case the intention of the consultant paediatrician was to establish whether the mother was responsible for bringing about the symptoms akin to apnoea when no other cause had been found after careful observation of the child.

(2) In order that the observation could take place, the mother and the child had to come into the specialist unit. By its very nature, it was necessary for this observation to be covert, that is, that the mother had no knowledge of the nature of the means of observation. If the mother was to know of the likelihood of observation then she would be unlikely to behave in a way that caused danger to the child. Observation by nurses in a ward would therefore be unlikely to produce any meaningful results. Likewise, it was necessary to leave the mother on her own with the child for long periods, during which she was covertly observed.

(3) There are two possible criticisms of such observation: one is that such a course might amount to the paediatrician acting as an agent provocateur and the child might be said to be placed at unnecessary risk. A further criticism of his form of observation is that it infringes medical ethics.

(4) As to risk to the child the point can be overcome by the provision of a careful programme of observation of the mother and the child by properly trained staff who can intervene within a very short time.

(5) The conflict is thus between the civil rights of the parent and the rights of the child to be brought up without being subjected to significant harm of a physical or psychological nature.

(6) The mother came to the hospital voluntarily bringing her child with her in the full knowledge that the placement there was to see if the child’s breathing problems could be diagnosed. There was therefore no trick involved, although the mother was not informed, but as instructed, she did not tell the mother. The video-recording was carried out within the confines of the hospital where the paediatrician worked, and presumably was carried out with the consent of the area health authority (AHA) – assuming that the AHA is the employer and the owner of the hospital. No issue of trespass therefore arises.

(7) There is no right to privacy at common law, and consequently if the mother, was to claim that her privacy had been invaded then that would not be actionable. If it was otherwise then video-recordings made by security cameras would be inadmissible in either civil or criminal proceedings.

(8) Furthermore, the use of security cameras must as a matter of public policy be permitted, provided that they do not in their operation either cause a trespass to land or constitute an actionable nuisance. They act to enable persons to go to the aid of those in danger in cases of emergency and also to provide the means for tracing criminals and the evidence of their actions.

(9) The method used to obtain this evidence was not unfair. The use of these aids (i.e. the video-recording equipment) is passive – that is, the camera merely records what it ‘sees’ (and the microphone correspondingly ‘hears’) and takes no other part in the activities. Similarly the nursing staff at the hospital were acting in a neutral manner.

(10) Moreover, the paediatrician was not acting as an agent provocateur. The essence of an agent provocateur is to induce the suspect to behave in a criminal manner. In this sense there is an element of trick involved. Even If, however, the paediatrician was acting as an agent provocateur his actions would not of themselves be unlawful: R v Smurthwaite; R v Gill (above).

(11) In general there is no tort of invasion of privacy, and the concept of invasion of privacy is unknown to English domestic law (save perhaps in respect of telephones but these are covered by specific legislation) …”

92.  At 714, Wall J accepted the above submissions and found the use of CVS in that case to be lawful:-

“I have come to the conclusions that the submissions of Mr Swift and Mr Jubb, which are broadly in unison, are correct and that CVS as practised on this occasion in the specialist unit and in relation to upper airways obstruction was lawful and did not require the consent of the father.

…

I have also to say from a purely forensic point of view the nature of the evidence provided is invaluable for a number of reasons.  First, it puts the issue of the cause of the child’s injuries beyond doubt; secondly it affords an opportunity to observe what the mother did in some detail, and may assist in some case(s) (a) in providing a basis for the assessment of her motivation, and (b) (by gauging her current reaction to it) in helping to assess the stage in the rehabilitative process the mother has reached; thirdly, by rendering denial impossible it obviates the need to spend substantial time in court hearing and evaluating circumstantial lay evidence and what is often inconclusive medical evidence relating to the assaults.”

93.  Wall J’s observation on the permissibility of surveillance evidence has not been further considered in any subsequent case in England and Hong Kong.

94.  There are a number of family law decisions (whether before or after Re DH) where surveillance evidence was used.  In the context of family law, some allegations (e.g adultery, cohabitation with another or one’s lifestyle etc) are by nature difficult to be proved and easy to be concealed.  Needless to say, no issue was taken in those cases in relation to the admissibility of the surveillance evidence.

95.  CYLR v CYSA, CACV No 282 of 2005, 18 November 2005, unreported was an appeal concerning the interim care and control of a minor.  Yeung JA referred to the father’s use of surveillance evidence in the judgment:-

“6. It was the father’s contention, based mainly on the evidence of a Filipina domestic helper, Miss S, who has been taking care of H since he was born, that the mother had attempted suicide in March 2005, and had frequent fight with her boyfriend who had moved in to live with her on 1 April 2005.

7. There were also allegations that the mother was frequently out late at night, sometimes not returning home until early hours of the next morning; and that she smoked marijuana.

8. Surveillance on the mother on 26^th to 27^th May and 1^st to 2^nd June, 2005 showed that the mother left home at 5:30 p.m. and 3:50 p.m. and did not return home until 4:18 a.m. and 7:35 a.m. the next morning, having visited bars and restaurants.

9. The judge granted an order for interim care and control of H in favour of the father, and adjourned the interim custody hearing to the 6^th July 2005 for an inter parte hearing pending a Social Investigation report.

10. On 30 June 2005, the mother took out an inter parte summons returnable also on 6 July 2005 seeking to discharge the ex parte order made on 10 June 2005, and for an order that care an control of H be returned to her.

11. The mother denied the allegation of marijuana smoking.  She said she had to be out at night sometimes because she had an interest in a bar or karaoke that she was observed to be visiting …”

96.  In A Local Authority v J [2008] 2 FLR 1389, the local authority commenced care proceedings in relation to 3 children as their father was considered to be a man who presented risk to the children.  The mother had found it difficult to accept that the father might represent a threat to the children.  One of the issues at trial was whether the mother had lived away from the father.  Hogg J said in 1397:-

“[46] The local authority was not satisfied that the parents had separated, and this on the weekend of 11-13 April 2008 instructed a private investigator to carry out a surveillance of the mother.

[47] On the evening of 11 April the surveillance team lost sight of her and could not find her. She did not return home until after 12:30 am on 12 April. Later on 12 April she was seen visiting the father’s brothers home on at least two occasions, and on Sunday she is recorded as visiting the father’s own mother’s home where she spent the whole of the afternoon and evening and was still present when the investigator left at midnight. The mother gave an account that she did visit the brother’s home on Saturday as his daughter was celebrating her 16^th birthday, and she was invited to the party and asked to help prepare for it. She said the father was not there, that she did not see him at all over that weekend.

[48] From the party late at night she says she took the father’s mother back home because she had been taken ill.  She stayed with his mother to see she was alright and stayed with her until late Sunday evening…”

97.  In Grey v Grey [2010] 1 FLR 1764, the English Court of Appeal (comprising Thorpe, Wall and Patten LJJ) was faced with a claim from the wife for financial provision, and an issue arose as to the wife was cohabiting with another man who might be financial contributing to the wife’s expenses.  Thorpe LJ referred to the use of surveillance evidence at 1767:-

“[9] The development of a relationship between the wife and Mr Thompson was inevitably revealed to the husband by the fact that the wife’s house was in the same street as that of her parents-in-law. The issue was raised by the husband’s solicitors in January, June and December 2007. In responding on 26 June 2007, the wife’s solicitors wrote ‘Lara instructs me that Liam is not her boyfriend, he is a friend. He does not live with her.’ About 6 weeks before the trial her solicitors wrote again: ‘my client is not cohabiting with Liam. He is making no financial contribution to the household.’

[10] On 22 December 2007, the husband’s father agreed to keep observation and to maintain a record of Mr Thompson’s use of the wife’s home. The detailed diary between 22 December and 28 January 2008 demonstrated that Mr Thompson was clearly living with the wife throughout that 5-week period. Mr Grey’s detailed evidence was the subject of an affidavit sworn on 29 January 2008. He was not required to attend the trial for cross-examination.

[11]  Similarly an inquiry agent, Mrs Dorman, carried out surveillance between 12 and 27 January 2008.  Her report dated 28 January confirmed the observation of Mr Grey senior.  She too was not required to attend the trial for cross examination…”

98.  It is noted that Wall LJ (who decided Re DH) did not make any comment on the use of surveillance in his judgment.

99.  In Re K (special guardianship order) [2012] 1 FLR 1265 (CA), the local authority instituted care proceedings in relation to a child who was born out of wedlock amid fear of domestic violence.  One of the issues was the whether the father and the mother had deceived the local authority as to the on-going nature of their relationship.  The use of covert surveillance by the local authority was referred to in paragraph [19] of Black LJ’s judgment:-

“A fact-finding hearing was scheduled for mid-September 2009. Both parents’ case was that they had separated. LA did not trust this information and arranged for covert surveillance which showed that very shortly before the fact-finding hearing the parents were spending time together. In the light of this evidence the parents, who at that point had the benefit of legal representation, submitted to various findings of fact which were record in an order of 17 September 2009…”

100.  Most recently, in IDC v SSA [2013] 5 HKC 482, the Court had to determine an unmarried mother’s claim for financial provision for the benefit of a child against the father.  Acting Principal Family Judge Bruno Chan mentioned about the surveillance evidence produced by the father at paragraph 53 of his judgment:-

“The Father does not dispute when it comes to accommodation, the court will take into account of the fact that the Mother has another child, N, even though he is not her father, but it also needs to take account of the fact that there is someone in addition to the Mother who is legally responsible for the maintenance of N, namely her own father, Mr W who is said to have come from a wealthy, prominent family in Bangkok and that himself a prominent film director, and that contrary to the Mother’s evidence, Mr W had indeed made financial provisions for N including her school fees and cash payments to the Mother for her maintenance, as evidenced respectively by his emails (PB7:2582) and the surveillance report produced by the Father (PB6:1886).”

101.  It is noted that in all the above cases, no criticism was made by the Courts (including English Court of Appeal, our Court of Appeal and also Wall LJ in Grey v Grey who has had the benefit of considering the issue in Re DH) in relation to the use of surveillance evidence.

102.  Re DH was, of course, a very different case from all the other cases above (including the present one) in that the issue of the permissibility of covert surveillance video only arose as it involved patient’s rights, parental consent, the use of covert surveillance video within a specialist ward in a hospital by a medical doctor against patients, the argument of the paediatrician acting as an agent provoeateur as well as the possibility of placing the child at unnecessary risk in the process.

103.  Mr Pang SC submitted that the use of the surveillance evidence in the present case and also the manner in which it was obtained are proper and legitimate and like all the decisions referred to in the above, there can be no issue about its admissibility.

104.  Having regard to all the above matters, I accept that the use of covert surveillance evidence in proceedings in relation to children is permissible in appropriate cases.  As to whether it is appropriate to use covert surveillance evidence in any case, in my view it depends on a consideration of the special circumstance of individual case with the best interest of the child as the guiding principle. Where there is clear evidence showing that the spouse is a danger to the child in question, presumably the use of covert surveillance can be justified.  In other cases, for my part, probably it is wise to exercise caution.  It is because to spy on the other party’s private life is intrusive and is often frown upon and taken as prying and underhand by the other party when he or she finally finds out that his or her privacy has been under covert surveillance.  It is going to do a lot to undermine trust between the parties.  It increases the costs and expenses of the litigation.  It curtails the communication between the parties.  It harms their continuing relationship as parents.  It increases the tension, bitterness and conflict that the parties may encounter in an adversarial litigation system.  The parties may be discouraged from co-operatively working together as parents in the long run, and eventually the best interest of the child will be inevitably threatened.

105.  In the present case, the Father said that the surveillance evidence is valuable in that it has revealed, contrary to the Mother’s case:-

(1) The Mother has had a very active nightlife which runs into conflict with her commitment to take care of K;

(2) Her disinterest and lack of interaction during access time with K; and

(3) The Mother failed to inform Ms Lai and Mr Ho that there were (or are) males who would individually take care of K alone living at her place in Shatin.

106.  It has been my finding that :-

(1) I do not regard the videos can show the Mother has a very active nightlife which runs into conflict with her commitment to take care of K ; (see para 39 above)

(2) In the videos, there is no evidence of the Mother indulges in having casual sex with newly acquainted men etc. as suggested; (see para 40 above)

107.  With respect to the alleged failure on the part of the Mother to disclose that the maternal grandmother’s two long time male friends would stay at her place and would sometimes help in the care of K, when being asked about her relationship with these two men, the maternal grandmother identified each one of them. There is no evidence whatsoever about these two men are unsuitable to offer occasional help in the care of K.  Nor is it alleged that they should not stay in the same flat with the child.  Apparently, it is a matter that can be adequately dealt with by way of cross examination without any videos evidence.

108.  As submitted by Mr Surman, the Father and his legal team have edited and trawled through all the video material and they have found little from it.  Still, Mr Ho and the Mother were asked to watch the covert surveillance videos.  And they were cross examined on the material.  Very roughly I estimate that Mr Ho and the parties have spent about 2 days on the videos at the trial.  On top of it, not less than ½ day has been spent on Counsel submission about its admissibility, relevancy and weight.  It is lamentable so much time has been spent thereon so little assistance that it has offered to this Court.

109.  The general principle in children’s matters is that there should be no order as to costs, but the Court has unfettered discretion to do what is just in the circumstance of the case: E v E (Financial Provision) [1990] 2 FLR 233. In view of the above matter, I have seriously considered whether I should make an adverse costs order against the Father to reflect this Court’s disapproval of the manner that the surveillance evidence was used by the Father in his conduct of the litigation.  After having carefully considered, I accept that the Father’s use of covert surveillance evidence is not designed to manipulate and harass the Mother.  He tried to use it to advance his case, which is an unwise move, in my view, and plainly without much success.  Despite that, I do not regard that the Father’s conduct in the proceedings had come within the category of unreasonable litigation conduct such as to have enabled the Court to exercise its discretion as to costs.  In particular, I take into account of the fact that there has been counter allegations during the course of the proceedings.

Costs                                                              

110.  The general approach of no order as to costs in children proceedings was summarised by Neill, LJ in K v K (legal aid: costs) [1995] 2 FCR 189:

‘… it has become the general practice in proceedings relating to the custody and care and control of children to make no order as to the costs of the proceedings except in exceptional circumstances. In Sutton London Borough Council v Davis (No 2) [1994] 2 FCR 1199 at p 1202D Wilson, J threw some useful light on the reasons for this present practice, the existence of which was recognised in this court by Butler-Sloss, LJ in Gojkovic v Gojkovic (No 2) [1991] FCR 913 at p 916H. The court of course retains the jurisdiction and a discretion to award costs in suitable cases. It is unnecessary and undesirable to try to limit or place into rigid categories the cases which a court might regard as suitable for such an award, but examples would be likely to include cases where one of the parties had been guilty of unreasonable conduct or where there was such a disparity between the means of the parties that a special order was justified.’

111.  In S v S, HCMP 5547/1999, 22 June 2000, unreported Deputy High Court Judge Gill went through the authorities and said as follows:

“ From these authorities one can, I believe, summarize the following factors which might determine how a court should approach a contest on costs in a case involving a child or children:

1. In general circumstances there should be no order for costs. Parties who have a reasonable case to put forward going to a child’s welfare should not be dissuaded from doing so by threat of an adverse costs order if they do not succeed. And in a child related case there should be no perceived winner or loser, save that it is the child who is the winner.

2. If a party has by virtue of improper conduct attracted the proceedings which but for that may have been avoided then that might well warrant an adverse costs order.

3. If in the course of the proceedings one party behaves unreasonably in his or her conduct of the litigation then that might be recognised in an adverse costs order.

4. The financial circumstances of the parties and how an order for costs will impact on the parties is a factor for consideration.

5. The general rule of not ordering costs should not deter a court from exercising its discretion to do so in circumstances it finds to be exceptional not necessarily limited to a particular category of cases.”

112.  As stated in S v S, the financial circumstances of the parties and how an order for costs will impact on the parties is a factor for consideration in the court’s exercise of its discretion on costs.

113.  In the present case, the Mother said the Father is a very wealthy man while:-

(a) she comes from a modest family background;

(b) she has limited earning capacity;

(c) she has no assets.

The parties are in dispute of the abovementioned.  At the hearing of the Mother’s application for the Father’s contribution on her legal costs in relation to the children proceedings, the Father took the position that:-

(a) the Mother has no difficulty in meeting her legal costs at all;

(b) she has undisclosed assets that she can reasonably deploy, or she can borrow with or without security.

114.  Further affirmation evidence will be filed and witnesses will go to the box and be cross-examined during the substantive hearing of the question of ancillary reliefs, when a detailed examination of the party’s financial resources and needs will be taken.  With the benefit of further evidence and a detailed examination, the court is entitled to make its conclusion in the matter at the substantive hearing.  In the circumstance, I regard that the determination of the issue of costs of these children proceedings should be reserved pending the outcome of the substantive hearing of the question of ancillary reliefs.

In Summary

115.  It is ordered that joint custody of the child of the family be granted to the parties, with care and control to the Father and reasonable access to the Mother as defined in the terms set out in the paragraph 87 above, with an order nisi that costs be reserved pending the determination of the question of ancillary relief or further order.  The nisi order becomes absolute after 14 days hereof unless a party has applied to the court for variation of the order.