C v W

Judgment Date12 October 2001
Judgement NumberFCMP207/2000
Subject MatterMiscellaneous Proceedings
CourtFamily Court (Hong Kong)
FCMP000207/2000 C v. W





NUMBER 207 OF 2000


IN THE MATTER of an application Under Section 10 of the Guardianship of Minors Ordinance Cap 13


IN THE MATTER of WWC (also known as WKY and WYMF (also known as WCCF), the minors


C Petitioner
W Respondent


Coram: H.H. Judge Saunders in Chambers

Date of Hearing: 10, 11 & 12 October 2001




1. This is an application by the mother of two young children for orders pursuant to s 10 Guardianship of Minors Ordinance (GMO) for custody and for an order changing the names of the children. The applications arise in the following circumstances.

2. The children, the subject of the application, are a girl born 25 September 1998, now aged three, and a son, born 16th February 2000, now aged 18 months. The Applicant (mother) met the Respondent (father) in November 1997. They began cohabitation almost immediately. At the time the mother, then aged 16, was working in a hair salon as a shampoo girl and the father, then aged 21, was working as an aircraft maintenance worker at the airport. Shortly after their cohabitation began the mother became pregnant and ceased work. At the time they were living in Tuen Mun, on the first floor of the building in which the father's parents and sister lived on the fifth floor. Although the relationship was not entirely stable, the son was born on 16th February 2000.

3. On 15th May 2000, after a quarrel, the mother decided to leave the father. This she did, but she did not take the children with her. That she did not take the children was an issue in the trial to which I will later refer. The children remained with the father, he having the assistance of his family in caring for them. In October 2000 the mother decided to make an application for custody and went first to the Birth Registry to obtain copies of the children's birth certificates. When she obtained them she found that the father had changed their names from those first registered, KY and CCF, to WC and YMF. Consequently, when bringing her application for custody, she also made application to restore the children's original names.

4. The mother now lives with her maternal grandmother and her elder daughter, born to her in April 1997 before she met the father. That child had been living with the grandmother during the period in which the mother and the father cohabited.

5. The mother and her maiden family have been known to the Family Services Centre of the Social Welfare Department since 1992. That situation had arisen primarily because of the mother's own mother had died as a result of drug abuse in 1995, when the mother was aged 14. Since leaving the father the mother has resided with her grandmother and has been engaged full-time in caring for her eldest child. She is dependent upon Comprehensive Social Security Assistance. They live in a self-contained public housing flat in Shan King Estate in Tuen Mun. The mother's eldest daughter attends a day school.

6. The father has, throughout, been working as an aircraft maintenance worker at the airport. He said that he earned $8,600 per month and worked overtime one night per week. He continued to live on the first floor of the building in Ting On Court in Tuen Mun, where he and the mother had lived prior to the breakdown of their relationship. The two children live with him, sharing a bedroom with a domestic helper who has been employed to assist with children. His parents continue to live on the fifth floor and they are available to assist with childcare as is his sister.

7. It was the mother's case that she loved the children and that she would devote the whole of her time to their childcare. She said that her elder daughter had an excellent relationship with both children and that with assistance from her grandmother she considered that she had no problems with childcare. She was supported in her case by her grandmother.

8. The husband's childcare plan was that the children would be mainly under the care of the domestic helper while he was at work and that he would also have the assistance of his parents and his sister in looking after the children. He was initially opposed to staying access, and it was only with reluctance that he considered the mother should have weekly staying access if he was granted custody.

9. The children are too young to express any views in relation to custody. I am satisfied from the Social Welfare Officer's report that the children are happy and interact well with both families, including both sets of grandparents, and, as far as WC is concerned, with her stepsister. It was the recommendation of the Social Welfare Officer of that the custody of the children should be granted to the father with weekly staying access to the mother.

10. A great deal of time in the hearing was taken up with the cross-examination of parties on issues in which each made accusations against the other, those accusations being designed to found a submission that the other parent was unfit to have custody of the children. It is unfortunate that they chose to conduct the case in that way for each, in the process of so doing, completely lost sight of the real issue in a custody case, namely the welfare of, and the best interests of the children.

11. That that is so may be seen especially from the father's allegation that when the children were returned from access they were found to be suffering from insect bites. It was also his complaint that WC had not been taken to morning Saturday school when at access. An analysis of the dates of that complaint showed that on a number of occasions when she was not at Saturday school she was in fact with her father. He explained that absence by the fact that she had chicken pox. That evidence put the value of the evidence as to insect bites into a proper perspective. Just as the fact that a child contracts chicken pox is not evidence of an unfit parent, neither is the fact that a child living in the New Territories has insect bites, evidence of an unfit parent. I do not propose to traverse the numerous other allegations each made against the other. None of them assisted me in making a decision as to the best interests of the children.

12. WC is now aged three. She attends what might best be described as a nursery school. To suggest that she is being deprived of a proper education because she does not, on the occasions when she is with her mother, attend that nursery school on some Saturday mornings, is to demonstrate first, that the solicitors who have allowed the allegation to be included in the papers have no proper sense of what matters are relevant in a custody case, and second, that the parties who make such allegations have no proper idea of the place in which education ought to be in the life of a three year old child. It...

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