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G, By His Next Friend Chan Lui Luna v Bvr And Others

Judgment Cited authorities 6 Cited in 1 Precedent Map Related
Vincent
Judgment Date13 May 2020
Neutral Citation[2020] HKCA 307
Year2020
Judgement NumberCACV165/2018
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV165/2018 G, by his next friend CHAN LUI LUNA v. BVR AND OTHERS

CACV 165/2018

[2020] HKCA 307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 165 OF 2018

(ON APPEAL FROM HCMP NO 1803 OF 2014)

__________________________

IN THE MATTER OF G, a minor

and

IN THE MATTER OF the Guardianship of Minors Ordinance (Cap. 13), section 26 of the High Court Ordinance (Cap. 4) and Order 90 of the Rules of High Court (Cap. 4A)

__________________________

BETWEEN

G, by his next friend CHAN LUI LUNA Plaintiff
and
BVR 1st Defendant
DIRECTOR OF SOCIAL WELFARE 2nd Defendant
INTERNATIONAL SOCIAL SERVICE 3rd Defendant

__________________________

Before: Hon Kwan VP, Yuen and Au JJA in Court
Date of Hearing: 24 April 2020
Date of Judgment: 13 May 2020

___________________

JUDGMENT

___________________

Hon Kwan VP:

1. I agree with the judgment of Yuen JA.

Hon Yuen JA:

2. This is an appeal by the mother (“the Mother”) of a boy (“G”), now aged 11 years, against the Judgment of Hon B Chu (“the judge”) given on 23 April 2018 (“the Judgment”) dismissing her application by summons filed on 29 April 2016 for an order that G ceases to be a ward of court.

3. G was first made a ward of court on 2 September 2014, and by a consent order made on 5 May 2015 (“the Consent order”), he continued to remain a ward.

4.1. The respondents to the appeal are:

(1) the plaintiff in the proceedings, an officer of PathFinders (“PF”), a charitable and non-government organization which helps migrant mothers in Hong Kong with children, who had made the application for wardship in July 2014 as G’s next friend;

(2) the 2nd defendant the Director of Social Welfare (“DSW”); and

(3) the 3rd defendant International Social Service (“ISS”), an international non-government organization providing services to individuals and families with (amongst other things) social problems arising from geographical separation, which had been appointed by the Social Welfare Department to provide assistance-in-kind to asylum seekers and torture claimants.

4.2. According to the Mother, the identity of G’s father is unknown1.

Background

- Immigration status

5. The Mother originally came to Hong Kong from the Philippines in 2001 to work as a domestic helper, but overstayed after her employment terminated in 2004. Since then she has not been employed in Hong Kong, but has not returned to the Philippines. In February 2009, she was convicted of overstaying.

6. Two months later, in April 2009 G was born. He has remained in Hong Kong since then.

7.1. The Mother made a claim to be allowed to stay in Hong Kong as a torture claimant, but it was rejected in June 2012. She subsequently applied on behalf of herself and G for an order for non-refoulement, but their application was rejected in June 2015.

7.2. Since April 2009, the Mother and G have been on recognizance. As a result of the rejection of their non-refoulement claim, the immigration authority can remove them from Hong Kong, although it was common ground at the hearing before the judge2 that the Director of Immigration has a residual discretion under statute to rescind a removal order and to grant permission for a person to remain in Hong Kong3.

7.3. As the judge correctly stated, the legal position now is that the court cannot interfere if the immigration authority removes G from Hong Kong, but unless and until G is removed, the court is not absolved from its duty to deal with matters affecting his wardship4.

- G’s situation

8.1. Returning to the factual background, as a result of concerns that PF had about G’s well-being the year after he was born, PF made an application in July 2014 as G’s next friend for him to be made a ward of court.

8.2. The application was supported by evidence that included allegations about the Mother’s lack of parenting skills, but as a result of the Consent order, it was not necessary for the allegations to be determined by the court.

9. The uncontroversial facts concerning G may be summarized as follows.

9.1. From the time of his birth in 2009 until July 2013, he was in the Mother’s custody.

9.2. In July 2013, PF arranged for him to be placed with temporary guardians for 12 days. The circumstances under which that placement took place are disputed, but as explained above, the disputed facts did not need to be determined by the court by reason of the Consent order.

9.3. In June 2014, the Mother was remanded in prison, and G (then aged 5) was sent to Po Leung Kuk. There, in August 2014, ISS connected him with a couple Mr & Mrs K. Mr K is Hong Kong Chinese and Mrs K is from the Philippines. They have children of their own. They visited G at the Po Leung Kuk and he got on well with them.

9.4. About 2 months later in October 2014, G started staying with the K family at weekends.

9.5. In February 2015, G started living full-time with Mr & Mrs K (“the foster parents”) and their children at home (“the local home”). Since then, he has been attending a government primary school near the local home, has taken the K family’s Chinese surname, and his preferred language is Chinese. Mr & Mrs K have been supporting him financially. Mrs K gave evidence before the judge that she and her husband would continue to care for G, whether by adoption or under the existing local home arrangement5. The judge was clearly impressed with the home that the family has provided G.

“Mrs K has impressed this Court as being frank and honest and from all accounts, she and her family have provided a warm and comfortable home for G and they have treated G as part of their family for the past 3 to 4 years and that is the first time in G’s life that he has been in a settled home and family for a continuous period of time”.6

10. Meanwhile, the Mother was released from prison in August 2014 and has been living in different places as she was not satisfied with accommodation provided by ISS.

11. By the Consent order in May 2015, the Mother consented to G remaining a ward of court. She was legally represented at the time. The terms of the order included the following:

- G would reside at the local home,

- the Mother would reside at accommodation approved by ISS,

- the Mother would have access to G supervised7 by ISS at her accommodation8 3 times a week,

- therapeutic programs9 would be arranged for G by ISS10,

- the Mother would attend parental counseling sessions provided by ISS,

- monthly reports be provided regarding G’s well-being, and the abovementioned access, counseling etc.

Events after the consent order

12. Unfortunately the Mother failed to attend the majority of parental counseling sessions11 and stopped attending them altogether the next year12 (2016). This was despite the fact that in April that year, she had applied for an order that G ceases to be a ward of court.

13.1. Pending the hearing of her application, the Mother also failed to attend family art therapy sessions with G13. Her repeated absences caused G to be upset such that the therapist recommended that the family art therapy sessions be discontinued, with G to continue to attend individual art therapy sessions.

13.2. In the course of the art therapy sessions, G complained to the therapist that he did not like it when, during the Mother’s unsupervised access, she took him to a smoky flat where she played cards for money14.

13.3. At one stage the Mother asked for access to G to be put on hold, the reason she gave being that she was dissatisfied with the food and travel assistance provided to her by ISS15.

13.4. She also cancelled access to G at one point, believing that in that way, ISS would not be able to report to the court about her16.

Mother’s plans for G

14. As for the Mother’s application that G ceases to be a ward, she first filed an affidavit17 on 29 April 2016, in which she set out short-term and long-term arrangements for G.

14.1. The short-term arrangement involved ISS providing her with accommodation near G’s school18, and unsupervised access to him on weekdays and one day at the weekend.

14.2. The long-term arrangement was as follows:

“I will take My Son back to the Philippines for good after this case is concluded. I will find a village to settle down and do farming work. Villagers are more kind-hearted. I will take care of him by myself. I believe that My Son may not be able to receive education in Philippines in the first one to two years. However, I will try to send him to school after I have settled down in Philippines. We can work it out so long as we can stay together. I believe that [ISS] can provide assistance to My Son in Philippines because they have branch there. Therefore, I believe that if I really have difficulty in Philippines, I can ask for help”. (Emphasis added).

14.3. Subsequently however, in a letter dated 3 November 2017, her solicitors set out a different arrangement, as follows:

“We ... write to provide you with a framework of our client’s plan when she goes back to the Philippines with [G]. Our client would like to settle in Manila and find jobs in laundry or restaurant. She would also enroll [G] into nearby school as soon as she can. She will take care of [G]. As she is not yet back [in] Manila, it is hard for her to put forwards a more concrete plan”. (Emphasis added).

15.1. This led to correspondence in which the Mother was asked to address the following matters (“4 Matters”):

(i) Gainful employment/work prospects for the Mother;

(ii) Accommodation for the Mother and G;

(iii) Education for G;

(iv) Community support for G, such as psychological support and social integration.

15.2. Pausing here, it would be noted in relation to (iii) that G has throughout been studying...

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