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HCMP129/2011
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO 129 OF 2011
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IN THE MATTER OF A and B |
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and |
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IN THE MATTER OF Section 26 of The High Court Ordinance and IN THE MATTER OF order 90 of THE Rules of the High Court |
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and |
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IN THE MATTER OF the Guardianship of Minors Ordinance |
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BETWEEN
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H |
Plaintiff |
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and
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N |
Defendant |
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| Before : Hon Poon J in Chambers (Not Open to Public) |
| Date of Hearing : 26 September 2012 |
| Date of Decision : 26 September 2012 |
| Date of Reasons of Decision : 9 October 2012 |
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REASONS FOR DECISION
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A. INTRODUCTION
1. Section 3(1) of the Guardianship of Minors Ordinance, Cap 13 (“GMO”) was amended in April 2012. Before then, it required the court, in any proceedings in relation to the custody or upbringing of a minor, to have regard to the welfare of the minor as the first and paramount consideration and in having such regard give due consideration to the wishes of the minor if it is practicable to do so. The terms “welfare” and “wishes” of the minor are now replaced by “the best interests” and “views”.[1]
2. This is the first hearing on section 3(1) in the High Court since the new amendments came into force. I would like to take this opportunity to restate the general approach to section 3(1) and say a few words on how the best interests of a minor are to be assessed. Hopefully, the need for cross-references to some of the authorities can be reduced. The parties have kindly indicated that they have no objection to the publication of this judgment.
3. The background leading to these proceedings may be summarized as follows.
B. BACKGROUND
4. By order dated 3 March 2011, I made A, a girl, and B, a boy (“the Children” collectively), wards of court and granted the Father interim care and control and the Mother access subject to directions of the court (“the Order”). The Mother now applied to vary the Order, seeking to have interim care and control of the Children with access to the Father subject to directions of the court.
5. At the hearing on 26 September 2012, the parties agreed that interim care and control of the Children should be given to the Mother. I so ordered. They disputed if the Father should be given defined access. After hearing the parties, I granted the Father weekly staying access between 12 noon on Saturday and 8 pm on Sunday.
6. The Father is now 41. He was born and raised in Hong Kong. After completing Form 3 and then a two year certificate course on building, he started working at the age of 18. Initially, he mainly assisted in the family business of decoration, property agency and catering. In more recent years, he has been operating a property agency of his own in the Western District.
7. The Mother is also 41. She was born and brought up in Shantou, the Mainland. She only studied up to Form 1. She then started working at the age of 20, mainly working as a saleslady in Shenzhen. In 1996, she came to Hong Kong on a one-way permit. Since then she had taken up various jobs such as saleslady and cashier.
8. The couple met in 2003. They soon started their cohabitation in October of the same year. They later gave birth to A and B in August 2004 and March 2006. The couple was eventually married in Hong Kong in March 2007. They lived in a flat of modest size in the Western District.
9. At all material times, the Father was the sole breadwinner, engaging in the family business and the Mother, a full-time housewife. They employed full-time helpers until 2008. They took care of the Children together, sharing the child care responsibilities. The Mother was responsible for their daily physical care while the Father dealt with their education-related needs.
10. In mid 2008, marital discord arose. According to the Mother, the Father ceased to pay monthly maintenance to her since then. On the Father’s case, she refused to accept the maintenance. Anyway, it is common ground that although they still lived in the same address, they shared no common matrimonial life.
11. In mid-November 2010, the Mother, apparently without the Father’s consent, took the Children to live in Shenzhen and withdrew them from their school in Hong Kong. In January 2011, the Father commenced the present proceedings. The couple had since then tried but failed to reconcile.
12. On 3 March 2011, I made the Order.
13. The marital relationship did not improve since then. In January 2012, the Mother moved out of the matrimonial home with the Children and lived at a flat in the Western District. Despite the Order which granted him interim care and control, the Father raised no objection. On 23 February 2012, she commenced divorce proceedings[2] in the Family Court. On 30 March 2012, the Father exercised his interim care and control of the Children pursuant to the Order and took the Children home.
14. A is now studying at a primary school in the Western District. B is attending a kindergarten in Central. Both are happy and perform well at school.
C. RECOMMENDATION OF THE SOCIAL WELFARE OFFICER
15. At the directions hearing on 30 April 2012, I called for a social welfare report, which was filed on 29 June 2012. The social welfare worker recommends that the interim care and control of the Children be given to the Mother with defined access to the Father.
16. I next turn to the law.
D. HOW TO APPROACH SECTION 3(1)
17. Section 3(1) of the GMO, in its current form, provides :
“ (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;
(c) where the minor is illegitimate-
(i) a mother shall have the same rights and authority as she would have by virtue of paragraph (b) if the minor were legitimate;
(ii) a father shall only have such rights and authority, if any, as may have been ordered by a court on an application brought by the father under paragraph (d);
(d) the Court of First Instance or a judge of the District Court may, on application, where it is satisfied that the applicant is the father of an illegitimate child, order that the applicant shall have some or all of the rights and authority that the law would allow him as father if the minor were legitimate.”
D1. Equality principle
18. In approaching section 3(1), subject to the position under illegitimacy, the court will always put the competing parents on an equal footing. Any role or gender discrimination is not permissible. This equality principle reflects the shift in social values concerning parental responsibilities and the universal recognition that the long-term best interests of a child is best protected if both parents are, despite the breakdown of their relationship, involved equally. As aptly explained by Hartmann JA in PD v KWW [2010] 4 HKLRD 199 :
“44. There was a time when the parents of a child, more particularly the father, had almost absolute authority over that child. That is no longer the case. The principle that the best interests of the child – not the authority of the parents – must be the paramount consideration is today almost universally recognised. As Lord Fraser said in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 at 170 :
‘ ... parental rights to control a child do not exist for the benefit of the parent. They exist for the benefit of the child and they are justified only in so far as they enable the parent to perform his duties towards the child.’
45. There was a time also, not so long gone, when the roles of the mother and the father in the raising of their child were viewed with almost equal rigidity. The mother was best left to care for the child, certainly when the child was young. The father was best left to provide financial support and to exercise rights of guardianship. As for his contact with the child, visitation was deemed sufficient. Today, such sexist views are obsolete.
46. Social imperatives change. When they are important and lasting, the common law can, and should, keep pace with that change.
47. It is widely recognised today that the long-term best interests of a child are invariably best protected if, despite the breakdown of the marital union, both parents are able to continue to play an equal role in making the important decisions that will determine the child’s upbringing.”
19. In the case of illegitimacy, the position is a little different. At common law, an illegitimate...
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