S v Guardianship Of Minors Ordinance, Cap.13

Court:Family Court (Hong Kong)
Judgement Number:FCMP131/1999
Judgment Date:20 Dec 2000
FCMP000131/1999 S v. Guardianship of Minors Ordinance, Cap.13

FCMP000131/1999

FCMP 131/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 131 OF 1999

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IN THE MATTER of S, a minor

AND

IN THE MATTER of GUARDIANSHIP OF MINORS ORDINANCE, CAP. 13

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BETWEEN
L Petitioner
AND
W Respondent

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Coram : H.H. Judge Bruno Chan in Chambers

Date of Hearing : 25, 26, 29 & 31 May, 1, 2, & 9 June, 17- 20 July, 10, 11, 14 - 16,
22 - 25 August, 1 September, 31 October 2000

Date of Handing Down of Judgment : 20 December 2000

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J U D G M E N T

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1. This is the parties' contested application for the custody care and control of their 4 years old daughter S born out of their cohabitation. The Father is 35 years of age, whilst the Mother is 37.

2. The parties first met in 1994 when the Father, an insurance agent, visited the nightclub where the Mother was working as a hostess. The Mother at that time was living with her elder daughter M who was born in 1985 out of her previous relationship with another man. The parties soon formed an intimate relationship which led to cohabitation a few months thereafter.

3. The Mother ceased working during the cohabitation and gave birth to S on 13th July 1996. The parties' relationship however was stormy and there were numerous conflicts including 2 occasions when the police was involved with the Father being charged with the offence of assault. The parties eventually separated in about late February 1998 when the Father left after a heated quarrel. On 1st March 1998 when the Father was given access to S, he brought her to the Fanling Jockey Club Clinic for treatment to some bruises which he noticed at the corner of her left eye and her right cheek. S was however referred to the Nethersole Hospital for observation after her bruises were diagnosed to be non-accidental. A child abuse case was suspected and the police and the Social Welfare Department became involved.

4. On 17th March 1998 a multi-disciplinary conference involving social workers, medical doctors and the police was held to look into the case and concluded that it was a highly suspicious child abuse case with the elder half-sister M suspected to be the abuser. The multi-disciplinary committee also recommended that S be removed from her parents and that a care and protection order be sought on her behalf. The application was accordingly made by the Director of Social Welfare and at the 1st hearing on 30th March 1998 in the Shatin Juvenile Court, S was committed to the temporary care of the Chuk Yuen Children's Reception Centre pending a psychological report on the Mother and social investigation report.

5. The parties appeared before the Juvenile Court on 17th April 1998 when it was ordered that S be committed to the care of the Father while the matter was adjourned for further investigation.

6. On 4th May 1998 the parties again appeared before the Juvenile Court when the Magistrate ordered that S be placed under care and protection for 18 months and was to remain in the care of the Father.

7. The Mother who all along insisted that S was never abused applied for review but on 2nd September 1998 the Juvenile Court maintained the original order. S has therefore since April 1998 been living with the Father and looked after by him with the assistance of his family members. She has also been under the supervision of the Social Welfare Department.

8. On 28th July 1999 the Mother obtained legal aid to institute the present proceedings under the Guardianship of Minors Ordinance in the Family Court for custody care and control of S. Her application was opposed by the Father who has also obtained legal aid, whilst the Official Solicitor, as before, has stepped in to represent S to safeguard her interests in the proceedings. S is now studying K-2 at Yan On Kindergarden which is a whole day school. She is being visited by the Mother on Saturdays and would stay overnight at her place on alternate weekend and major school holidays. It is with this background that the matter has now come before me.

9. As is common in custody disputes, the Social Welfare Department was asked to submit an investigation report and in these proceedings there are 2 prepared by different social workers, both recommending that custody of S should be given to the Father. This is however not agreeable to the Mother and hence the matter proceeded to trial. Both parties have filed several affirmations in great length and details, and gave extensive oral evidence at the trial, as did their witnesses as well as the 2 social workers, one of whom a Ms Law who is the current worker was arranged to be the last to give evidence at the suggestion of those representing the parties, so as to enable her to hear the oral evidence of the parties and to assess their respective case before making her final recommendation on S's custody and access.

The Mother's Case

10. The Mother was all along the child's primary carer from the time she was born until she was taken away in March 1998. The Mother says she has since stopped working and is on public assistance to support her living. She is therefore able to devote her full time in providing proper care for S.

11. She insists that there is no risk to the safety of S as the alleged child abuse incident was only an accident and that in fact S enjoys a good relationship with M who could not have abused her. She believes that the Father deliberately used the incident to remove S from her as a revenge for her refusal to reconcile with him.

12. According to the Mother, the Father is not a proper custodial parent for S. Firstly, he works as an insurance agent who often has to meet and entertain his clients after office hours and on weekends. He therefore has to rely heavily on his mother and sisters to look after S who has to spend a substantial amount of time in the paternal grandmother's home. As the grandmother is nearly 70 years of age and not of good health, and that she speaks only the Hakka dialect of which S is not conversant, the child is therefore not well looked after.

13. Secondly, the Father is not a good parent who had never shown any interest in the care and upbringing of S in the past. She does not think he is capable of rendering proper care for S, and has in fact not done so the past 2 years when S was living with him.

14. The Father also has a violent propensity with a history of hitting and assaulting her, says the Mother, during their cohabitation. He has also used abusive and foul language in public and in front of S and has taught her to call the Mother a prostitute. He also fails to recognise the child's needs to maintain close contact with her mother and has made access difficult for the Mother. All of these, she says, show that the Father is not fit to be the custodial parent for S.

The Father's Case

15. The Father does not believe that the Mother is a good parent. She had once worked in the nightclub, and he suspects that she may still be doing so. She is also of low morality and has problem getting along with her own family, and hence she has no family support for her present application.

16. He is convinced that S had been abused by M and is therefore afraid of her, and as the Mother is unable to properly supervise M who has stopped full-time schooling and has behaviour problem, he is concerned about M's bad influence on S if they are to live together.

17. The Father believes that S has been well looked after by him with the assistance of his family members the past 2 years during which she has grown to be a healthy and happy child with good performance at school. Furthermore, there is now a very close relationship between him and S that he does not think it would be in her interest to disturb her present status quo.

18. As aforesaid, 2 Social Welfare Reports have been submitted to the Court, each by a different Social Worker. In the 1st report, by Ms Lui and dated 24th November 1999, S was found to have been in proper care of the Father and paternal grandmother, with positive progress in her performance at school. Ms Lui found that a variation of the care arrangement might unnecessarily up-root the child's well-adjusted life pattern, and that in view of the poor relationship between Mother and M, she was also concerned that the Mother might not be able to handle sibling rivalry between her 2 daughters which might cause unnecessary tension on the growth of S. Ms Lui therefore recommended in her report that S's custody be granted to the Father. She maintained her recommendation at the hearing.

19. The 2nd report, which was dated 20th April 2000, was prepared by a Ms Law who has taken over the case since January 2000 after Ms Lui was posted to another position. In her report Ms Law confirmed that the Child has been under proper care of the Father and that although she found that the Mother has shown genuine concern towards S and is attentive to her physical needs, Ms Law was also concerned about her inharmonious relationship with M, and of the latter's lack of patience with S which she felt was not beneficial to the Child's development. Ms Law therefore supported the Father's application for S's custody in her report, a recommendation which she, like her predecessor, also maintained at the hearing.

The Law

20. This application is taken out under Section 10 of the Guardianship of Minors Ordinance which provides that the Court may make such order regarding the custody of the minor and the right of access to the minor of either of the parents as the Court thinks fit having regard to the welfare of the minor and to the conduct and wishes of the parents, the general principles of which...

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