HCMP 1803/2014
[2018] HKCFI 816
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS 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 the 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 B Chu J in Chambers (Not Open to Public) |
| Dates of Hearing: 22, 23, 24, 25 and 26 January 2018 |
| Date of Judgment: 23 April 2018 |
_______________
J U D G M E N T
_______________
Introduction
1. These wardship proceedings concern a boy G who has just reached 9 years of age. He has been a ward of this Court since when he was 5 years old. His lawful and natural mother, the 1st defendant (“Mother”), is now seeking an order that he ceases to be a ward of this Court and other interim orders.
2. The proceedings were issued in July 2014 by Ms Luna Chan (“Ms L Chan”), as next friend of G. Ms L Chan was the then Chief Operations Officer of PathFinders, a charitable and non-governmental organisation, and its services include providing migrant mothers in Hong Kong with the support to ensure that the best interests of their children are realized. She left PathFinders in about middle of May 2017.
3. The Director of Social Welfare (“DSW”) and the International Social Service (“ISS”) have respectively been made the 2nd and 3rd defendants herein. ISS Hong Kong (“ISSHK”) is a headquarter delegation of ISS in Hong Kong.
4. The Mother, is a Philippine national who worked in Hong Kong between 2001 and 2004. She remained in Hong Kong as an overstayer when her work visa expired on 11 May 2004. She then became pregnant. She apparently gave herself up to the Immigration Department in February 2009. On 7 February 2009, she was convicted of the offence of “Breach of condition of stay” and was sentenced to imprisonment for 4 months.
5. G was born in 2009 at the Queen Mary Hospital, before the Mother completed her sentence.
6. Shortly after G’s birth, the Mother and G were referred to the Immigration Department for repatriation formalities but were released on the same day on recognizance[1]. On 17 August 2009, a removal order was issued against the Mother and also G (“Removal Order”)[2].
7. According to the Mother, she first lodged claims on behalf of herself and G under Article 3 of the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment with the Immigration Department on 11 June 2010 (“CAT Claim”). It would appear that in October 2010, the Mother had also approached the Sub-Office of the United Nations High Commissioner for Refugees (UNHCR) for refugee claim but this was refused in April 2011[3].
8. The Mother has produced a copy of the questionnaire dated 11 September 2011 in connection with her CAT Claim (“CAT Questionnaire”)[4]. Her CAT Claim was rejected on 31 June 2012[5].
9. On about 20 February 2014, the Mother was found working illegally in a restaurant, and she was charged with “taking employment while being a person in respect of whom a removal order is in force” and on 4 June 2014, she appeared at the Shatin Magistracy and was ordered to be remanded in prison. On 8 August 2014, she was convicted and sentenced to a suspended sentence of 2 months, but was transferred to Castle Peak Bay Immigration Centre (“CIC”) and was only released on 23 August 2014[6]. According to the Mother, she made a further non-refoulement claim for herself and G on 10 December 2014 and lodged Supplementary Claims Forms for herself and G on 5 January 2015 (“Non Refoulement Claim”). She attended a screening interview in May 2015. Her Non Refoulement Claim was later rejected on 8 June 2015[7]. There was no further appeal by the Mother.
10. Since 27 April 2009, the Mother and G have been on recognizance. I understand that at present, she and G have to report to the Immigration Department every 6 weeks on Friday mornings.
Brief Background
11. The background of these wardship proceedings has been set out in detail in various earlier rulings/decisions/judgments of this court. In the present judgment, for easy reference, and save where otherwise indicated, I shall adopt the same abbreviations therein.
12. Briefly, G’s case was first referred to the Pathfinders in February 2010 by ISSHK over concerns over G’s care. The Mother and G were referred to ISSHK as ISS has been commissioned by the Director of Social Welfare under the “Humanitarian Assistance Programme” to provide humanitarian assistance/services to overstayers.
13. Without going into the details of the intervening period of about 4 years at this stage, and those events leading to the issue of these proceedings, after the Mother was arrested and detained by the police on 4 June 2014, G was admitted to the Po Leung Kuk residential care home. He was 5 years old at the time.
14. At the time of the issue of these proceedings, the Pathfinders had made some serious allegations about the Mother, including (i) failure to supervise; (ii) physical abuse; (iii) failure to provide adequate food; (iv) making false reports of abuse and neglect to social workers; (v) verbal abuse and threats[8]. The Mother denied all such allegations. The parties have agreed that due to the passage of time, there needs no longer be a fact-finding trial in respect of the PathFinder’s then allegations.
15. The Mother was later released on 8 August 2014 upon being given a suspended sentence, but thereafter, G did not return to her care and remained in Po Leung Kuk.
16. A foster home was later identified for G. The foster parents, Mr and Mrs K (“Foster Parents”), were first introduced to G in August 2014 and on 6 October 2014, this Court approved an arrangement for G to reside with the K family during weekends initially. As Mr and Mrs K were willing to take G full time, G began living with them since about 12 February 2015, where G has remained until the present.
17. G attended a local kindergarten initially and has since September 2015 been attending a Government primary school. He is now in Primary 3.
18. A trial in these proceedings was originally fixed for 10 days, 6 days in May 2015 and another 4 days in July 2015 (“2015 Trial”). At the commencement thereof, the parties started discussing and eventually, the matter was resolved by all the parties consenting to an order on 5 May 2015 (“Consent Order”), and the remaining dates for the 2015 Trial were vacated.
19. Under the Consent Order, among other things, G was to continue to remain a ward of this court, and he was to continue to reside with Mr and Mrs K. The Mother was allowed access to G under the supervision of the ISS staff every Monday, Wednesday and Saturday in the manner set out in the Consent Order. The Mother was further ordered to attend parenting counselling sessions provided by ISSHK.
20. The arrangements for the Mother’s access to G under the Consent Order were subsequently varied on 4 November 2015 (“Further Order”). Pursuant to the Consent Order and the Further Order, ISS had prepared (“Monthly Reports”) which covered the following subjects:
(i) G’s general well-being;
(ii) The Mother’s access to G;
(iii) The Mother’s counselling and parenting sessions;
(iv) Observations and recommendations including future access of the Mother to G.
21. Then 6 months later, on 3 May 2016, the Mother issued her present summons for G to be de-warded[9] (“Mother’s Summons”).
22. The access arrangements in the Further Order have since been varied on a number of occasions, the last time on 3 January 2017. Since 10 August 2017, the Mother has been having unsupervised access and since 3 January 2018, she has been having interim unsupervised overnight access to G.
23. At the present trial of the Mother’s Summons, Mr Russell Coleman SC and Mr Shaphan Marwah appeared for Ms L Chan and the PathFinders. Mr Paul Shieh SC and Ms Monica Chow appeared for the Mother. Mr Enzo Chow appeared for the Director of Social Welfare and Ms Frances Irving appeared for ISS.
The Agreed Scott Schedule
24. Briefly, the issues in the parties’ agreed Scott Schedule included the following: -
(i) Given the grounds upon which G was initially made a ward of court are no longer in issue, whether wardship should cease;
(ii) How the Court’s wardship jurisdiction should be balanced against the Mother’s basic right to a family life with G;
(iii) Whether it is unrealistic and unfair to assess the Mother’s parenting style and skill, taking into account her background and culture;
(iv) Whether it is against G’s interest to prolong his separation from the Mother.
The legal principles
25. Section 3 (1) of the Guardianship of Minors Ordinance, Cap 13 sets out as follows:
“In relation to the custody of upbringing of a minor … 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;”
26. As Lord MacDermott has said in J v C [1970] AC 668, “paramount consideration” must mean more than that the child’s welfare[10] is to be treated as the top item in a list of items relevant to the matter in question[11].
27. In considering what is the best interest of a child, the Law Reform Commission of Hong Kong’s Report on Custody and Access of 7 March 2005 has recommended a “welfare checklist” which has been contained in the proposed legislation, namely Children Proceedings (Parental Responsibility) Bill of 25 November 2015 (“Checklist”) and which are:
“(a) the ascertainable views 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 changes in the child’s circumstances;
(e) the child’s age, maturity, sex, social and cultural background and any other characteristics of the child 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) [a broader formulation along the lines of] 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 under this Ordinance in the proceedings in question;
(l) any other fact or circumstance that the court thinks is relevant.”
28. Although the Checklist is not yet part of Hong Kong legislation, it has been commonly referred to by judges in our Family Court. The Checklist has also been endorsed by Jeremy Poon J, as he then was in H v N [2012] 5 HKLRD 498, subject to the “three caveats” set out by him[12].
29. As pointed out by Ms Irving, the Court in wardship proceedings is acting under the doctrine of parens patriae, and that the Court has wide powers to make whatever orders it considers to be in the ward’s best interests and that the Court is not confined to proposals and submissions of the parties[13].
30. Although Hartmann JA, as he then was, has held in M and Y [2009] 5 HKLRD 597 that warship was an aspect of the court’s inherent jurisdiction only exercised when there was a real, imminent or immediate need to protect the true interests of a child, when that protection might not readily be derived from any other source[14], Lam V-P in CLP v CSN [2016] 5 HKLRD 530 has made it clear that M v Y is not to be regarded as imposing an absolute prohibition against application for wardship when the immediate need of a child has already been catered for, and although it may be a relevant factor, it should not be an absolute fetter on the overall discretion. As Lam V-P has said, the crucial consideration is whether there is any real need for the court to exercise the wardship jurisdiction in the interest of the child and it is a broad discretionary jurisdiction with the ability to develop in light of prevailing social conditions, and the flexibility of the common law can permit developments of the law which may not have been envisaged in earlier cases[15].
31. There is no dispute to the above general principles. Thus, the fact that the initial grounds upon which G was made a ward are no longer in issue will not necessarily mean that wardship should cease, and this is only one of the matters this Court will have regard to in considering whether to continue the wardship.
32. As pointed out by Ms Irving, the importance of a child being brought up by a biological parent has been examined in recent English cases[16] and the unequivocal conclusion is that there is no presumption in favour of the biological parent, and that the welfare(or best interests) of the child is the paramount consideration.
33. There is no real dispute in relation to the above general principles. Although one of the issues in the Scott Schedule raised by the Mother was the Mother’s basic right to a family life with G, there were no further submissions made on behalf of the Mother in this respect. Suffice to say that, so far as G’s rights are concerned, they have been set out in the United Nations Convention on the Rights of the Child, and Article 9 (1) states that a child shall not be separated from his or her parents against their will without the determination of competent authority that such separation is “necessary for the best interests of the child”.
34. With the above principles in mind, I turn to the facts of this case.
G’s current immigration statusin Hong Kong
35. Article 24(2)(4) of the Basic Law provides for the acquisition of permanent resident status by persons not of Chinese Nationality and article 24(2)(5) provides for persons under 21 years of age born in Hong Kong of those residents listed in article 24(2)(4) before or after the establishment of the HKSAR.
36. However, as pointed out by Mr Shieh, under section 2(4)(a)(vi) of the Immigration Ordinance, Cap 115, a domestic helper is precluded from building up the continuous seven year period of ordinary residence for the acquisition of permanent resident status. The Court of Final Appeal has held in Vallejos and Domingo v Commissioner of Registration [2013] 2 HKLRD 533 that in effect foreign domestic helpers could not acquire right of permanent resident in Hong Kong by virtue of their presence in Hong Kong pursuant to a domestic helper visa.
37. Even though it appeared that Ms L Chan was under a misapprehension about G’s status under the law, it was ultimately not disputed by Mr Coleman or Ms Irving that G is not be entitled to be a HKSAR permanent resident by reason of his birth in Hong Kong, nor does he have a right of abode, and he is subject to the Removal Order.
38. It has been submitted on behalf of G that the Director of Immigration (“Director”) has the power to rescind the Removal Order against G under section 46 of the Interpretation and General Clauses Ordinance, Cap 1 and that the Director has broad powers to grant permission for a person to remain in Hong Kong under section 11 (2) of the Immigration Ordinance, Cap 115, under (1) the Study Visa Policy; or (2) the Dependant Visa Policy; or (3) residual discretion.
39. However, as Mr Chow pointed out, at the moment G does not fall within either (1) or (2) above.
40. It is clear from various authorities that the wardship jurisdiction of the court shall not be invoked to limit or confine the exercise by the relevant authority of its powers in relation to a child who is subject to immigration control.
41. In particular, Mr Chow referred this Court to Re C (a minor) [1989] 2 HKLR 652. In that case, the mother, an illegal immigrant, cohabited with the father, a Hong Kong resident and gave birth to a daughter in Hong Kong Kong. Later both the mother and the child were arrested by the police and detained in custody and a removal order was made against the defendant and the child by the Immigration Department on the grounds that neither had the right of abode nor the right to land in Hong Kong. The father then issued an originating summons to make the child a ward of the court, to seek care and control of the child and to seek an order that the child be not removed from the jurisdiction without leave of the court. The then Attorney General applied to be joined as a party interested in the wardship proceedings and to strike out the father’s originating summons. Jones J ordered that the originating summons be struck out as an abuse of the process of the court. It was held that that there were no exceptional circumstances in that case which could justify any interference with the duties of the Director or to review the making of a removal order, and that the functions of the Director should not be hamstrung by wardship proceedings intended to restrict the powers of the Director[17].
42. Mr Chow also referred this Court to Re A (Care Proceedings: Asylum Seekers) [2003] EWHC 1086 (Fam) where the mother and father and two children entered the UK from a non-European country and their applications for asylum were refused. Removal directions were given and the father was detained by the Home Office. The father had implied that he might kill himself, the mother and the children, and the mother later took an overdose and was admitted to hospital. The local authority was granted an ex parte interim care order in relation to both children together with an emergency protection order and issued care proceedings later based on the fears for the safety of the children if they were reunited with the parents. However, the children and the mother were reunited shortly thereafter, moving to live in a family home supervised by the local authority. Munby J, as he then was, discharged the interim care orders and dismissed the care proceedings, and held that apart from proceedings under the Adoption Act 1976, whatever jurisdiction he might be exercising as a judge of the Family Division could not make an order which had the effect of depriving the Secretary of State of his power to remove a child or any other party to the proceedings[18].
43. About a year later, in another case R (Anton) v Secretary of State for the Home Department: Re Anton [2005] 2 FLR 818, Munby J had however further expressed that:
“This does not mean that the family court cannot make a residence order in respect of a child who is subject to immigration control or cannot make such a child a ward of court. Nor does it mean that the family court cannot make a care order in respect of such a child. What it does mean, however, and this is the important point, is that neither the existence of a care order, nor the existence of a residence order, nor even the fact that the child is a ward of court, can limit or confine the exercise by the Secretary of State of his powers in relation to a child who is subject to immigration control[19].”
44. Mr Chow further referred to Mok Chi Jung & Anor v Director of Immigration [2001] 2 HKLRD 125, A Cheung J, as he then was, held that the United Nations Convention on the Rights of the Child could not be invoked as the basis of a legitimate expectation that the Government would consider the interest of the children in deciding to remove their parents who had no right to stay in Hong Kong.
45. Mr Chow thus submitted that there is no question of whether or not G will be removed from Hong Kong pursuant to the Removal Order, and it is merely a question of how soon he will be removed.
46. Mr Chow had also referred to the case of Islam Rajas Rais v Director of Immigration, HCMP 881/2017, 26 June 2017, in which Au J’s reasons for refusal to grant leave to the applicant to apply for judicial review were later set out by Lam VP, and Au J had referred to the Director having a residual discretion to consider (but he is not obliged to so consider) whether to grant the permission to a foreign applicant to enter and reside in Hong Kong on exceptional humanitarian and compassionate grounds.
47. In my view, the facts of the present case can be distinguished from Re C or Re A in that there was no allegation, nor, as seen later in this judgment, any sufficient evidence that these wardship proceedings were instituted by Ms L Chan on behalf of G in order to thwart the powers of the Director. As will be further seen later, these proceedings were issued at a time when the Mother was arrested by the police and G had to be sent to Po Leung Kuk with no one assuming or able to assume parental responsibility over him at that time. Further, there has not been any application made by the Secretary of Justice on behalf of the Director to intervene or to join in these proceedings, or to strike out these proceedings notwithstanding the Removal Order.
48. Even though at the moment, G does not fall within (1) the Study Visa Policy or (2) the Dependant Visa Policy, it is, however, common ground between all the parties that the Director does have a wide residual discretion to permit G to stay in Hong Kong. It is also not disputed that the Director has power to rescind a removal order, grant outside policy permission to remain and to give an ID card to persons without any passport.
49. However, this Court accepts and emphasizes that the Director’s residual discretion is a wide and unfettered one and as Mr Chow has pointed out in his closing submissions, such discretion should not be interfered with by this Court, and how such power should be exercised lies entirely with the Director. However, as seen in Re Anton, this does not mean that this Court cannot make an appropriate order in the best interests of G in these proceedings.
Events leading to the issue of these proceedings
50. As mentioned earlier, G’s case was first referred to the Pathfinders in February 2010 by ISSHK over concerns over G’s care. G was then, amongst other things, diagnosed as being underweight for his age and suffered skin allergy and both the Mother and G were confined in Queen Mary Hospital on 21-22 February 2010 for diarrhea. The Mother and G were at that time staying with friends in a flat or a boarding house with ISS housing support and food.
51. According to a form dated 3 March 2010 prepared by Pathfinders at the time (“2010 Form”)[20], the Mother’s then intention was to seek help for temporary foster care for G while she tried to find work illegally and she had told Pathfinders that she had no support network back home and that she was afraid of people chasing her for her unpaid debts. In relation to G’s father, according to the information provided at that time by the Mother to the Pathfinders, his nationality was “Filipino tourist” and he stayed with the Mother in her flat for two weeks in 2008, and then abandoned her. Further according to the Mother, G’s father was from Manila with changed identity (not real name/contact details)[21].
52. In the 2010 Form, there was also a note that the Mother was inclined to entrust G to a friend/flatmate called Norma who could take care of G in her home in Cagayan de Oro (in Southern Philippines) as Norma was going home for good[22].
53. Thereafter, between March and June/July 2010, according to PathFinders, they provided various services to assist the Mother and G, but the Mother did not keep her appointments and PathFinders then lost contact with her.
54. The Mother made contact with the Pathfinders again in January 2013. Ms L Chan had in her 1st affirmation produced a “New Client Information Form” dated 28 January 2013 signed by the Mother (“2013 Form”)[23]. In this form, the Mother stated that the nationality of G’s father was “HK (friend employer)” and that his immigration status was “HK PR China” and that he was located in Hong Kong although the Mother had lost contact with him[24].
55. The “needs” indicated by the Mother at that time were “Basic Needs” such as baby supplies, transportation and food, and “Support System” of friendships and relationships with service providers (eg ISS).
56. According to the Mother, she contacted PathFinders again in 2013 because she needed help for G’s schooling, and ISS could not help with paying the whole sum. The Mother said she did not contact PathFinders about giving up G. The Mother however also said she was not satisfied with her then boarding arrangements at Temple Street (“Temple Street Flat”) which was arranged by ISSHK.
57. According to Ms L Chan’s 1st affirmation, thereafter between about end of January and June 2013, PathFinders attempted to arrange 3 meetings with the Mother, but she failed to turn up. According to the Mother, she said the PathFinders were not able to help with her accommodation.
58. Then on 2 July 2013, the Mother called PathFinders again and said that she felt she was unable to care for G. The events between 2 to 5 July 2013 , leading to G being placed in the care of temporary guardians, Mr and Mrs Yau Leung Choi, (“Temporary Guardians”) were set out in detail in Ms L Chan’s 1st affirmation[25]. G stayed with Mr and Mrs Yau from 6 to 18 July 2013.
59. This turned out to be not a satisfactory arrangement. The Mother had told the social worker of the Social Welfare Department, Ms Virginia Chan, who prepared the 3 SWRs prior to the 2015 Trial that G exhibited unstable emotions after being placed with the Temporary Guardians in a place in Yuen Long. When Ms Virginia Chan tried to pay a visit to the address given for the Temporary Guardians, she found only a shabby village house with an almost completely dark room and was told that there was a family of three renting that room several months ago, a Chinese man, an Indonesian woman and a 2 year old daughter but they had already moved out.
60. When Ms Virginia Chan tried to telephone the mobile number of Mr/Mrs Yau given to the Mother by the PathFinders, she was told there was no such person by the name of Mr Yau Leung Choi.
61. However, by the time when Ms Virginia Chan tried to contact the Temporary Guardians and to visit their home, this was in September 2014, over a year after G was placed there.
62. Ms L Chan was cross examined over the arrangement with the Temporary Guardians during the trial. She admitted that she had never visited the address given by Mr Yau and Mrs Yau, and that she was unaware of the details provided by Ms Virginia Chan concerning the unsatisfactory condition of the address until she read the 1st SWR. Ms L Chan explained that Mrs Yau was a client of PathFinders seeking help from them concerning her own daughter, and that Mrs Yau had attended about 35 education/parenting classes and had helped other clients of PathFinders with their children. Ms L Chan said that the way Mrs Yau interacted with her then 2 year old daughter, and other children was at the time a positive indication to her that Mrs Yau could provide care to mothers and their children.
63. Ms L Chan also explained that one day in July 2014, one of PathFinders’ then officers, Cathlyn McNabb, had accompanied the Mother and G to CIC because the Mother said she was very scared to go there by herself. The Mother and G were again placed on recognizance and after attending CIC, the Mother and G went to the Social Welfare Department in Yaumatei to discuss what arrangements could be made for the care of G. Ms L Chan said the Mother had mentioned to PathFinders that G had stayed with a brothel operator in Temple Street Flat and that she was drinking and depressed and wanted to give up G as the place where she was staying was unsafe.
64. According to Ms L Chan, various options were discussed at the SWD office, but a Mr Leung at SWD said although he was willing to help, he was unable to do it as G had to be referred to ISS. However the case worker at ISS was not available and the Mother then simply wanted to leave G with Cathlyn McNabb, who informed her team at PathFinders to find help for the Mother. The team eventually spoke to Mrs Yau who was willing to help and to come all the way from Kam Tin immediately to meet with the Mother and G.
65. Ms L Chan said she was in the office waiting and Mrs Yau arrived at about 7 pm with her daughter, and the Mother and G arrived later. The Mother was very happy that some one was found to be able to look after G and expressed appreciation to the PathFinders’ team and thanked them for helping her and G to find emergency placement. Ms L Chan further explained that she and her team tried to prepare G for his temporary stay with Mr and Mrs Yau and arranged for G to play with the Yaus’ 2 year old daughter. She had suggested the Mother to accompany the Yaus and G back to Kam Tin at the time, but the Mother declined saying she was tired, and after signing the consent form, the Mother left the PathFinders’ office immediately.
66. Ms L Chan said she recalled clearly that it was an emergency situation, that the Mother wanted to leave G with them, and it was under those circumstances that the PathFinders team contacted the Yaus. She said the Mother had met Mrs Yau on an earlier occasion at the PathFinders’s office. Further, according to Ms L Chan, the Mother was obviously distressed and very tired at the time and left immediately after signing all the documents, and G was also extremely upset and had yelled and cried when the Mother simply left and rushed away leaving him at the PathFinders’ office. Later Ms L Chan and her team had to try to calm G down by arranging for him to play with the Yaus’ 2 year old daughter.
67. Ms L Chan became emotional and burst into tears during trial when it was put to her that she did not see any need to do any due diligence about the Yaus. She emphasised that it was an urgent situation when someone wanted to simply leave her child in a brothel or with the PathFinders. She said she was told by SWD that they could not place the child with Po Leung Kuk and there needed to be a referral to ISS but the ISSHK’s case worker was not available.
68. The Mother had signed two declaration forms consenting to the appointment of the Temporary Guardians on 5 July 2013 (“Declaration Forms”)[26]. It can be seen the Declaration Forms that the Mother had also signed an Initial Declaration of Birth Parent to put G up for adoption in Hong Kong (“Initial Adoption Declaration”)[27].
69. The Mother denied in her 1st affidavit that she had ever told Cathlyn McNabb about any intention to give up G or that she had drinking habit, or that G was kept by a brothel operator. The Mother said it was the PathFinders who asked her to sign on the Initial Adoption Declaration to put G up for adoption if she wanted to place G with a temporary guardian. The Mother claimed that she was told to sign on a paper without particulars. The Mother further said after signing the requested documents, the PathFinders took G away and that she never met Mr and Mrs Yau and that the PathFinders never invited her to visit the Yaus and that she did not have the address of the Yaus. She had also said that she did not have the telephone contact of the Temporary Guardians.
70. Although the Mother was not really cross examined on all the details of the events on 5 July 2013 alleged by Ms L Chan leading to G’s placement with the Temporary Guardians, it would appear from Ms Virginia Chan’s 1st SWR, there was a mobile telephone number of Mrs Yau in the information given to the Mother by PathFinders at the time[28]. In fact, the telephone number was stated on the Declaration Forms which were signed by the Mother[29]. The address of the Temporary Guardians was also stated in Mr Yau’s declaration[30].
71. What the Mother said about not being provided with the Yaus’ address and telephone number thus appeared to be not truthful. It was also quite clear from the Declaration Forms that the Mother had the right to terminate the temporary custodial arrangement and guardianship at any time by notifying the Temporary Guardians in writing. Further, it was stated therein that the arrangement was expected to be terminated within 2 months of the date of the signing the Declaration Forms.
72. There was no sufficient evidence as to why the Mother would be prevented from contacting G while G was placed with the Temporary Guardians, had she wanted to. The Mother had herself said, she had seen G at PathFinder’s office on 8 July 2013 although she said it was after her begging Cathlyn McNabb. On the Mother’s own evidence, there was also another meeting arranged for her to see G on 12 July 2013 which eventually did not take place as the Mother was told that G was sick, but later she was told that G was naughty. Finally, she met G on 19 July 2013 when they had to attend CIC again to extend their recognizance and the Mother said that was the first time she met Mrs Yau who brought along G, but later she admitted she did meet Mrs Yau on an earlier occasion prior to 5 July 2013.
73. Anyway, on 19 July 2013, the Mother took G away after reporting to CIC without returning him to the Temporary Guardians or the PathFinders. PathFinders subsequently called the police. When the police arrived, the Mother said she wanted to cancel all documents she had signed at the PathFinders’ office. The police decided not to intervene, and G was allowed to return to the Mother.
74. Having considered the evidence, I find there was no sufficient evidence that the Mother did not understand the effect of the documents that she had signed at the PathFinder’s office on 5 July 2013. Further, whether she met with the Yaus on 5 July 2013 or not and whatever she said subsequently or now, even on her own evidence she did sign those documents at the PathFinders’ office. In any event, she did leave the PathFinders’ office without G, having gone there with G.
75. In my view, she was clearly dissatisfied with her then accommodation at the Temple Street Flat and had consented to G being placed temporarily with a temporary guardian/Yaus. I accept Ms L Chan’s evidence that it was at the Mother’s request and with her consent and under an urgent situation that the Yaus were contacted by PathFinders to provide temporary care for G on 5 July 2013. I find that the PathFinders were only trying to help the Mother at the time when she was distressed and wanted to leave G with the PathFinders. I accept Ms L Chan’s evidence that she had to make a temporary arrangement at very short notice and it was unfortunate that the temporary arrangement turned out to be unsatisfactory and later caused further distress to G.
76. Anyway, after the above incident, the Mother said she lost faith in the PathFinders. She did not attend the appointments which PathFinders had arranged for G and that PathFinders encountered difficulties in maintaining regular contact with the Mother. However, notwithstanding what the Mother said, it would appear that on 17 September 2013, the Mother herself called PathFinders again to seek help.
77. By December 2013, PathFinders had serious concerns over the Mother’s ability to care for G and had written to DSW on 5 December 2013 setting out all their concerns over G in detail and urging DSW to apply for a care and protection order of G under the Protection of Children and Juveniles Ordinance, Cap 213. Ms Fanny Fung Hing Sum, a Senior Social Work Officer (“Ms Fung”), sent a short reply on behalf of DSW on 13 December 2013 that the case was receiving their serious concern and that ISS had been instructed to handle the matter. Having heard no further from DSW, on 1 March 2014, PathFinders wrote to DSW again providing new information and expressing their concern. Ms Fung replied on behalf of DSW on 10 April 2014 that there was no substantiated evidence of child abuse/neglect and that ISS was still actively looking after the welfare of G, and that the case was receiving serious attention by ISS[31].
78. According to the record of the PathFinders, Ms L Chan and Cathlyn McNabb had paid an unannounced visit on 2 May 2014 to the Temple Street Flat[32] and found the room where the Mother and G dirty and untidy. The Mother and G were not there.
79. It turned out by then, according to the Mother, as PathFinders were not able to help her with her accommodation, she had arranged for her and G to move to a flat in Sham Shui Po in March 2014[33] (“Sham Shui Po Flat”).
80. Anyway, it was clear from Ms Fung’s reply on 10 April 2014 that DSW saw no reasons to apply for a care and protection order of G. PathFinders then decided to seek legal advice. PathFinders were granted legal aid and their assigned solicitors wrote to DSW on 9 June 2014 to set out again PathFinders’ concerns over G and asked DSW to formulate a permanency plan for G and further asked DSW what steps they were taking to provide for G. By this time, the Mother had been detained and G had been sent to Po Leung Kuk. This time, there was a more detailed reply from DSW on 12 June 2014 which revealed that they had in fact arranged for G to attend the Sai Ying Pun Maternal and Child Health Centre on 4 April 2014 but the assessment was only conducted by a nurse at the Centre and which revealed no problems with G. Then there was another assessment by a doctor at the Centre on 30 April 2014. The doctor opined that there was no child abuse element but was concerned about the Mother’s parenting adequacy. The doctor then made two referrals for G and the Mother and appointments were made in June but by then the Mother had been arrested[34].
81. It was not clear what information was provided to the doctor by DSW but clearly the doctor had concerns. PathFinders wrote a further letter on 24 June 2014 to DSW setting out all the details in relation to G’s care history according to the records of their social workers, and again urged DSW to carry out a proper investigation and to arrange for G to receive therapy. Eventually, there was a meeting held between PathFinders and DSW and also ISS on 4 July 2014, and Ms Fung said in her affirmation that there was no suggestion by any party at this meeting that G should be made a ward of the court and/or DSW should be charged with interim care and control of G. It was Ms Fung’s evidence that the parties came up with an agreed welfare plan during the meeting for G and the Mother.
82. In fact, two days prior to the above meeting, a probation officer of the Shatin Magistrates Court had visited the Mother, and the Mother had written a letter to ISSHK, stating that she preferred ISSHK to settle her son’s situation during her remand in prison[35].
83. There was some disagreement about what was agreed at the meeting on 4 July 2014 and certain parts of the minutes of the meeting prepared by DSW but what seemed to be confirmed by both Ms Fung and Ms L Chan was that (1) the Mother was an inadequate carer for G and (2) that PathFinders, ISSHK, DSW and the Mother could and should still work together in order to arrange, for example schooling and therapy sessions for G.
84. However, according to PathFinders, the proposal from DSW that G should be kept in various types of care until the Mother’s release followed by a trial period of G being placed in the Mother’s care was not agreed by the PathFinders[36]. The PathFinders said they did not agree because, amongst other things, they did not see any realistic prospect of the Mother’s behaviour changing upon her release from prison.
85. It was under the above circumstances that Ms L Chan issued these proceedings on behalf of G on 24 July 2014.
86. Ms Fung on the other hand said DSW saw no justification for G to be made a ward and/or for DSW to be charged with the interim care and control of G.
87. PathFinders’ allegations were based on the case notes of their workers. It was the Mother’s case that the PathFinders were trying to build a case against her.
88. The Mother had referred to one of the notes referring to an email of 18 April 2010[37] in which a worker at PathFinders called “Mimi” had said that the Mother had chosen to ignore their advice and not to sort out the medical waiver, and that since G was the one who needed protection, they would need to follow through with certain measures to help G, and asking that when they next had a similar situation, whether they could go back to ISS and to jointly decide on a way forward for G, eg next time when G was sick, to admit him to the hospital with PathFinders’ help and “to build a case against the Mother”.
89. The above email was also referred to by Ms Virginia Chan in her 2nd SWR and she appeared to be also of the view that after that email, a case was building up against the Mother[38].
90. However, it was clear from the earlier case notes prior to Mimi’s internal email of 18 April 2010 that the Mother was at that time desirous of giving up G for adoption and the Mother was told she had 3 months in which she could change her mind. It would appear that the Mother did later express she was not ready to make an adoption decision but wanted child care service so that she could work. Further, it would appear she was advised by PathFainders’ case workers of a plan of action, which included applying for ISS waiver to settle her hospital bills.
91. In the internal email of 18 April 2010, PathFinders indicated that they were of the view that the Mother was using G as a bargaining chip, in that the Mother had ignored their advice in applying for medical waiver from ISS and instead expecting PathFinders to pay for her private doctor’s fee as she thought that PathFinders had lots of money and that she could just ask, and that the Mother could not be trusted. What was said about “building up a case against the Mother” had to be seen in the light of the PathFinders’ complaints that the Mother was using G as a bargaining chip for seeking payments from PathFinders.
92. In any event, the above emails/case notes were in 2010. As mentioned earlier, the Mother then failed to turn up for appointments with PathFinders and lost contact. After the Mother made contact again in January 2013, Cathlyn McNabb became her new case worker on 8 April 2013.
93. Ms Virginia Chan in her 2nd SWR had referred to case notes of Cathlyn McNabb from 22 April 2013 to 8 April 2014. The Mother complained that there were cultural differences and age differences between Cathlyn McNabb and her. However, what was clear even from the 1st SWR and 2nd SWR was that in 2013, the Mother was living with G in the Temple Street Flat at the time and that even on the Mother’s own evidence, the place was dirty and that there were men and women staying around the vice-establishment near her abode on Temple Street[39]. It was quite clear that where the Mother was then living, namely the Temple Street Flat was undesirable, and that the Mother had said in March 2014, she and G moved to a room which they had to share with another co-tenant in the Sham Shui Po Flat.
94. Further, the Mother had admitted to Ms Virginia Chan that she had lied to the PathFinders that she was depressed and that she did not like G any more. She had also admitted lying because she wanted PathFinders to help her in terms of arranging G to study and receive education[40].
95. Having considered the evidence, I find there was no sufficient evidence that PathFinders were “building up a case” against the Mother. I further find that even if there was no abuse of G on the part of the Mother, the issue of these proceedings was due to a serious concern on the part of PathFinders over G’s welfare in light of the Mother’s parenting/care history of G, and G’s then living condition. I find these proceedings were not issued with any intention on the part of Ms L Chan to thwart any powers of the Director, and further the proceedings were issued at a time when there was a real and immediate need for a settled care plan for G.
After issue of these proceedings until the Consent Order
96. After the issue of these proceedings, it would appear that ISSHK started to look for a “local home” for G. A local home was later identified for G by ISSHK and the Foster Parents, Mr and Mrs K, were first introduced to G on 4 August 2014 and this was at a time when G was still at Po Leung Kuk, and the Mother was being detained and her period of detention was at the time uncertain.
97. The 1st direction hearing in these proceedings took place on 2 September 2014. By then, the Mother had been released and she had applied for legal aid shortly before the 1st direction hearing. She turned up in person at that hearing. G was still staying at Po Leung Kuk at the time. There was no objection from the Mother at the time to G being a ward of the Court and for G to continue residing in Po Leung Kuk.
98. This can also be seen from Ms Fung’s 1st affirmation of 27 August 2014 that after release from detention, the Mother had raised no objection to G being continued to be placed at Po Leung Kuk[41].
99. On 2 September 2014, this Court thus ordered, amongst other things, that G continued to be a ward of this Court and that ISSHK be granted interim care and control of G, and that G was to continue to reside at Po Leung Kuk until further order, and the Mother was to have access under the supervision of ISS, and this Court also called for a social welfare report. The next direction hearing was fixed for 6 October 2014.
100. Then, it turned out that there had been two incidents at Po Leung Kuk on 12 and 18 August 2014 involving another boy and G behaving improperly. This in fact led to Ms L Chan issuing a summons returnable for hearing on 6 October 2014. At this hearing, the court made various orders, including that Po Leung Kuk had to submit their own report on the incidents, and G being examined by a clinical psychologist at the Social Welfare Department on the incidents at Po Leung Kuk (“06.10.14 Order”).
101. Although the Mother was not to be blamed for the incidents at Po Leung Kuk, and also G appeared to the more passive of the two boys during the two incidents, pending the investigation of the clinical psychologist into G’s then state and bearing in mind the then allegations of the PathFinders, the Mother’s access to G was ordered to be supervised and to take place at Po Leung Kuk initially.
102. Pursuant to the 06.10.14 Order, this Court also approved an arrangement for G to stay with the K family during weekends.
103. In around mid October 2014, it came to the ISSHK’s attention that the Mother was no longer residing at the Sham Shui Po Flat as claimed by her, and instead she was staying in a flat subdivided into various rooms in Quarry Bay (“Quarry Bay Flat”).
104. Although the Mother did have supervised access to G at Po Leung Kuk, she criticised the access arrangements and eventually this Court made an order that she could have supervised access outside Po Leung Kuk the first of which took place on 31 December 2014. The Mother had complained that she was being deprived of the right to have private time with G since early June 2014.
105. At the time the Mother filed her 1st affidavit in January 2015, she still stated her address to be the Sham Shui Po Flat. She had said she had agreed to move to an ISSHK shelter in Central (“Staunton Street Shelter”), which was arranged by ISSHK so that it would be easier for the Mother to exercise her access to G but at the time the Mother said she was asking ISSHK to help her find accommodation at Western District so that she and G could settle down when G was to start primary school in September 2015. It was clear from her then affidavit that the Mother was not intending to leave Hong Kong with G since she was at that time making the Non Refoulement Claim[42].
106. DSW had issued a summons on 21 January 2015 to remove Ms L Chan as next friend of G in these proceedings, and to be replaced by the Official Solicitor. The Mother had also alleged that PathFinders had considered that G be sent for adoption and as mentioned earlier, the Mother alleged that they were trying to build a case against her and that the PathFinders had ulterior motive. The Official Solicitor’s representative turned up at the hearing but did not see the necessity of their being involved as there was no sufficient evidence of any conflict of interest between G and the PathFinders. In the circumstances, DSW’s application was later adjourned and it was never restored. I agree with the then stance of the Official Solicitor. There was no sufficient evidence of any conflict of interest between Ms L Chan and/or PathFinders and G, nor any interior motive on the part of Ms L Chan and/or PathFinders.
107. Anyway, in light of the K family willing to take G in full-time, G ceased living in Po Leung Kuk and began living with the K family at their home since about 12 February 2015. Since then, the Mother had been allowed supervised access on Sundays.
108. The first Sunday access took place on 15 February 2015 and was supervised by the Programme Director of the Assistance to Asylum Seekers and Torture Claimants Project of ISS, Adrielle Panares (“Ms Panares”), who had filed an affidavit prior to the 2015 Trial to describe that access. The Mother took G to the Quarry Bay Flat and the flat was found to be crowded with about 10 to 12 Filipinos and was rampant with smoking and gambling activities at the time of the Mother’s visit. Ms Panares found the Quarry Bay Flat to be an inappropriate place for G to visit. Ms Panares further observed that G felt very uncomfortable there and kept only to himself in a room.
109. As mentioned earlier, the 2015 Trial, essentially to determine whether G was to continue to be a ward of this Court was to start in May 2015, but the Consent Order was reached. Under the Consent Order, the Mother had agreed to G to remain as a ward and to continue to reside with the Ks with her having only supervised access. The Mother had also agreed to attend parenting counselling sessions provided by ISSHK.
110. As mentioned earlier, pursuant to the Consent Order and the Further Order, ISS is to prepare Monthly Reports.
111. The purpose of the Monthly Reports was initially intended to assist the Mother in her building up her parenting skills as a single parent and in improving her access to G. However since the Consent Order, the Mother’s attendance rate between August 2015 and January 2016 was only about 33% and between January and June 2016, she ceased attending completely[43].
112. The Mother had first complained that the original counsellor was from a different cultural background and that the Mother simply did not feel that the sessions would be necessary. Then the Mother’s Summons was issued.
Grounds for the Mother’s application
113. The Mother’s Summons was supported by her 5th affidavit. Her grounds for dewarding can be summarised as follows: -
(i) There was no ground for Ms L Chan to issue these proceedings in the first place;
(ii) The approach of supervision of access adopted by the DSW and ISSHK was that the access was not purely for the best interest of G but for assessment of the Mother’s parenting skill;
(iii) ISSHK refused to allow the Mother to live close to her community in the Quarry Bay saying that the place was not safe for G and that the Mother could not bring G to the premises[44] during access;
(iv) The Mother disagreed with ISSHK that the responsibility to do homework with G would rest on her;
(v) The Mother wanted G to be more independent and that ISSHK adopted a very protective approach in taking care of G;
(vi) The Mother’s parenting style was well within the social acceptance range;
(vii) The Mother has a “big confusion” on the arrangement of her accommodation[45].
114. So far as (i) and (ii) were concerned, suffice to say, the Mother was legally represented throughout and she had consented to the Consent Order and the Further Order and she had agreed to G to continue to be a ward of this Court and to her access continuing to be supervised. As said earlier, she herself had agreed to attend the counselling and parenting sessions to improve her parenting skills.
115. As for her other grounds, it would appear her main complaints were over the accommodation arrangements made for her by ISSHK and that there was nothing wrong with her parenting skills. One of the interim orders sought in the Mother’s Summons was that during the interim period, ISSHK was to assist the Mother to find new accommodation.
The Mother’s accommodation arrangements
116. After the Consent Order, the Mother did eventually move to the Staunton Street Shelter.
117. However, the Mother complained in her 5th affidavit that her flat mates at the Staunton Street Shelter were Africans and they refused to clean the kitchen and toilet and they always relied on the Mother to clean for them. The Mother reported an incident in March 2016 when she was yelled at while in the shower and the bathroom door was opened by an African flat mate. She also complained that the African children were always walking around without wearing pants. The Mother said she had made complaints about her accommodation to her ISSHK caseworker but she was told nothing could be done.
118. The Mother had arranged for one of her former flat mates at the Staunton Street Shelter, an Indonesian woman (“Yayuk”), to make an affirmation on her behalf. Yayuk also was not able to live with the Africans and she had moved out to a flat in Wan Chai in July 2016. Apparently, the Mother had wanted to move into share the flat with Yayuk but ISS considered the Wan Chai flat not suitable for G[46]. Yayuk was not cross-examined during the trial.
119. The Mother said that according to the Consent Order she was to reside at the ISS shelter or other accommodation as approved by ISS, but ISS never took up the responsibility to assess whether proposed accommodation was suitable for access or for G to stay in, and she said she needed assistance from ISSHK to respond to her request to view property quickly and that she wanted to find a room near G’s school and that G could live with her as soon as possible, and that in the meantime she would like free access to G during the weekends. She also said she wanted to take G back to Philippines for good.
The Mother’s counselling and parenting sessions
120. The Mother’s attendance at the counselling and parenting sessions was sporadic. From May to August 2017, the Mother had also failed to attend some of G’s family art therapy sessions, causing G great disappointment and the reasons for absence given by her included that she did not have enough food money and not enough transport money. She had also indicated to ISSHK in June 2017 that access was to be put on hold as she was dissatisfied with ISSHK’s food and travel assistance for her.
121. When the Mother was cross examined by Ms Irving about why she failed to attend the counselling and parenting sessions, the Mother said she did attend for a few months but stopped as they kept talking to her about the same thing and that they did not pay her travelling expenses. When asked whether she had considered counselling helpful, she said they did not understand each other and that they did not understand her requests to move out of the Staunton Street Shelter. When asked whether this was what she had understood by “counselling”, she said she wanted to have peace of mind and that she had a lot of problems at the Staunton Street Shelter.
122. By “they”, the Mother was referring to ISSHK. It transpired that in the beginning, she had a Chinese counsellor then later an Indian counsellor and then eventually in August 2017, ISSHK managed to arrange a Filipino counsellor Mr Ian Ong who wrote the Monthly Report for December 2017. Mr Ong also attended the trial to give evidence.
123. Mr Ong explained that he was assigned to be the Mother’s counsellor since August 2017 but the Mother only attended her first session with him on 1 December 2017. Mr Ong explained that his goal at that first session was to try to establish a rapport and trust with the Mother. She was clearly not happy when they met, and she did not make eye contact with him. Mr Ong said he just let her vent her feelings but the Mother was upset. According to Mr Ong, the Mother continued to perseverate on her accommodation issue and avoided talking about G. When they briefly talked about her plans about she and G returning to the Philippines, the Mother said she had a sibling in Manila[47] and would likely to stay there and not return to the province, and when pressed about her plan the Mother appeared irritated and began to cry. The Mother attended two further sessions on 22 and 29 December 2017 with Mr Ong. At the end of December 2017 the Mother’s father (or stepfather) died of lung cancer and that her younger sister was returning from Canada to their home in Philippines for the funeral and was passing through Hong Kong on 31 December 2017. Apparently, the Mother wanted to change her weekend access to 31 December 2017 but was given only a few hours by the Ks that day and she felt everyone was against her. The Mother then stated since she was unable to switch her weekend access to the 31 December 2017, she decided to cancel all access until the next court date and told Mr Ong she would not continue with any counselling with him.
124. Mr Ong said he tried to urge the Mother not to react in such a manner and to separate her ongoing tension with ISSHK from her access to G and that he would speak with her case officers and area manager to see whether they could assist. Mr Ong said the Mother had also called her lawyers on the phone for assistance.
125. Anyway that was the last time Mr Ong saw the Mother. Up until the trial, the Mother had not returned to any further counselling and parenting sessions.
126. It was clear from her answers and her evidence that the Mother failed to understand that the counselling and the parenting sessions were arranged to help her in her parenting skills and her caring for G. It would seem that she was merely using the opportunity to air her grievances and dissatisfaction with ISSHK and the allowances to her, such as food and travel allowances and also accommodation arrangement and she was using the opportunity to try to achieve what she wanted from ISSHK. The Mother clearly saw nothing wrong with her parenting style and she had indicated a lack of interest in improving her parenting skills.
The Mother’s access
127. One of the grounds for the Mother’s Summons was her complaints over the supervised access.
128. Notwithstanding the Mother’s failure to attend counselling and parenting sessions, or the family art therapy sessions with G, ISS indicated in the Monthly Reports that G did not appear to be at risk or harm during the Mother’s access. By August 2017, ISSHK was prepared to consider for the Mother to have unsupervised access to G during G’s summer holidays from 10 August 2017 onwards. This led to this Court making an order on 25 July 2017 whereby the Further Order was varied to the Mother starting to have unsupervised day time access subject to her keeping a record of each unsupervised access and to provide the same to ISSHK[48] (“25.07.17 Order”).
129. All access in September 2017 were unsupervised. Unsupervised overnight access over weekends also began to take place as from 7 October 2017 onwards.
130. However, just when unsupervised access appeared to be going smoothly, all access had to be suspended temporarily from 23 November 2017 when on 22 November 2017 G revealed to his art therapist Ms Pui Hang Wan (“Ms Pui”) that the Mother brought him to a room full of smoke in Quarry Bay several times and that he wanted to speak up as he could no longer tolerate it.
131. It then transpired that G was taken to the Quarry Bay Flat again by the Mother on two of the weekends. G said he recalled that when he was younger he had been there. He revealed that although there were less people now, the room was even smokier, and he sat outside the room playing the Mother’s phone for about an hour all by himself. He said when the other women tried to talk to him, he felt scared and did not respond. G also described the Mother was playing cards and scooping up money. G told Ms Pui that he disliked going to that place but did not tell the Mother about it because he believed that it would be of no use and that she would just ignore him.
132. What G reported to Ms Pui about the flat in Quarry Bay in fact corresponded with Ms Panares’s description of the Quarry Bay Flat in her affidavit filed before the 2015 Trial, and that the flat was regarded to be an inappropriate and unfit place for G to visit and that he was feeling uncomfortable there.
133. Ms Panares had attended the present trial to give evidence and when asked by Mr Coleman about the Quarry Bay Flat, she had described the inappropriate environment there in detail and she also pointed out that most of the people there were overstayers and if police came then G would be caught up with it.
134. When asked about why she took G there, the Mother said her friend lived there and she wanted to visit her friend, and that there was no one gambling in the room where her friend stayed. When asked about her playing cards and scooping up money the Mother explained that her friend had asked her to play on her behalf. She then said she went twice as she wanted to collect something from her friend. When it was pointed out that she was asked to record and report what she did during her unsupervised access with G and that she did not record going to the Quarry Bay Flat or playing cards, the Mother then said it was not her plan to go there. She said it was a boarding house for domestic helpers and if some one was smoking, they could cover their nose and that the place was not dangerous.
135. She had said she did not want to stay in the Jumping Gym with G all the time and that G always wanted toys, and she could not see what she did wrong.
136. It was quite clear the Mother was not being truthful and that she had clearly gone to the Quarry Bay Flat to visit her own friends. The Mother failed to realise that she would need to spend quality time with G during access and not simply expecting G to follow her wherever she wanted to go or do.
137. G had also told Ms Pui that he felt embarrassed when the Mother shouted loudly at the case worker at ISSHK with foul language in front of his school on 23 November 2017 when the Mother was told that the unsupervised day access was suspended and he noticed there were people watching and he wanted to leave the scene as soon as possible. When the Mother was asked by this, she said she was not informed about the cancellation of the access and that she was embarrassed when told at the school. The Mother did not deny that she had shouted at the case worker in front of G’s school, and it was clear that she did not consider G’s feelings at all.
138. The Mother’s unsupervised access was due to resume in December 2017, but the Mother cancelled all access from 2 December to 16 December 2017 and overnight access eventually only resumed from 25 to 27 December and from 28 to 29 December 2017.
139. When asked why she cancelled access for 2 weeks in early December 2017, the Mother said she cancelled access as this would make ISSHK happy since they would not have anything to report. She said she was badly hurt and that she had enough.
140. I accept that the Mother lacks education and is from a different cultural background. However, the Mother seems to have ignored G’s feelings and welfare in her confrontational behaviour against ISSHK. In my view, the Mother has clearly placed her own interest, needs and feelings above G’s. I also find the Mother clearly lacks parenting skills. She needs help in improving her parenting skills and yet as seen earlier she has rejected help by refusing to turn up at the counselling and parenting sessions.
The Mother’s care plan for G
141. In her 5th affidavit, the Mother said she would find a village to settle down and do farming work and that she would take care of G by herself. She also said G might not be able to receive education in Philippines in the first one to two years, but she would try to send him to school after she had settled down. She also believed that ISS could provide assistance to G in Philippines because they had a branch there.
142. Since the Mother’s Summons was issued, she had filed a number of further affidavits. However up until early November 2017, the Mother still had not set out any concrete plans for G for this Court to consider whether to deward G.
143. Finally on 3 November 2017, the Mother’s solicitors wrote to Ms L Chan, DSW, and ISS to provide a so called framework of her plan ( “03.11.17 Letter”)[49]. However, all the Mother said was that she would like to settle in Manila and to find jobs in a laundry or a restaurant, and that she would enrol G into nearby school as soon as she could and she would take care of G. This appeared to be inconsistent that with what she had said in her 5th affidavit about her plans.
144. It was further clear that the Mother’s future plans for G in her 5th affidavit and in her 03.11.17 Letter were both vague and lacked sufficient details. This led Ms L Chan sending to the Mother a letter on 23 November 2017 providing a detailed outline of the information necessary to include in any viable and realistic future care plan for G and Ms L Chan had suggested various websites/organisations the Mother could contact or make enquiries from. (“23.11.17 Letter”)[50].
145. Essentially, there were 4 matters which the Mother should address (“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, social integration.
146. At the PTR hearing on 27 November 2017, this Court made an order that, amongst other things, the Mother was to set out on affidavit details of her plan in the Philippines, in the event of a return.
147. Then in her 10th affidavit filed on 11 December 2017, the Mother said that since she was not in the Philippines she could only plan as best as she could and that any plans she would have would necessarily be subjected to the circumstances as and when she and G were physically there.
148. The Mother said in her 10th affidavit that she would borrow some money from friends in the Church in Hong Kong or other friends to ensure G and she would have sufficient funds to live on for the first few months in Philippines. According to the Mother, she had contacted a friend who is an engineer with the National Irrigation Administration Central Office (“Fidel”) who lives in Quezon City, and that Fidel has volunteered to pick her and G up from the airport and to put them up in his apartment until the Mother finds accommodation and a job.
149. She said she intended to enrol G in a public school with free education. She also said she could do laundry work washing and ironing clothes, and that she could collect the laundry and wash and iron at her place so that she could be with G before G was enrolled at school. She also said if her plan to settle in Manila would not work out, she would move back to her hometown in Bambang to do some rice plantation or fish farm work. She said she was aware that there would be a period of adjustment for G as G would have to learn the local language.
150. Ms L Chan’s solicitors then wrote on 14 December 2017 to seek clarification and/or documentary evidence of a number of issues arising out of the Mother’s 10th affidavit.
151. As pointed out by Ms L Chan in her 7th affirmation, the Mother did not provide the names of the friends whom she said she would be able to borrow money from, nor did she provide evidence of any communications with Fidel or his address or contact details and Ms L Chan had set out a number of other points in her 7th affidavit which the Mother should deal with.
152. During December 2017, as mentioned earlier, the Mother had met with Mr Ong on 3 occasions. During the 1st meeting it seemed that she only told him she was planning to stay in Manila. During the 3rd meeting she had told Mr Ong she would temporarily stay at a friend’s condominium who worked at the National Irrigation Agency where she had stayed in the past when she was travelling back to the Philippines. She appeared to be referring to Fidel but did not tell Mr Ong her friend’s name. The Mother was aware that G would need help with the transition and that bringing him directly to her home province would be difficult for G and she therefore planned to stay in Quezon City for awhile before returning to the province[51].
153. Finally, the Mother filed her 11th affidavit on 4 January 2018. She said that pending their repatriation to Philippines, she and G would continue to reside at the Staunton Street Shelter and that G would remain at his present school and that she would encourage G to seek help from his classmates and that she would also get help from volunteers at the Church to help G with his school work. She said Fidel would help them to find a flat as she would like G to settle in Manila first because it is a city similar to Hong Kong. The Mother said she would borrow about HK$10,000 from friends in Hong Kong and if Fidel should fail to turn up to pick them up, she would take a taxi to the bus terminal and would head towards her home town. She also said it was pre-mature to tell which school she was intending to enrol G. She had said “… I have to be in the Philippines, settle on where G and I will live before finding a school in the area”. She has also named 3 relatives in the Philippines, one of whom is said to be her niece “Stephanie S” (“Stephanie”) with whom she was said to be in contact. However, there was no evidence produced by the Mother of any her contact or communications with Fidel or with her relatives. Further, in the Mother’s CAT Questionnaire, she had stated that she had no other relatives in Philippines.
154. In the afternoon of the 1st day of the present trial, the Mother then suddenly produced a screen shot of a series of messages/chats on Facebook Messenger (“Chats”) with a “Stephanie Hope”, said to be the same person as Stephanie her niece, but in the Chats, Stephanie called the Mother “Mommy”. The Mother explained that Stephanie was her sister’s daughter and Stephanie called the Mother “Mommy” as an expression of respect. According to the Mother, Stephanie is 19 years old and lives in Bambang and that they live with the Mother’s stepmother.
155. According to the Mother, Stephanie wrote in the Chat of 27 December 2017 that the Mother’s father (or stepfather) had passed away. Then there was a Chat sent by the Mother to Stephanie which appeared to be on 28 December 2017 that the Mother would send Stephanie a sum of 25,000 pesos, 10,000 pesos of which was for Stephanie’s “advance debut”[52]. This would be about HK$4,000.
156. When asked to explain the contents of the Chats by her own Counsel, Mr Shieh, the Mother admitted that she had lied in order to help Stephanie so that she and her family could help the Mother upon her return to Philippines.
157. Under cross examination as to the source of her funds, the Mother had said she lent money to someone and that someone repaid the Mother and at the time Stephanie had asked the Mother for money, and the Mother therefore sent the money to Stephanie. When asked why she had money to lend some one, the Mother said this person borrowed from her a long time ago. The Mother was also asked how much savings she herself had. She mentioned something like $7,000 but was vague.
158. The Mother then claimed that these were her savings from her previous employment in Hong Kong.
159. However, in her 10th affidavit, the Mother had said she was planning to borrow HK$10,000 from a friend to go back to Philippines. Under cross examination, she said it was the Pastor whom she was going to borrow the money from.
160. Anyway, it was pointed out to her by Mr Colemen that if she had the money to send Stephanie and/or other savings, then there would not be any need for her to borrow any money from anyone. The Mother had said pending her finding work in the Philippines, the expenses for her and G would be about 2,000 pesos a month, and that the sum of 10,000 pesos she sent to Stephanie could last the Mother and G 4 to 5 months. The Mother’s response was that her niece could send them money.
161. Further, in answer to earlier cross examination by Ms Irving, as to why she failed to attend the counselling classes and parenting sessions, the Mother had said she had no money for transportation. However, the fare would only be HK$29, and it was pointed out to her by Mr Coleman that she had all these savings, and yet she said she had no money to travel to attend the counselling and parenting sessions, whereupon the Mother then responded by saying that she had an agreement with ISSHK that ISSHK was to pay for her transportation and complained that she did not receive payment from ISSHK.
162. I am of the view the evidence, in particular the Chats, showed that the Mother did have savings, and she did have funds for transportation fees for the counselling and parenting sessions and she could have attended those sessions even if she did not receive any transportation allowances from ISS. She was legally represented throughout and if it was indeed her plan to reside in Quezon City, Manila, she could have contacted other organisations whether in Hong Kong or Manila, to find out about schools in Manila and/or she could have also contacted the Philippine Consulate to obtain more information on her future plans. She had not produced any communications with Fidel and there was nothing concrete about her plans to reside and work in Manila. She also had not given consistent versions of her plans.
163. In short, I do not find the Mother a reliable or credible witness at all. I do not find that there was sufficient evidence that she indeed was planning to live in Manila for long. I also have serious concerns that, if she cannot find work or accommodation in Manila, she would take G to the province and that for one or two years G might not receive any education at all.
The Director of Social Welfare
164. Ms Fung made two affirmations on behalf of DSW in these proceedings, one of which was filed prior to the Consent Order, and the 2nd one was filed in June 2016 after the Mother’s Summons was issued. Ms Fung is the person in charge of the humanitarian assistance programme at the Social Welfare Department but explained that the Department has commissioned ISS to carry out all the services.
165. Ms Fung/DSW was in support of the Mother’s application to deward G. She had in her 2nd affirmation referred to the 3 SWRs submitted by Ms Virginia Chan, prior to the 2015 Trial. Ms Fung had highlighted the then findings of Ms Virginia Chan that (i) the Mother was trying her best to take care of G; (ii) G expressed his will to stay with his mother and was unhappy when he was arranged to separate from the Mother; (iii) the Mother had strong motherly bonding with G[53]. It was the then recommendation of DSW that G’s sole custody, care and control be granted to the Mother[54]. This was however some 3 years ago and prior to the Consent Order.
166. Ms Fung had in her 2nd affirmation stated that notwithstanding room for improvement for the Mother’s parenting skills, there was no imminent need for G to be under the protection of this Court and that she maintained her view that there was no basis to take out the current wardship proceedings as there was no substantiated evidence of child neglect/abuse and G’s welfare had been well looked after by ISS[55].
167. Suffice to say, DSW did agree to the terms of the Consent Order, including that G was to continue to be a ward of this Court. There was no application ever taken out by DSW, or the Secretary of Justice to strike out the originating summons, as in the case of Re C (a minor).
168. Further, as I have found earlier, the issue of these proceeding was due to a serious concern on the part of the PathFinds over G’s welfare in light of the Mother’s parenting/care history of G.
169. Ms Fung has explained that normally when there is a non refoulement claim, once the claim process is terminated, the Immigration Department will assist the claimant to apply for a temporary travel document form the relevant consulate for the claimant to travel back to his/her country, and that the shortest period for the application for the temporary travel document to be issued will be about 3 weeks, which means normally upon the termination of the non refoulement claim, the claimant will be repatriated within about 3 weeks.
170. When Ms Fung was asked by Ms Irving in relation to what assistance DSW could provide for the Mother and G in respect of the 4 Matters, she had said these were matters for the ISSHK to assist, and further as the Mother and G would go to the Philippines if G were to be dewarded, the Philippine Consulate would know best how to assist, and that she would ask ISSHK to contact the Philippines Consulate.
171. Ms Fung admitted that the Mother did not say exactly where she wanted to live and that she needed help to decide that first. When asked by Ms Irving whether she agreed that the arrangements in relation to the 4 Matters should be in place first before the Court could consider dewarding, Ms Fung answered this would be most ideal but might not be realistic, and that based on her experience with mothers from grass root levels, the arrangements/plans the Mother provided so far were realistic, and a lot better that others in her position.
172. Ms Fung made it clear that it was the DSW’s stance that there was never any abuse of G by the Mother and that G was never at risk and that the Mother was always willing to take any assistance offered to her. When asked by Ms Irving, whether DSW would be happy for the Mother and G to go to the Philippines without any concrete plans as to the 4 Matters, Ms Fung’s response was that prior to them leaving Hong Kong, they could help the Mother to get all the information to help her formulate her plans.
173. Under cross examination of Mr Coleman, Ms Fung explained that DSW would not be involved in an individual case and would only give suggestions or advice to ISS with which the Social Welfare Department has a contractual relationship, and that it would be the ISSHK who would deal with and see the persons involved in individual cases. She had said that although there is the Consent Order which provided that the Mother had to attend the counselling and parenting sessions, when it came to execution, it had to be handled with flexibility. Ms Fung accepted that it would be desirable for the Mother to make more concrete proposals for G and that this would be in the best interest of G. Ms Fung also said if there were such a need, they would contact Philippine Consulate to see what assistance could be provided for the Mother and G and also what education could be provided, but maintained that on a case level, this would be for ISSHK to deal with.
174. To summarise, it was clearly Ms Fung’s attitude that ISSHK should be the one to assist the Mother on the individual case level, although DSW would render assistance to ISSHK and make general enquiries for the Mother and G, if necessary from the Philippine Consulate.
175. Anyway, the fact remains that up until the trial, there had been no enquiries made by DSW. ISS’s position in relation to the Mother’s Summons is that G cannot be entrusted to the Mother’s care and ISS does not support the Mother’s application.
Mrs K’s evidence
176. Mrs K is a Filipina lady and she is a friend of Ms Panares who is also Filipina. Mr and Mrs K have 3 grown up daughters of their own. Mrs K said she was told by Ms Panares about G who was at the time at Po Leung Kuk, and the Ks were asked whether they were willing to take G in under the “Local Home” or foster arrangement. Mrs K said she wanted to meet G first and that was why she and her husband were then arranged to meet G in Po Leung Kuk in August 2014.
177. Mrs K said when she first met G at Po Leung Kuk, he had his head down but after about 5 minutes, he then started to play with Mr K. They found G needed them and they eventually agreed to take him in. Mrs K was frank in that she accepted it was not easy for the family in the beginning and that G had a lot of tantrums and when he cried, he would just scream or lie down and he had a lot of frustrations but Mrs K said they understood and they found time, love and attention for G and after a few years, G has become a totally changed boy. He now calls Mrs K “Mummy Sxxxxx” and the Mother “Mummy Vxxxx”. She said she and Mr K treat G as they treat their own daughters, and even when the family travelled, they would not travel at Christmas, so they could be with G. The Ks have arranged for schooling for G and are supporting him financially.
178. Mrs K further said, for them, whether it was going to be adoption or local home arrangement, she and her husband would not mind and that whatever arrangement, they would care for G. She said they also tried to let G understand that the Mother is his mother and that they would not stop the Mother from communicating with G if the Mother were to return to Philippines on her own. Mrs K has also said that as they go to Philippines regularly, they would be happy to take G to visit the Mother in the Philippines, say once or twice a year, if the Mother were to leave and that Mrs K would set up contact with the Mother through Facebook or other means. She said she would also perfectly understand that if every one were to agree or the Court were to order G to go back to Philippines with the Mother and that if the Court would allow it, she would wish to continue to communicate and support G.
179. 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 past 3 to 4 years and that it is the first time in G’s life that he has been in a settled home and family for a continuous period of time.
G’s views
180. G was first interviewed by Ms Virginia Chan in September 2014. He was then about 5 ½ years old. He expressed he loved his mother and was unhappy when he had to be admitted to Po Leung Kuk and that he was very happy to see his mother visiting him at the Po Leung Kuk, and he had also expressed that he liked to live with Mr and Mrs K (whom he had just met) but wanted to see his mother every day[56].
181. G was interviewed by Ms Virginia Chan the second time in October 2014, and that G expressed he wanted to stay with his mother, and had shared with the social worker his good memories with his mother/Foster Parents/ “Kaima” /inmates of Po Leung Kuk[57].
182. G was interviewed by Ms Virginia Chan for the third time in February 2015 before the 2015 Trial, he expressed he felt happy to live with his Foster Parents who loved and cared about him. He had been taught to call them daddy and mummy and he was given a Chinese name, with a surname to follow that of Mr K. He said Mr K would speak to him in Cantonese and Mrs K would speak to him in English. Mrs K and their helper would sometimes speak to him in Tagalog. He had mentioned that his sister (the 2nd daughter of Mr and Mrs K) had taught him how to do his homework. G considered himself to be Chinese and said he was very happy living at the Foster Parents’ home, and he wanted to continue living there. G was observed to be also very happy when he met up with the Mother who at that time had taught him to listen to his Foster Parents[58].
183. ISSHK had also submitted a report in March 2015. According to the ISSHK report, G started calling Mr and Mrs K “daddy” and “mommy” when he was still in Po Leung Kuk and that it was at G’s own initiative. Although G was corrected to call them “auntie” and “uncle” instead, G seemed to have continued calling them “mummy” and “daddy”[59]. Although it was observed by ISSHK at that time that there was an element of intimacy and attachment between the Mother and G, ISSHK took the view that the Mother had not shown a strong capacity, willingness, and sense of direction in caring for G. Further, it was noted by ISSHK when Mrs K asked G when the Mother was ready and had a stable house, would it be okay for him to stay with the Mother every day, G had replied no and he could just see her sometimes[60].
184. It was clear even in March 2015, G was very happy staying with the Ks notwithstanding his attachment to the Mother.
185. Ms L Chan arranged to see G on 18 December 2017, prior to the present trial. This was only the 2nd time she saw G, the first time was in 2014. She did not see G alone, but in the presence of Mr and Mrs K and also Ms Pui. The interview was video recorded and a transcript was produced by ISSHK[61]. G had indicated a preference to speak in Cantonese, and thereafter the meeting was conducted in Cantonese. Unfortunately, Ms L Chan and the other adults appeared to be doing most of the talking and although G was given some options to choose, that was either Option A of staying with the Mother, or Option B to stay with his foster parents, or Option C, to let the others or the Court to decide. It would appear that G was thinking of either “A” or “B” and he was then told that he could draw a picture of where he wanted to be on a paper which indicated the two places Philippines and Hong Kong. G was told he could go home to think about it and let Ms L Chan know when they next met.
186. I met G on 24 January 2018 for about half an hour. It would only be natural for G to be nervous. When I started to speak to G in English, G told me immediately that he could speak Chinese, but I decided to continue the meeting in English so that the lawyers and the Mother could listen to the tape and hear directly what G had said. By the time I met with G, he clearly had decided that he wanted to stay in Hong Kong. He had said that he would like his mother to go back to Philippines and if she can find a home and a lot of money, he could go to Philippines to meet her and to sleep there for a few days. He said he had met the Mother’s friends but he did not like people smoking. He also told me that he wanted to have a passport and then go to see snow. He said he had seen snow in photographs and also on television and wanted to play with snow and make a snowman and that his third sister is waiting to go with him. He also told me about his favourite Christmas present, which was a remote controlled toy helicopter. G also told me that he had told the Mother that he wanted to stay in Hong Kong and the Mother said “okay”.
Discussion
The ascertainable views of the child
187. I accept that, as submitted by Mr Chow, compared to the Ks, the Mother has always been in an inferior position. She has to rely on assistance from ISSHK and cannot choose freely the place where she wants to live, and has to save up to buy toys for G. It is quite clear that the Ks can offer G a materialistically more comfortable environment than the Mother.
188. It is also natural for any child to want a comfortable home. Even 3 years ago in February 2015, G had already expressed that he was very happy living with the Ks and wanted to continue living there when at that time, he had only been spending weekends with them. In fact, the Mother herself had also clearly approved of the arrangement, as it was reported that she had taught G to listen to his Foster Parents, and further the Mother had agreed pursuant to the Consent Order to G continuing to live with the Ks. She must therefore have accepted that the arrangement was at the time in the best interests of G.
189. It is not only the materialistic aspect of the Ks’ home that G likes, since again even in February 2015, Ms Virginia Chan had already reported that G had felt the love and care that the Ks were giving him. Mrs K herself had impressed this Court, and indeed probably most of those present, as being warm, and patient and committed towards G. Further, she has not in any way excluded the Mother from G’s life, as Mrs K clearly accepts that the Mother is the birth mother of G. G himself has also continued to show his attachment to the Mother, saying that he wanted to visit her if the Mother were to go back to the Philippines.
190. No doubt, as submitted by Mr Shieh, G would be influenced by the K family who is devoted to him and has grown attached to him. G has clearly also grown attached to them, and he seems to get on well with the K sisters, particularly the “3rd sister”. He also likes his school where he has now been for 3 years, and where he has his best friends.
191. G was almost 9 years old when I met him. He clearly understood what his responses would mean, and that he might end up staying in Hong Kong with the Ks for the time being, while the Mother could go back to the Philippines.
192. Between the meeting G had with Ms L Chan and his meeting with me, G had also had unsupervised staying access with the Mother.
193. Although G appeared nervous in the beginning during the meeting with me, later he did relax and clearly told me that he wanted to stay in Hong Kong. I am of the view that G is of the age and understanding that I should give his views due consideration.
194. It is accepted by Mr Shieh that this Court can take into account G’s views but he has argued that this Court should not give undue weight to G’s views.
195. A child’s views is only one of the matters which the Court has to give due consideration to in considering the Childs best interest, and I shall also consider below some of the other matters in the Checklist even though there has been no application made by the Ks or any one else.
G’s physical, emotional and educational needs
196. There was really very little information from the Mother as to how she could meet G’s needs. I have also found earlier the Mother lacks parenting skills.
197. It would appear that G was the shortest in his class when he was in primary one but now he is no longer the shortest. G had told Ms L Chan that he used to play rugby and now he plays basketball but he says he prefers rugby and that he also wants to learn Taekwondo.
198. As seen earlier the Mother had not actually made contact with any school in Manila, and she was not able to show the Court any school curriculum. There was no sufficient information about sports activities for G.
199. G is now quite good with his Chinese, and there was no sufficient information as to whether the Mother would plan to arrange for Chinese classes for him. The evidence also indicated that the Mother would not herself be able to assist G in his homework nor did she believe this would be her responsibility whereas, it seems that there was no problem with G completing his homework with the Ks.
200. Although there appears to be a close attachment between the Mother and G, there was no sufficient evidence how the Mother would be able to cope with G’s emotional needs since it appears the Mother has herself shown signs of depression[62] and yet there is no sufficient evidence that she has sought help.
201. On the other hand, G is presently enjoying his school, and if he continues to stay in Hong Kong there appears to be no problem for him to continue attending his present school for the time being.
202. Having considered the evidence, I find at the moment the Mother has not provided sufficient evidence that she is capable to meet G’s physical, emotional and educational needs.
The effect on G of any changes in the child’s circumstances
203. Although G does understand Tagalog, he told me it is only a little and would like to learn more. During the trial, the Mother asked for an Ilocano interpreter and Ilocano appears to be her native dialect. There is no evidence that G understands Ilocano.
204. To be moved from his present home with the Ks in Hong Kong and to be thrust into the unknown, firstly in a temporary apartment with Fidel in Manila, and then it is not quite clear where he will be and he may be taken to Bambang, which I understand is quite different from Hong Kong. In view of the fact that G has been living in Hong Kong for 9 years now, uplifting him for his present settled environment may have a serious effect on G and it is not clear how he would cope. There has been no expert evidence in this respect.
G’s age, maturity, sex, social and cultural background etc
205. G is now 9 years old, and he is a Filinipo boy born in Hong Kong, but has been exposed to a Chinese community for past 9 years. He prefers speaking Cantonese and it does not appear that he has any information of the Philippine culture, having never been there, although it appears that Mr K has told G there is a volcano there.
The attitude to G, and to the responsibilities of parenthood
206. It is clear that the Mother does not see the need of availing herself of the counselling and parenting sessions and this is a reflection of her attitude towards parenting. The Mother seems to be of the view that so long G is with his own mother, then all would be well. I find her not fully understanding the responsibilities of parenthood.
Any harm which G has suffered or is at risk of suffering
207. There is no sufficient evidence that G is now suffering or is at risk of suffering any harm in Hong Kong. However, the Mother had in her CAT Questionnaire claimed that G’s natural father’s wife had threatened to kidnap and kill the Mother if she returned to the Philippines[63] and in the Non-Refoulement Claim, the Mother had also claimed that both she had G would be tortured in the Philippines[64].
Any family violence
208. There is no sufficient evidence of any family violence.
How capable each of the G’s parents and any other relevant person is of meeting his needs
209. Between the Mother and the Ks, I find that the Ks are more capable of meeting G’s needs.
The practical difficulty and expense of a G having contact with a parent
210. Mrs K has said that she is prepared to take G to Philippines once or twice a year to meet with the Mother if the Mother were to return there by herself and in the event that G would be allowed to stay in Hong Kong. I accept what she said, and in any event if necessary, this can be made part of this Court’s order.
211. On the other hand, if G were to leave with the Mother, it is not clear whether the Mother plans to stay in contact with the Ks or to facilitate the Ks visiting G in the Philippines. There was no information in this regard.
Any other relevant circumstances
212. It is not quite clear what the Mother’s plan will be if G continues to be a ward. It is not clear whether the Mother will be able to continue to remain in Hong Kong for long, or whether she is planning to return to the Philippines without G.
213. It is also not clear at this stage, that whether the Director will be prepared to exercise his discretion to allow G to remain in Hong Kong. In any event, wardship will end when G becomes 18, if not earlier. If by then, he has not acquired residency rights, then he will have to leave Hong Kong.
214. There are clearly uncertainties both ways. The Mother has not provided this Court with sufficient details as to her plan for G if G were to be dewarded, and if G were to continue to be a ward, whether G is able to stay is also an uncertainty.
215. In his closing submissions, Mr Shieh recognized that because of practical constraints this Court may not feel sufficiently assured to make an immediate order to de-ward G, and the Mother was not advocating a “conditional” de-warding of G. What this Court has been invited to do by Mr Shieh is to adjourn the matter to a near future while at the same time making orders to call for specific and defined items of pertinent information/plans geared towards assuring this Court there are concrete plans in place.
216. However, in my view, the Mother has had legal representation and has had plenty of time to put together a detailed viable plan. She had also been informed of the kind of information required from her in the 23.11.17 Letter from Ms L Chan’s solicitors. Had the Mother needed more time, she could have sought an adjournment, and yet she decided to go through with the 5 day trial. This Court is not prepared to now adjourn to yet another hearing date.
217. In any event, there is nothing to stop the Mother to make a fresh application in future if and when she has obtained all the details and information about the 4 Matters. However, she would also have to consider G’s own feelings and wishes.
218. I have said, no parent can be said to be a perfect parent and I am fully aware that the Mother is the birth mother of G and that her parenting skill has to be seen in light of her background and culture. However, I have not found the Mother a truthful witness and the evidence indicated the Mother had placed her own interest above that of G, and she had not come up with details of a viable care plan for G.
Conclusion
219. Having considered all the circumstances of this case, I have come to the conclusion that it is in G’s best interest for him to remain a ward of this Court at present.
220. I am not prepared to allow the Mother’s application and I dismiss the Mother’s Summons.
221. As for costs, this is a child matter, and all parties are government funded, save ISS. I will make no order as to costs, with legal aid taxation for the plaintiff Ms L Chan and also for the Mother.
222. Finally, as the Mother is not willing to attend the counselling and parenting sessions, or the family art therapy sessions, it may be that there should be a variation of the Consent Order in this respect, to make it a more flexible arrangement. Also, I think the time has come to review the frequency of Monthly Reports, namely whether it can be reduced in frequency. I hope the parties can come to an agreement on these matters and submit a consent summons to reflect any necessary variation.
223. Lastly, but not the least, I wish to express my thanks to all Counsel for their assistance to this Court.
| | (Bebe Pui Ying Chu) |
| | Judge of the Court of First Instance
High Court |
Mr Russell Coleman SC and Mr Shaphan Marwah, instructed by Tanner De Witt, for the plaintiff
Mr Paul Shieh SC and Ms Monica Chow, instructed by KCL & Partners, for the 1st defendant
Mr Enzo WH Chow, instructed by Department of Justice, for the 2nd defendant
Ms Frances Irving, instructed by Fairbairn Catley Low & Kong, for the 3rd defendant
[1] For recognizance of G, see D1:4
[2] See D1:219
[3] See last item under (II) Basis of Claim, D1:29
[4] D1:5-16
[5] D1:26-33
[6] See para 9, E1:3, also para 10 C1:42
[7] See paras 5-6, C2:261-262
[8] See para 26, 09.09.16 Decision
[9] A:8-11
[10] Now “best interests” is the term in Hong Kong legislation
[11] At pg 710
[12] See paras 29-31
[13] Per Lord Scarman at 158H, Re E (SA) (A Minor) (Wardship: Court’s Duty) [1984] 1 WLR 156
[14] See Holding (1) in Headnote
[15]per Lam V-P, at para 1,.2 pg 532
[16] See Re G (Children) [2006] 2 FLR 629 at paras 30, 31 pgs 639-640, per Baroness Hale; Re B (A Child) [2010] 1 FLR 551 at para 20 pg 556, per Lord Kerr; Re H (A Child) (Appeal) [2016] 2 FLR 1173, at pg 1174, see per curiam in Holding
[17] See Holding (1) in the Headnote.
[18] See Holding (1) in Headnote
[19] At para 34
[20] D1:39-42
[21] At D1:41
[22] D1:42
[23] D1:36-40
[24] D1:37
[25] At paras16(c) (1) - (14), C1:6-9
[26] D1: 48-49, D1:53-54
[27] D1:52; see also para 10, D1:49 and para 10, D1:54
[28] See para 67, E1:17
[29] In para 4
[30] See D1:50, 61, 62, 63
[31] D1:167-176
[32] It appeared date should be 2 May 2014, see D1:71, instead of 2 April 2014
[33] See para 32, Mother’s 1st affidavit, C1:84
[34] D1:177-181
[35] See para 12, C1:59
[36] See para 5.2, D1:196
[37] D1:94
[38] See para 5, E1: 77
[39] See para 35, E1:10
[40] See para 34, E1:10
[41] At para 44, C1:50
[42] See para 103, C1:114
[43] See para 12, C2:241
[44] Referring to the Quarry Bay Flat
[45] See para 18, C1:212
[46] C2:296-300
[47] Mother later said Mr Ong was mistaken and that she said it was a friend
[48] B:34-35
[49] D2:321-322
[50] D2:329-332
[51] See para 36, E5:1216
[52] Exhibit D1-1
[53] See para 7, C2:224
[54] See para 43, E2: 258
[55] See paras 23-25, C2:227-228
[56] See paras 43-44, 1st SWR, E1:12
[57] See para 83, 2nd SWR, E1:97
[58] See paras 10-13, 3rd SWR, E2:247-249
[59] See paras 104-106, E2: 314-315
[60] See para 103, E2:314
[61] Exhibit D3-1
[62] See Letter of 8 January 2018 from ISS’s solicitors to the Mother’s solicitors
[63] Item on 35, D1:14
[64] See D1:26