FCMC 1393 / 2015
[2020] HKFC 68
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MATRIMONIAL CAUSES
NUMBER 1393 OF 2015
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| BETWEEN | | |
| | LEYY | Petitioner |
and |
| | UKWK | Respondent |
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| Coram: | Her Honour Judge Sharon D. Melloy in Chambers (Not open to public) |
| Dates of Trial: | 16 – 18, 23 – 25 July 2019 and 16 October 2019 |
| Date of closing submissions: | 28 October, 1 November, 11 November and 18 November 2019 |
| Date of Judgement: | 19 March 2020 |
__________________________
JUDGMENT
(Fact finding, custody, care and control, access and change of residence)
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Preliminary Note
1. It is unusual for the Family Court to deliver long substantive judgments orally. In part this is because of ongoing pressures on the courts diary, particularly at this time following the closure of the courts because of the Coronavirus. In this instance however I have decided that a short oral hearing is necessary. Consequently, I intend to summarize the judgment and then give both sides time to read it in full before I ask that a number of housekeeping issues be dealt with.
Summary of the judgment
2. In summary the judgment states as follows:
i) On the balance of probabilities, the allegations made by the father against the mother, T and M are without any proper foundation and I accept that the abuse did not take place;
ii) Paragraph 1 of the court order dated the 20 April 2020 shall be varied and sole custody and care and control of A shall be granted to the Petitioner mother with immediate effect;
iii) There shall also be an immediate change of residence, or as immediate as is possible given the challenging circumstances brought about by COVID-19;
iv) The father, his family and nanny P shall have no contact with A in the short term. Longer term I accept that the father shall, all things being equal, have regular contact with A. Consequently, access shall be suspended temporarily and this issue shall be reviewed at a hearing scheduled for August 2020;
v) For the avoidance of doubt it is further directed that A shall have therapy, preferably with the Family Separation Clinic in the UK, supported by a therapist in Hong Kong. A copy of this judgment shall be made available to all the therapists and/or organisations involved in this process. It is anticipated that A will need to have therapy once a week for about 6 months – 25 sessions in total.
vi) A penal notice shall be endorsed on this order;
vii) The issue of costs shall be reserved for argument and shall be dealt with by way of paper disposal.
viii) Lastly I shall ask that the mother do formally provide the undertakings that she had promised to give during the course of the trial and as set out in paragraph 50 of this judgment.
Introduction
3. This is the Petitioner mother’s summons dated the 9 February 2018, subsequently amended on the 10 September 2018 as follows:
1. The care arrangement for the child of the family, namely U, AV, a girl born on XX March 2012 (“A”, under paragraph Paragraph 1 of the Order dated 20th April 2015 be varied to the effect that the sole custody and care and control of the child of the family, namely, U, AV, a girl born on XX march 2012(“A”), be granted to the Petitioner with defined access to the Respondent;in the manner as this Honourable Court sees fit with interim defined access pending the outcome of the police investigation into the abuse on A as alleged by the Respondent.
2. The Respondent’s access to A be supervised until such time as the Respondent has received appropriate therapy/treatment pursuant to the report by Dr JB and until it is assessed by Dr JB that unsupervised access might be appropriate.
4. This is a very difficult case that has played out against the father’s allegations that the mother, her partner T and T’s brother M have physically and mentally abused the child of the family A, a little girl who is now 7 years old, having been born on the XX March 2012.
5. Given the nature of the allegations there has been a Police investigation and T was initially arrested and placed on bail. That is no longer the case and the Official Solicitor has confirmed that the case is now closed. It has also been confirmed by the Police, in their letter dated the 13 August 2019 that the mother has never been arrested for child abuse.
6. In addition to the Police investigation there has also been a Multi Disciplinary Case Conference which was held on the 11 May 2018. This concluded inter alia, that the occurrence of child abuse could not be verified or established.
7. Notwithstanding these conclusions the father remains convinced that the assaults did take place and he has approached the litigation on that premise, initially refusing to allow any access at all. Attempts by the court to get access up and running proved to be very problematic and other issues also ensued, particularly with respect to arranging independent therapy for A. The net result is that A did not receive the therapeutic support that had been originally intended by the court, only attending eight sessions over a 10-month period, three of which were in the presence of Grandma C, the paternal Grandmother. Further she did not have any contact with her mother for almost a year. On the 25 March 2019 the court ordered that the mother have supervised access at the Parent and Child Contact Centre (PCCC) once a week. As far as the court is aware that access is now taking place and it has been going well. At the end of the hearing on the 25 July 2019 I also confirmed that the access could be increased at the discretion of the PCCC, both in terms of length and scope.
The court’s approach
8. There had been discussions from early on in these proceedings about the best way to approach this litigation and whether or not a Fact Finding hearing should be held first. Indeed, reference is made to this in my Ruling of the 2 November 2018 when I gave further directions in relation to therapy. On that occasion I also said inter alia as follows:
9. Although this is a short Ruling, it seems to the court that at this juncture it is necessary to point out that this is all being played out against a very difficult factual situation. The father accuses the mother’s partner (and indeed other people) of serious physical and mental abuse of A. A report has been made to the Police and A has recently been re interviewed by them. It is not clear for what purpose. There is currently an ongoing investigation into those allegations. The court was initially minded to hold a Fact Finding hearing given this scenario, but it is concerned, amongst other things, about potential delay. It seems that no one has yet been charged. The mother for her part denies all of the allegation in so far as they relate to her, and her partner also denies all of the allegations in so far as they relate to him. Attempts to get some form of access up and running have not been fruitful and there have been incidences between the adults when such an attempt was made, which necessitated further police involvement. This was all witnessed by A. The mother says that she is being alienated – successfully at this stage - by the father from A. She has not seen the child for a considerable period of time. The father’s position, rightly or wrongly, seems to be that he is protecting A.
9. Both parties were then represented by specialist Family law firms and barristers. That is still the case for the mother, whereas the father represented himself at the trial. At the end of the first tranche of the trial on the 25 July 2019, after the father’s re-examination had been concluded I stated as follows:
COURT: … Now, I flagged up earlier some of my concerns with respect to how this trial has developed. Certainly insofar as the judgment itself is concerned, I will be dealing with that in two halves in that I will be dealing with the allegations of abuse first and then I will be dealing with the mother’s application for a variation of custody, care and control and access. Now, it seems to me that given that, it is imperative that I see T [the mother’s boyfriend], KA [the paternal Aunt] and C [Grandma C – the paternal grandmother] in the witness box. The question then becomes whether or not we invite them…
10. The exchange continued, but in any event it can be seen that I made it clear that I would need to see T and both KA and Grandma C in the witness box, pointing out that this would be the case, even without the allegations of abuse, as on the father’s case Grandma C will be involved in A’s care and upbringing going forward. It is also clear that historically KA was also very involved with parenting A and that both she and Grandma C have been active participants in the abuse allegations. The possibility of hearing from KA by video link was also discussed. I then ordered as follows:
COURT: ... So it’s further ordered that affidavits or affirmations are to be filed and served by T, KA and Grandma C within the next 14 days. For the avoidance of doubt, other than that, no further affidavit or affirmations to be filed without leave of the court. Costs be reserved. …
11. It is of note that T filed an affirmation and attended the adjourned trial. However, neither KA nor Grandma C filed affidavits/affirmations as ordered and they also chose not to attend the trial in order to be cross examined. Given that I then determined that it would be very hard indeed for the court to place any weight on the affidavit previously filed by KA, and her affidavit was subsequently removed from the pleading bundle.
12. In so far as the approach to the trial is concerned however, and as indicated, I intend to deal with this judgment in two halves, dealing first with the allegations of abuse and secondly with the issue of custody care and control and access and the proposed change of residence.
The issues
13. For the avoidance of doubt therefore, the first issue is whether or not the mother, her boyfriend T and T’s brother M, physically and mentally abused A. Once that has been determined the court is then asked to consider what orders should be made for custody, care and control and access and whether or not there should be an immediate change of residence?
The law on Fact Finding
14. In my judgment FCMC 12118 of 2010, Specific Issues, dated the 7 March 2014, I set out the law relating to the standard of proof and the appropriate approach to be taken by a court in a Fact Finding trial. I have therefore taken the liberty of repeating the relevant sections as set out below:
13. The Family Court does of course follow the civil standard of proof when determining issues of this nature. Thus the court has to decide on the balance of probabilities whether it is more likely than not that these incidences took place.
14. Counsel for the wife has very helpfully set out the up to date position on the law in his closing submission as follows:
The Burden and Standard of Proof of the Allegation
3 It is trite in our legal system that he who alleges bears the burden of proving his allegation. There is no exception in the present proceedings although family proceedings are regarded as quasi-inquisitorial.
4 The majority in the United Kingdom House of Lords in Re H & Other (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 held that the civil standard requiring proof on a balance of probabilities continues to apply where, in civil proceedings, an allegation is made of criminal (or similarly serious) misconduct, but explained that such standard is to be applied flexibly, factoring in the inherently greater improbability of serious misconduct as compared with lesser forms of misconduct, therefore requiring the person bearing the burden of proving the allegation to prove it with evidence of a commensurate cogency.
5 This approach was adopted by the Hong Kong Court of Final Appeal in Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387 (see para. 181 of the judgment). Nevertheless, afterall, the civil standard shall still apply while this Court has to bear in mind the seriousness of the misconduct alleged, recognizing that it carries an inherent degree of improbability.
15. With respect I agree. It is then accepted that the burden of proof lies with the father as he has made the allegations and that given the seriousness of those allegations, he has to prove to a very high standard indeed that what he alleges is infact correct. It follows that he should also provide compelling evidence to support his case that A was abused as claimed.
The law on children’s matters
16. In so far as the second tranche of the judgment is concerned, the main provisions regarding the law on children’s matters can be found in the Matrimonial Proceedings and Property Ordinance, Cap 192 and the Guardianship of Minors Ordinance, Cap 13. Section 19 of the Matrimonial Proceedings and Property Ordinance, Cap 192 states that:
(1) The court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18-
(a) in any proceedings for divorce, nullity of marriage or judicial separation, before, by or after the final decree;
17. The general principles governing such applications are set out in section 3 of the Guardianship of Minors Ordinance, Cap 13, which states that:
GENERAL PRINCIPLES
(1) In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property-
(a) in any proceedings before any court (whether or not a court as defined in section 2) the court -
(i) shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to -
(A) the wishes 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;
List of factors
18. In addition, reference can also be made to the list of factors found in the Children’s Proceedings (Parental Responsibility) Bill. Although this list of factors has yet to find its way into our statute books, I agree as suggested by Ms Irving, that reference may be made to this list and that it may provide helpful guidance in the context of this case. I have reproduced the list below. I should say at the outset that this is not meant to be an exhaustive list, but that it is considered to be a useful guide when considering issues relating to custody, care and control and access and the best interests of children generally. The checklist states that the following matters should be taken into account by the court when determining matters relating to children:
(a) the ascertainable wishes and feelings 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 change in the child’s circumstances;
(e) The child’s age, maturity sex, social and cultural background and any other characteristics 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.”
Background to the marriage
19. The mother sets out the background to the party’s relationship and eventual divorce from her perspective in her first affirmation dated the 10 April 2018, when she said inter alia as follows:
Background
3. Both the Respondent, YKWK (“K”) [the father] and I were born and grew up in the UK. K is now 40 years old and I am now 38 years old. We met each other and started our courtship in our 20s. At that time, both of us were residing in the UK. In around 2007, K’s employer, L offered him a role in Hong Kong. I therefore gave up my job in the UK and relocate to Hong Kong with him. This was also because we had decided on a fresh start after he had been unfaithful to me prior to the relocation decision. After our relocation, we were lawfully married in Hong Kong on XX October 2008. A was born during our marriage on XX March 2012 and is now almost 6 years old. After A was born, I took care of her on full-time basis until A was 5 months old. I then resumed working full-time. Since that time, K and I have employed a nanny, namely Ms. GL (“L”), [Nanny P] who was initially my confinement nanny, to assist us in taking care of A. At the beginning, L only assisted K and me in taking care of A during the day time and she would leave after we got home from work. I would then look after A through the night. In around mid 2014, L became a live-in nanny and started to work for about 6 days and nights a week at the former matrimonial home, remaining flexible when we needed her. Despite the subsequent divorce of K and me, L has continued to be A’s nanny under K’s employment and takes a major role in taking care of A when K is at work.
…
5. In November 2013, K was made redundant in his employment with L. At the beginning of K’s redundancy, K and I planned to relocate back to the UK with A as our families are there. I also resigned from my job soon after for the purpose of relocation. However, by that time, we were barely speaking to each other (only basic communications and mostly regarding A) and I felt that our relationship really had come to an end. Therefore, I started to discuss with K about having a divorce around the end of 2013. K agreed to have a divorce and we also decided to continue to stay in Hong Kong for job opportunities.
6. Since K intended to rely on his redundancy payoff and the sale proceeds of his property in the UK to start his own business, I believed that K would have more flexible working hours with most of his time spent at home with A, whereas I would have to work normal business hours, and therefore accepted his request that the care and control of A be granted to him with reasonable access to me.
20. In so far as A’s care is concerned it is clear that following the divorce there were some issues with respect, inter alia, to the choice of primary school, the MMR inoculation booster, Extra Curricular Activities (ECA’s) and the access arrangements, but despite these problems the mother was still able to see A on a reasonably regular basis. Originally she would visit the former matrimonial home on Hong Kong island in the evenings 3 or 4 times per week and she was also involved with A’s evening routine. This changed at the beginning of 2015 and from that time onwards she would have access on some evenings per week when she took A out for dinner. She also saw her for part of the weekends. In May 2017 the mother moved into a larger apartment and from then on she would generally have staying access with A, each weekend from 11 am on Saturday to around 12 noon on Sunday, in addition to access after school on Wednesday afternoons, when A had a short day. The mother says that this arrangement was not always smooth and that there was some tension with the father and his family. This included her concern that they would accept invitations to birthday parties for A over the weekends and organize other events during her time, cutting short the access period. But notwithstanding this she did continue to see A regularly.
21. From the father’s perspective he maintains that he was the caretaking parent and that the mother was often absent and disinterested, something that in turn the mother denies. He also maintains that A often did not want to see or to spend time with the mother. Again this is denied by the mother. She says that she has always had a close and involved relationship with her daughter.
The Fact Finding component
Has the mother, her boyfriend T and T’s brother M abused A?
Background
22. Following a disagreement concerning the access arrangements over the school Christmas holidays in 2017 the mother received the following letter from the husband’s then solicitors dated the 23 December 2017:
1. We act for K [the father], the Respondent and given to understand you acted for Madam L, [the mother] the Petitioner.
2. It is to our client’s total shock that he was recently given to know that A has been repeatedly physically assaulted and mentally abused over a substantial period of time during your client’s access. In particular:
(a) A was punched in the chest by your client’s boyfriend in the presence of your client, who failed to take any steps to stop the same, and even approved of such violent act;
(b) There, vas a humiliating “farting” game whereby your client and her boyfriend would deliberately fart at A’s face;
(c) Your client’s boyfriend frequently plays violent and disturbing video games that involves shooting of people and animals in A’s presence. He would then act like he would shoot A, which is extremely distressful to her;
(d) A has been taken to stay overnight at your client’s boyfriend’s residence without our client’s consent, at an address of which our client is not aware of; and
(e) During your client’s weekly overnight access, A has been left alone repeatedly in the care of helpers without the consent of our client.
(f) Your client has threatened A that she must keep secret the violent assault mentioned above, namely, the repeated punching, the farting on her face and threatening imitation of shooting at her all of which she has finds immensely distressful, intimidating and disturbing.
3. The above acts of your client clearly amount to serious physical and psychological abuse, which is absolutely intolerable and unacceptable. In order to protect A from further abuse and to ensure her safety and well-being, our client hereby suspend all your client’s access to A immediately.
4. We are instructed that a report of domestic violence has been made to the police and the case is now under investigation.
5. In the meantime, we are taking instructions to make all necessary applications to the Court for a temporary suspension of all access by your client to A.
23. The mother did not have access to A over the holiday period as planned. On the 4 January 2018 T was arrested on suspicion that he had assaulted A with “his hands” on “Saturday’s between the 29 April 2017 and the 16 December 2017”. He gave a cautioned statement, as did the mother who did so voluntarily. He was placed on bail for about a year and then released unconditionally. As indicated above this case has now been dropped and there is currently no ongoing investigation. It is of note that A, who was very young at the time, was also interviewed by the Police, seemingly on more than one occasion.
The father’s case
24. It is the father’s case, as set out in his 1st affirmation dated the 10 April 2018 that A initially told him, KA and Grandma C about the abuse in the following context:
28. On 13 December 2017, I came home from work and overheard A talking to KA about a secret that she had been asked to keep by E [the mother] and T. I found it somewhat disconcerting that A has been asked by E to keep a secret and I was concerned as to what the secret was, and what else A had been asked to keep secret.
29. On 13 December 2017, A told KA and me before bed time, that E and T would fart intentionally on her face and that it would smell of rotten eggs. She told us that the farting would make her sad and angry. In the same conversation, A told us that T would pretend to shoot her with a remote control and that “it made her feel frustrated angry and sad”. She said that T would play scary video games in front of her which involved shooting people, animals and walking dolls, and that the games seemed very realistic. She expressed to us that she felt the game made her feel that the world would end and that “everybody dies”.
30. On16 December 2017, KA, my girlfriend V, my mother, [Grandma C] and I went on holiday to Taiwan. During the trip A told KA and me that she had been called into the principal’s office at school for punching another child. We explained to A that if you grow up to punch people and as an adult it was a very serious matter, and the police would want to come and speak to you about it.
31. On 19 December 2017, whilst at the airport and travelling back to Hong Kong, A informed KA that on a Saturday, E would take her to stay at T’s house, and that whilst there, T would punch her in the chest with two fists which E would encourage by saying to T, “keep on going” and that she liked it. KA promptly told me what A had said and I immediately went over to console her. A also informed KA that E told her that the punching game was a secret between mummy, T and A and that “no one could know about it”.
25. The father repeated these allegations later and added that A also mentioned the following in her Police interview
33. When A was interviewed by the police I was not present in the room, but I was able to observe the interview through a monitor. It was a very difficult interview to sit through and watch A relate such awful events. A informed the police that she had been repeatedly punched by T in the chest with two fists and she demonstrated the action to the police. A said her chest would become sore and red and that E told T to punch her. A also described to the police how E would take her in a taxi to T’s place and that upon arriving at T’s house, when taking off her shoes, T would start to punch her. A would then cry and go to the sofa. T would then come over and start punching her again. During the interview, A informed the police that T has a son called R, who would also be repeatedly punched by T. A said that both she and R would cry as a result of being punched. A said that E would also encourage T to punch R and that E enjoyed it. A and R would then cry together. The police asked A during the interview what her relationship with E was like and she told them “not good”. The police also asked what her relationship was like with me to which he responded “good”.
26. It seems that the father believed then and continues to believe now, that what A had told him and allegedly the Police also, was 100% true. He did so notwithstanding the fact that there is little, if any, corroborating evidence to support what A says.
27. The father added that
45. In and around 16 to 19 March 2018, following the police interview, A told me that on a Wednesday afternoon, E [the mother] would ask P, her nanny, [Nanny P] to go for a walk, leaving her in E’s sole care. Whilst P was on her walk, E would intentionally fart on her face and that it smelt of rotten eggs and that this made her feel angry. After farting on her face, E would shout at A and say “I hate you A and tell your dad I hate him too”. A told me that she was too scared to tell P what had happened in her absence, out of fear that this might get P in trouble with E. She also told me that she did not want to tell me what had happened, or what E had said, because she did not want to upset me.
46. During A’s bedtime story routine on 20 March 2018, A told KA and me that E would tell A to say goodbye to T and E would shout at her “I hate you A” and then T would order A to “stand up to get ready to be punched”. T would then hold her tightly to stop her moving and punch her on the chest in front of E.
28. He then made further allegations against T’s brother M as follows:
54. I also spoke to A about what Ms G [A’s teacher] had told me that morning and A went on to tell me that on Saturdays, whilst at T’s house, M [T’s brother] would take A to the bedroom alone and squeeze A hard around her chest so tight that she would find it hard to breath and shout at her, “I hate you A" and that she felt scared and in danger. On several other occasions, A said M would take her to T’s room and T would lock her in. M would physically restrain her with force and T would punch her. After telling me about these incidents, I broke down in tears and tried to console A as she continued to cry also, while describing these events. A said E simply stayed outside the bedroom playing on her mobile phone whilst these men attacked her. After telling me about these incidents, A told me she is very scared of mummy and what she would do to her if she were to see her again. A told me that it makes her stomach feel sick thinking about it.
…
58. On 7 April 2018, A told me that mummy and T are married, and that A had seen their wedding photo at T’s place and asked her mummy if that was a real wedding dress and her mother had said “Yes”.
29. The father made a subsequent report to the police about M on the 30 March 2018. He also sent pictures of someone he believed to be M to A’s school with instructions that this person was not to be given access to the school premises. It later transpired that the person in the pictures was not M but a friend of both the mother’s and T, who has been visiting the couple. It was later shown that M was not in Hong Kong at the time of the alleged abuse in any event and that he had not visited Hong Kong since 2016.
30. Later other allegations were made including further allegations of child abuse. This followed an incident on the 14 April 2018, which ended up with both parties being bound over for 12 months for fighting in a public place.
The mother’s case
31. Put simply it is the mother’s case that none of these things ever happened and that they were all made up. Initially she believed that as they arose out of the dispute over Christmas access in 2017, that the father had manufactured the accusations to retaliate and to prevent her from seeing A at that time. However, as this case has developed, she has become more and more convinced that the father has taken these steps to deliberately alienate A from her and to remove her from A’s life completely. She says that the father is mentally unstable and that he has “lost the plot”. In so far as the first allegations are concerned she pointed out as follows:
22. K [the father] has made various allegations on how he “discovered” the first suspected child abuse on A and made the First Complaint to the Police on 20th December 2017 in paragraphs 31 to 38 of his 1st Affirmation. Since the First Complaint is currently under police investigation, I have been advised by my criminal litigation lawyer that I should remain silent in respect of K’s allegations. However, I would like to draw to the Honourable Court’s attention the following issues:-
(i) I had always been present with A the entire time when T was also present during my access to A. No criminal activity, ever took place.
(ii) I believe that K went to Canada for a skiing holiday on his own leaving A behind in Hong Kong in January 2018. If K was so concerned about his discovery of the alleged abuse of A at the end of December 2017, and believed this to be true, he would not have gone on a ski trip leaving A behind in Hong Kong at that critical point in time.
(iii) T has never been married. He does not know anyone called “R”.
(iv) I have never left A to stay overnight at T’s apartment. Moreover, neither T nor I has/have a domestic helper at home.
(v) Since the making of the First Complaint by K until now, the date of this affirmation, no charge has been brought against either T or me in respect of the First Complaint. I have never been arrested by the Police as a result of the First Complaint.
32. She further denied the allegations concerning M and other spurious allegations made by Grandma C, to her other family members:
49. Since the resumption of the present proceedings, particularly shortly after both K and I were arrested by the Police, C [Grandma C] kept on sending various text and audio messages harassing my mother. The content of those text and audio messages being that I had gone crazy and I needed to be taken back to the UK, that I am living with two pedophiles, and that T has a 6-year-old son R, and an ex-partner who had committed suicide, and I had allowed my daughter to be raped and beaten. All these allegations are again untrue and had caused unnecessary distress to my family members. Apart from sending my mother messages, C [Grandma C] sent a text message to me on 7th April 2018 asking me to “leave A alone to a normal child-wood for daughter thankrp l”. KA even sent text messages and emails to some of my friends claiming that T, M and I were child abusers. After seeing these messages, I am deeply concerned that what K [the father], C [Grandma C] and KA are doing now is to entirely remove me from A’s life. …
Discussion
33. The difficulty is that whereas the father has made these complaints there is very little to support them – there is no evidence of any injury; for example, there are no medical reports or photographs to support the allegation that T “punched” A’s chest repeatedly and on various occasions. There is also no subsidiary evidence to support his case. For example, there was nothing to suggest by A’s behavior at school during the initial period of time i.e. from the 29 April 2017 – 16 December 2017, (or indeed during the later period) that she was being abused or ill treated in any way. Further A did not generally resist contact with her mother during this time. There was one conversation with A’s teacher which led to second allegation about M, but that happened after the first allegation had been made. Infact, it seems that if A had not said anything then there would have been very little at all to suggest that anything was wrong. The father did claim that A had said various things to both him, KA and Grandma C and that she had also painted some dark or “black pictures” – but again there is nothing to verify this. It is also of note that none of the said paintings were produced. I can also place no weight on anything allegedly said by KA in this respect. When asked about the pictures in the witness box the father said that he had destroyed them because they were just “weird”.
34. It is also of some concern that the father simply seems to have believed everything that A allegedly said to him verbatim, stating continually that his daughter does not/did not lie. With respect it seems to me that this shows a remarkable lack of insight. In my experience, children, like adults lie all of the time and for various reasons, both good and bad.
35. My other concern relates to the fact that it subsequently transpired that the father had bought boxing gloves for A because she was taking Kung Fu lessons, so presumably she was aware of the concept of boxing or fighting. I also had an opportunity to view exhibit LEYY 3-3 produced by the mother which shows A “play fighting” with a mutual friend of both parties. The father can be heard commenting in the background. A also got into trouble immediately before the alleged incidents in December 2017 for hitting another child at school. In such circumstances it seems very likely indeed that A was very alive to the concept of both punching and/or fighting. It is also of note that the father did not tell the police about the Kung Fu lessons or the purchase of the boxing gloves.
The Multi Disciplinary Case Conference
36. The Multi-Disciplinary Case Conference was held on the 11 May 2018. In the letter from the Social Welfare Department dated the 30 May 2018 the following was reported:
During the case conference; the multi-disciplinary professionals were concerned about the child’s condition. After thorough discussion and upon considering all the inter-playing factors, members understood that the child had revealed something that made her distressed / scared, but the occurrence of child abuse could NOT be verified and established.
Considering the highly conflicting family condition, members of the case conference have formulated the following welfare plan:
a. The parents should receive counselling and supportive services on co-parenting;
b. The school will work closely with parents continuously to ensure A’s study and proper development; and
c. A should continue to attend play therapy and may need to receive psychological services concerning the parental conflict at a later stage.
The Psychologist Report on the child by Ms L dated 13 June 2018
37. Ms. L produced a very comprehensive report. She was also a very impressive witness. She visited the homes of the mother, the father and T. Consequently, she was quickly able to establish that what A had said about T’s house did not appear, on the face of it, to be correct. I do not wish to repeat the whole of her interview/s with A, but it seems to me that the following paragraph, in particular, was very insightful:
93. I told her I went to Mr. A’s[T’s] house because I had to see it. She was a bit surprised. She asked if I went in and I said yes. She asked how? I said I told him I had to see it. I asked her to guess what I saw and she said boxing gloves. I said no, I saw a lot of games. Mr. A said she used to love playing Twister and that she was very good at it because she is very flexible. She nodded her head. I told her I saw that there was only 1 room and no bunkbed to which she replied ‘oopsy’ and avoid eye contact by looking down at the puzzle.
94. I explained that my job was not to get her into trouble. She may get confused if people ask her too many questions. It was obvious that she didn’t want to talk about it and changed the subject.
38. Although the father tried to undermine Ms L’s assessment of the situation by suggesting that T had had time to change the furniture and the layout of his flat, it seems to me that it is much more likely that A initially told an untruth and then elaborated on that untruth and has subsequently been found out. There may have been many and various reasons for this.
39. In conclusion Ms. L said as follows:
Conclusion
189. In order to assess a child’s psychological state, one needs to consider the developmental factor and temperament of the child. From my interviews with A, I did not see signs of reactive attachment disorder (markedly disturbed and developmentally inappropriate social relatedness in most context) or separation anxiety disorder (excessive anxiety concerning separation from whom the child is attached) or oppositional defiant disorder.
190. From the timeline, it seems that something must have happened in early December and during their Taiwan trip-that seemed to be the turning point. It was also clear that KA had been portrayed as the surrogate mother and the conflict between KA and Madam L [the mother] intensified as KA increasingly became involved in the decision making of A’s daily life, health care decisions and holiday arrangements.
191. Parental indoctrination can be subtle and effective, especially on young children or done repeatedly. According to Dr. W, children can be programmed against a targeted parent by a parent, by using subliminal suggestions, such as “Your mum not much fun, is she?”, “Your mum didn’t’ call you, did she?” “We had a great time in Spain, didn’t we?”
192. The indoctrination process can be both a conscious effort or an unconscious occurrence. A parent or carer could alienate a child by portraying the targeted parent as a diabolical creature or an abuser. An angry or anxious parent or carer could also project his or her anxiety or anger toward the targeted parent, so the child would want to avoid the targeted parent and feel the need of protection of the favourable parent.
193. Because of an unfounded and bizarre allegation, Madam L [the mother] is now being portrayed as a dangerous and unworthy mother, as a result, A loses one of the most important relationships in her life. A is also at risk of experiencing anxiety and depression later on in life, as she would develop this belief that she had been abused by her own mother.
She further stated in answer to a question from the father that she didn’t believe that the abuse was true.
40. Ms. L also recommended that there be a psychological assessment of the father. She further reiterated her concerns about some of the father’s behaviours and those of his family:
177. Mr. U [the father] seemed to be on a journey to prove that all professionals are wrong, unless they agreed with him about the child abuse and that he and his sister are the only two that know the truth, and they must defend A from harm. He demonstrates Crusade-like Behaviours and suggest that no one cares for A to the extends that his sister and himself do. He could not entertain the possibility that he could be wrong, despite the fact that there has been significant inconsistencies in the allegation. He seems to have lost the ability to be rational, which is the biggest red flag, not only for A to have any relationship with her mother or her mother’s family, but also, A would start to believe in all those allegations that seemed impossible to prove.
178. During the course of the interview, it is evidenced that Madam L [the mother] and A used to have a close relationship. It is also evidenced that the parenting styles and values of the two parents are extremely different. As A is getting older, the conflict between the parents intensified over schooling, diet, activities, holidays, and how they should spend time with A.
179. As Madam L, was becoming financially stable and able to afford a home for A and herself, she is now able to work flexible hours (verified by the HR department). She is obviously trying to exercise her parental rights more than before, and that seemed to create a lot of conflict between the parents since the beginning of the school year, especially prior to Christmas.
180. As a child therapist; I will always listen to both sides of the·story, even when I work with children that have been abused. I also work in a number of schools, so I deal with allegations from bullying to physical abuse on a daily basis, and when a child tells me their side of the “facts”. By the time I interview the different parties involved, I usually get a very different story. The child is not necessarily intentionally lying, but the child only focuses on his or her limited perspective and or not wanting to get in trouble.
181. During the last interview, it was clear that A was trying to suppress any positive feelings toward her maternal grandmother. She remembered the fun they used to have but reminded herself that she only wanted to stay with her daddy and not her mummy.
182. I am deeply concerned that Mr. U [the father] and KA are so certain about the child abuse and sexual abuse that there won’t be any chance of A to have any relationship with her mother and that A would start to believe that she had been abused physically, emotionally, verbally and maybe sexual, given she is so vulnerable to suggestions.
183. Mr. U was cost conscious, hence he had not made any further interview appointments, apart from the first one. I knew that he was not happy with the police investigation; however, he seemed to escalate the allegations of sexual abuse and, on a couple of occasions last week, he asked if I felt comfortable to send a raped victim to the rapist.
184. This is deeply concerning, as it is clear to me that Madam L and Mr. A had already been demonized to the point that it was hard for A, to accept the good relationship that she had once had with her own mother and maternal grandparents.
185. It seemed to me that, no matter what police investigation results were, Mr. U had already made up his mind to stop A from having any future relationship with her mother; he wanted her to be deemed as an unfit mother and for Mr. A to be deemed as an abuser.
186. I am concern of Mr. U’s sharp vicissitude of accusation and thoughts about the potential sexual abuse, where these would lead and how A would be affected by these unjustified fears.
I accept what Ms. L has said in her report as confirmed by her in the witness box and in particular her assessment of the situation as set out above.
The Psychologists reports on the parents
41. JB PhD produced a psychological report on both of the parents. In his report on the father dated the 18 August 2018 he described the father’s mental status as follows:
Mental Status:
K [the father] was oriented to person, place, and time. His memory and concentration were within normal limits. His speech and thought were impaired, as evidenced by tangential, disorganized and magical thinking, and marked difficultly and resistance to taking the perspective of others. His event memory appeared appropriate. His fund of knowledge seemed limited, especially in his understanding of child development. K’s intellect appeared average. His insight and judgment appeared impaired, as evidenced by his difficulty in considering alternative interpretations/hypotheticals to his present situation insistence that his perspective was the only one that could possibly be accurate, and belief that only he could heal the wounds resultant from the current litigation. His mood was anxious during this evaluation and he displayed a restricted range of spontaneous affect.
42. In his Discussion and Recommendations, he added that:
K found itdifficultto consider a situation in which the child’s visitation with her mother was unsupervised. He ultimately acknowledged that such an order is within the realm of possibilities. Althoughit appeared that he would be compliant with such a court order, it did not appear that he could be openly cooperative. Rather, he would tend to interpret an order that is not in complete alignment with his beliefs in his own terms, and actaccordingly. Therefore, it seems necessary that any order for cooperative parenting needs to state explicitly the terms for communication, visitation, and exchange of residence between the parents.
K’s psychological condition is stable and resistant to therapeutic intervention. Indeed, K saw no need for personal psychotherapy and is not amenable for such treatment. He did state that he is willing to attend co-parenting courses. He stated that he has not attended any such course in the past. He also stated that he is willing to attend courses in child development.
This will be discussed in more detail below. However, from the point of view of the Fact Finding aspect of this case, it is of note that Dr B’s findings were congruent with those of Ms L.
T’s evidence
43. As the criminal case was no longer pending, it seemed to me that it was important that T, who was at the centre of the allegations of abuse, should have an opportunity to give evidence. Consequently, he filed an affirmation on the 14 August 2019 and came to court to give evidence on the 16 October 2019. I found him to be a wholly credible witness. I have no doubt at all that this has been a terrible ordeal for him, but notwithstanding that he was both measured and calm in the witness box and able to deal with the allegations in a rational manner. In his affirmation he stated as follows:
7. All K’s [the father’s] abuse allegations in his 1st and 3rd Affirmations against E [the mother], ‘M” [T’s brother] and/or me are entirely untrue and unfounded. I wish to take this opportunityֹto confirm the following facts with this Honourable Court by way of an Affirmation, if this would help this Honourable Court to make a determination on the fact-finding in respect of K’s false abuse allegations:-
(i) I strongly deny that E, ‘M” and/or I have ever abused A, including punching A, or by way of all the other abuse allegations put forward by K [the father], his sister, Ms. U, KLK (“K”) [KA] and his mother, Ms. SHCU (“C”) [Grandma C].
(ii) I do not have a son, and do not know anyone called ‘R’.
(iii) I have no helper, and do not know anyone named ‘RO’.
(iv) It is untrue that E and I had an affair in 2012 as reported by K in L’s (Ms. L’s) report. I live in a one-bedroom flat. I have never lived in a two-bedroom flat with a bunk bed in Hong Kong, as alleged by K.
(v) A has always been accompanied by E (the mother) in my presence, and A has never cried in my presence.
(vi) I have never played any violent video or any shooting games with or in front of A, particularly I have never pretended to shoot A with a remote control as alleged by K and KA. I have also never farted in A’s face.
(vii) My brother, MGA (“M”), was not in Hong Kong at any time in 2017. In other words, he was absent from Hong Kong during the period of the alleged abuse. His travel itinerary for his last visit to Hong Kong was produced to Ms. L (“L”) when she visited my flat at ABC and has now been produced to Her Honour Judge Melloy as an exhibit fromַ E.
(viii) I have never accompanied A during her yearly trips with E to visit their family members in London, nor travelled with A and E on a flight from London to Hong Kong.
(ix) I have always had a good relationship with A, witnessed by many friends. The last time I saw A in December 2017 when we took her along to a pre-Christmas dinner at a friend’s apartment, as the couple have a dog and A is very fond of animals. They, as well as other friends are witnesses to the good relationship we had.
(x) The picture of ‘M’ produced by K is not of my brother. He is a friend of mine who was at my apartment for dinner, along with his girlfriend, who are both witnesses to the good relationship A had with me. I cannot disclose anything further in detail in relation to my said friend and his girlfriend, as I·ֹverily believe that K and/or KA will very likely take any new information to the Police and make further complaints and accusations, and embellish the abuse claims against me and/or my friend. I have to prevent K from causing any nuisance to my friend and his girlfriend, which he has already done to my brother by making false accusations against him.
(xi) I have never been present during E’s interim access on 24th March 2018, 28th March 2018 and 14th April 2018, and I have never intended to be present during such access, at such a sensitive time in A’s life.
8. I found K’s and KA’s allegations are beyond absurd, but terrifying nonetheless. I am 6 feet 2 inches, and fit. If I had repeatedly punched A in the chest once a week over 9 months as alleged by K, she would have been dead. If I had punched her even once, she would have had broken bones, let alone ‘soreness and redness’ as alleged by K in paragraph 33 of his 1st Affirmation.
44. T also confirmed that he was willing and prepared to let A’s therapist take the lead, in so far as reintroducing him into her life was concerned and rebuilding their relationship. He said that they had had a good relationship previously.
I accept what he says in this respect.
M
45. As set out above, other terrible allegations were made against T’s brother, M. I accept that M was not even in Hong Kong at the time of the alleged incidents given that the mother was able to show that he had not been in Hong Kong since 2016 and that the photographs, allegedly of M, which were also given to the school, L and others, were of someone else entirely. The father’s behavior in this regard and that of KA and Grandma C was with respect quite extraordinary.
Conclusion
46. In conclusion then, and on the balance of probabilities, I find that the allegations made by the father against both the mother, T and M to be without any proper foundation. In laymen’s terms I accept that the alleged abuse did not take place and I will consider the other outstanding issues on that premise.
What orders should the court now make for custody, care and control and access? In particular, should there be an immediate change of residence?
Introduction
47. The parties currently have joint custody, with care and control to the father and reasonable access to the mother, by virtue of the court order dated the 20 April 2015. This order also contained the father’s undertaking to maintain and support A until she reaches the age of 18 years or ceases full time education. Originally the mother issued a summons on the 9 February 2018 seeking, inter alia, interim defined access pending the outcome of the police investigation into the alleged abuse of A. As indicated above, on the 10 September 2018 the mother subsequently amended her summons. She currently seeks sole custody and care and control of A with defined access to the father, such access to be supervised until the father has received appropriate therapy/treatment and Dr. B has assessed that unsupervised access might be appropriate.
48. It is of note that the mother believes that A is now at risk of continued emotional and psychological harm and she further believes that this is likely to continue for as long as A continues to live with the father and his family. She is proposing a change of residence, so that A can have appropriate therapy. She is not proposing that A be removed from the father’s life completely but she does suggest that there be a period of time when A does not see the father or his family, in order that the therapy has a chance of commencing and hopefully succeeding. She says that she is the parent who is best able to support A having a relationship with both of her parents. The father for his part wishes the status quo to be maintained and for A to continue to live with him, Grandma C and Nanny P and for A to have access to her mother in a “safe environment”. When asked in the witness box he made no suggestions on how A’s relationship with her mother might be developed in the longer term, although he did say that he would support A eventually having a relationship with her mother. He also said that he was willing to accept continued supervised access at the PCCC.
The litigation and other incidences that occurred during the litigation process
49. In addition to the allegations of abuse the following is also of note:
a) On the 8 January 2018 the father sent A’s school photographs of the mother, T and someone who they thought might be M and made various allegations against them.
b) KA wrote a number of letters to the school in which she discussed with them inter alia how to block the mother from the school communications tools, SS and V. It is of note that the mother was unilaterally removed from these and KA and the father’s girlfriend V were added.
c) The father moved to live in Sai Kung with A and his other family members following the alleged incidents, in February 2018. He did not inform the mother of this or provide her with the address or other contact information.
d) Notwithstanding the court’s order on the 21 March 2018 for interim access namely that the mother should have unsupervised access on Wednesday afternoons in Sai Kung for 4 ½ hours and supervised access for the whole day on Saturday’s, A only saw her mother on three occasions namely on the 24 March, 28 March and 14 April 2018. It is of note that she had not seen her mother for nearly 4 months at that point. There were difficulties on each occasion emanating from the fact that the father did not agree that any access should be unsupervised and as a result he orchestrated his own attendance at those sessions. In addition, on the 24 March 2019 A attended access and was found to be wearing a yellow paper triangle on a black cord around her neck. She told her mother that it was to “keep away the bad stuff” presumably whilst she was at the mother’s house. In the witness box the father said that this was a “lucky charm”. On the 14 April 2018, during the Saturday access, immediately after the Easter school holiday, when no access had been allowed given that the court order referred to access during term time, an incident ensued between the mother, the father and KA. The mother produced a video clip taken shortly before this unfortunate event, from her phone, which shows a very unhappy A refusing to go to her mother’s apartment. Both mother and father were charged with fighting in a public place and on the 5 June 2018 they were both bound over for 12 months. It seems that during this fracas, which was witnessed by A, the father and KA both accused the mother and T of being pedophiles and child abusers. Notwithstanding this the father wrote to the school and told them that the mother had been arrested on that day for child abuse and was on bail. This was a deliberate lie on his part. A was also taken to hospital following this incident and she remained there for 9 days.
e) The mother did not have access to A from the 14 April 2018 until the court order in March 2019.
f) The father unilaterally appointed a play therapist for A, Ms SM. This was not done with the mother’s permission. Difficulties then ensued. It seems that Ms SM was appointed on the premise that the alleged abuse had taken place. It is also of note that Ms SM’s did not liaise with the mother. On the 19 June 2018 I ordered that this therapy cease forthwith. In doing so I accepted Ms L’s assessment that this could be very damaging for the child, if the abuse had not taken place as claimed. There was some confusion during the trial about the number of therapy sessions attended by A, with it initially being suggested that she had had 17 play therapy sessions. Although this was not proven it was clear that she had attended a significant number of sessions with Ms. SM prior to the order of the 19 June.
g) Further problems then ensued with respect to the appointment of a therapist, to provide A with intensive (and independent) therapy for herself. Eventually this led to the hearing of the 19 October 2018 and the subsequent Ruling dated the 2 November 2018. Reference may be made to that Ruling as appropriate. In conclusion I said as follows:
Decision
12. Consequently and for the avoidance of doubt, order 4 contained in the court order dated the 19 June 2018 shall be discharged. It is further directed that A shall commence therapy with Dr A immediately and for 120 minutes per week. This is not currently in anticipation of intensive family therapy or indeed reunification therapy. A copy of this Ruling is to be provided to Dr A and as indicated during the hearing a penal notice shall be endorsed. Thus an order shall be made as follows:
1. The Respondent [father] shall take or arrange his agent to take the child of the family, namely U, AV, a girl born on 3rd March 2012 (“A”), to attend the intensive therapy sessions, for 120 minutes per week with the jointly appointed child psychologist, Dr. A O-V pursuant to paragraphs 3 of the Order dated 19th June 2018. For the avoidance of doubt the cost of those sessions shall be split between the parties equally.
2. Order 4 of the court order dated the 19 June 2018 shall be discharged.
3. A penal notice be endorsed on this order and personal service of the Order be dispensed with.
h) In a nut shell although the court had ordered that A should receive intensive therapy and eventually also ordered, in the absence of agreement between the parties, that Dr O-V be appointed for that purpose, the father did not co operate with that appointment. He was clearly very unhappy indeed at the approach taken by Dr OV, which he said was more in the nature of an investigation. He also rejected any notion that the underlying reason for the therapy was to mend the relationship between mother and child; he was certainly opposed to the concept of “reunification” therapy. Although he agreed to give permission for Dr OV to communicate with the school counselor, he did not follow through with this. He objected to Dr OV reading into the case, even though I had directed that she be provided with all of the pleadings and reports to date. He also insisted that a third party sit in on the sessions, namely Grandma C, even though Dr OV made it clear that she could not work properly in that environment as she was unable to form an appropriate therapeutic relationship with A. There were also other difficulties, including the father cancelling appointments at short notice and ultimately stopping all sessions at all prior to the hearing in October 2018. He then informed Dr OV of the outcome of that hearing BEFORE I had handed down my Ruling. Ultimately Dr OV resigned not once but twice, stating finally on the 5 February 2019 as follows:
To Whom It May Concern,
It has come to my attention that the following incidences have taken place:
· A parental party is not in agreement with interventions being conducted by myself (Dr. A OV). This includes any interaction and the forms of therapeutic approaches considered necessary and relevant.
· A parental party is breaching confidentiality and has requested confidential notes and records (between therapist and other parties). This is despite both parents’ written consent for liaising with relevant parties (such as school or other parent) when clinically necessary.
· This also includes the request of information about other (non-relevant) parties attending school and SPOT.
· Intentional obstruction of information important to support child clinically.
· Improper boundaries and coaching to child in order to keep child from divulging information and develop therapeutic rapport.
· Threatened or insinuated litigious actions against therapists.
· Repeated bounced checks, missed payments and missed sessions - causing a substantial bourdon on our administrative staff.
Considering the above, it is concluded that therapy may be counter productive given that said actions can:
· potentially create a rift between the child, parents and therapists
· perpetuate unhelpful polarisation of caregiver roles
· place child in unstable position to have to choose parties to trust
· cause pervasive and long term negative consequences with respect to the healthy development of child’s sense of self, and relationships and undermine their need for stability.
While it is still strongly advised that the child and caregivers seek therapeutic support, current circumstances impede therapeutic success and are believed to be further damaging at this time.
…
i) Dr. OV later confirmed, on the 5 March 2019, that the parental party in question was the father. She said that she could not resume therapy because this placed A in a detrimental position and that:
My hope is that this termination of services will somehow aid in the court’s understanding of the family dynamics, necessity in future treatment, and aid in the decision regarding parental access/custody.
j) As indicated above, there were also other concerns including the fact that the school removed the mother from two web sites, one called SS, where a parent is able leave messages for their child and to comment on their child’s work etc and the other called V. This was done at the request of the father and KA. It is of note that KA was then nominated to be the contact person in lieu of the mother. It seems that the school concurred because the father was the parent with care and control.
k) There have also been other issues concerning both KA and Grandma C and their inappropriate involvement in this litigation and the care of A. This includes KA’s correspondence with the school and communications sent to other family friends and acquaintances in which all manner of accusations are made against the mother, T and M, without any proper foundation.
Each party’s’ proposals
The mother’s proposals
50. It is now the mother’s case that the father has deliberately sought to remove her from A’s life and that he has also tried to alienate A from her. She asks that A be immediately returned to her full time care. She says that although she is currently living with T, that the intention is that she will return to live in her own flat on Hong Kong Island and that A will live with her and continue to attend the Hong Kong Academy in Sai Kung. She will not cohabit with T in the short term. This will however, mean that A will need to take a long commute to school. The mother has checked this and has confirmed that school buses are available. A will be dropped back at Happy Valley at about 4:30 pm each day. The mother will continue to work in the Hopewell Centre on Hong Kong Island and she intends to live in Happy Valley. Her company is aware of her situation they have indicated that she will also be able to work from home on occasions. The mother works in internal communications. She also acknowledges that she will need to employ at least a part time helper to help take care of A in the period between A returning from school and the end of the mother’s normal working day at about 5:15 pm. In her affidavit she also said that her father and possibly her mother would also be able to come to Hong Kong in order to assist with the care of A in the short term. She also wishes A to have therapy and that this be supported by a specialized therapist in alienation cases. She proposes that A work with a therapist from the Family Separation Clinic in the UK, together with a therapist in Hong Kong. She says that she will need some financial assistance from the father and that if necessary she will make a further application for that support.
The father’s proposals
51. The father for his part proposes a continuation of the status quo. He says that A should continue to live with him in Sai Kung, which is very close to the school. He is now working full time, but he will continue to be assisted by both Grandma C and Nanny P, who has helped to take care of A since she was born. He says that he does not oppose A seeing her mother in a safe environment namely the PCCC. He does not appear to be able to contemplate the possibility of any other outcome.
52. As indicated above I heard from both of the parties in the witness box, together with Ms L, Dr JB, the Social Welfare Officer Ms. YHM, the mother’s sister, Ms MYLL and T. Although the court directed that both Grandma C and KA attend the trial in order to be cross examined, as I have already explained they did not do so. In addition, I have been greatly assisted by a report filed by the Official Solicitor, who also represented A at the trial.
The reports
The Social Welfare Report
53. It is trite but worth repeating that recommendations made to the court in social welfare reports although not binding are generally considered to be persuasive. The reports are said to be the “eyes” and “ears” of the court. In this instance the Social Welfare Report was filed on the 5 June 2018 before the Mother filed her amended summons. At that stage the focus was on the resumption of access only and to that end the Social Welfare Officer recommended as follows:
Remarks and Recommendation
29. The information gathered revealed that the mother used to have regular access to the girl after divorce but the access was suspended since December 2017 owing to the alleged abusive incidents. The patents’ distrustful relationship and ineffective communication further complicated the situation. Nevertheless, it should not be arguable that the child, for her best interest, has to maintain stable and positive contacts with both parents, and hence the access with the mother is suggested to be resumed judging from previous smooth interaction with the mother and without the presence of her boyfriend or other related persons who were viewed as a threat towards the girl. Since the girl appeared to be trapped by the alleged abusive incidents, though could not be verified of the actual happening according to the conclusion from the member of MDCC, special attentions have to be paid onto the girl’s emotional condition and her readiness to have access resumption. The assessment and advice from the private clinical psychologist on the child become crucial in the access planning. Although the report is not yet available upon the submission·of this report, it is good that the mother was willing and ready to follow the girl’s pace and the advice from the clinical psychologist in the future access arrangement. Co-parenting counseling may also be beneficial for both parents to help them work together constructively and communicate effectively with the ultimate goal to protect and improve their child’s well-being.
It is of note that the father did not allow A to be interviewed with her mother for that report.
54. Although the Ms. Y confirmed in the witness box that she had seen the MDCC report and on that basis she was inclined to believe that the alleged abuse had not taken place she was not really in a position to take the matter very much further forward. However, she did confirm that A had given her some photographs and that at the time she had been concerned that the child had been told what to say to her about those photographs – in other words that A had been coached. She reiterated that at that early stage the father remained opposed to access. She had also spoken to the school counselor who had reported to her as follows:
15. At present, A was studying K3 in Hong Kong Academy. She had whole day school, except Wednesday with morning session only. She also had a private Ballet Class at 9:00 a.m. for 45 minutes in every Saturday in Happy Valley. Ms. C N, [C] counsellor of the girl’s school commented the good performance of the girl at school in all aspects. The girl was articulated and could well express herself. Her school attendance was stable in the past but had certain days of absence in recent two months saying for her hospitalization to investigate the alleged suspected abuse incident happened in April and meeting with the private clinical psychologist etc.. Learning that the girl was facing a difficult moment of the family change, C said the school has offered the girl support and counseling. Both parents were also invited to involve in the counselling process and they gave active response on it. To show support to the girl, C also met A before and after the access on 28.3.2018, the first access after school after three months. When she met the girl on 29.3.2018, the girl expressed her happiness to meet the mother again and exhibited no emotional distress for the access arrangement. Besides, owing to the alleged suspected child abuse, incidents reported by the father, the school also arranged play therapy for the girl. No abnormality or emotional distress of the girl was detected so far.
55. I agreed that a further updated Social Welfare Report would not be necessary given the fact that the court had also been assisted by the filing of Ms L’s report, Dr B’s reports and the Official Solicitor’s report. There was also a concern that A was being over interviewed and that this was likely to do more harm than good at this stage.
Ms L’s report
56. As I have said previously Ms L filed a very comprehensive and useful report. I largely accepted the recommendations that were made and I attempted to put some of these into effect prior to the trial. Ms L also explained in the witness box why she had approached A as if the allegations of abuse were true. This is also set out in Ms Irving’s closing submission as follows:
81. Ms. L explained in her evidence why she would ask the Mother to say to A that T would never punch her again (with reference to paras 100 and 170 of her report) and said;
“It is easier for children of A’s age - once they are caught lying, they would defend themselves) so if you go along with their story.”
82. She was asked about the damage that can be cause to children from the situation that A is in;
Q Can you explain when you talk about damage can be caused to children if they are allowed to believe in these things, what are the long-term ramifications for a child in A’s position with these influences?
A A lot of conflicting information in her head, what is happening, Children need to be able to trust their parents, very hard for her to trust either of them.
Father is obviously telling her she cannot trust Mother; there’s a conflict for her
Q Any in1pact on her psychological well-being?
A She won’t be able to trust her own judgment, very hard for her.
83. Ms. L was asked by the Official Solicitor about therapy; the length and frequency of sessions. She said:
“I still believe she needs intensive therapy (just for herself, with no obstruction) – from my experiences, needs 4-5 sessions to build up, a total at least 20 sessions.”
84. Asked by the Judge if that would be “weekly/ bi-weekly/ monthly” she answered “Weekly is ideal. Monthly would be too long a gap”.
85. Ms. L also confirmed, to the Official Solicitor’s question, that A should re-establish her relationship with T.
57. Ms. L was also concerned about Ms SM and the fact that she had seen A without any input from the mother. She was of the view that this was very bad practice and that A may have been receiving therapy that was not appropriate for her. For the avoidance of doubt I accept what she says in this respect. It was for this reason that she decided not to interview Ms SM. Again I accept her reasoning on this point.
58. In addition, Ms. L was very concerned about the psychological effect on A going forward in the event that the allegations were found to be false. Dr B agreed with her on this point in the witness box.
59. When asked by the Official Solicitor Ms L said that she thought A would probably need one therapy session a week for the next 6 months or so – i.e. about 25 sessions in total. She did not think it was a good idea for the mother to employ Nanny P, even if that was an option.
Dr B’s reports
60. Again, as indicated above Dr B filed a psychological evaluation on both parents dated the 8 July 2018 (for the mother) and the 16 August 2018 (for the father). He found the mother to have an adjustment disorder with disturbed emotions that had arisen as a direct result of these proceedings. He also said that her prognosis was good.
61. However, Dr B was concerned about the father’s emotional and psychological state, and as set out in paragraphs 41 and 42 above and noted in particular his inability to view a situation from any other perspective other than his own and to interpret any court order from that perspective. Ms Irving says that this is exactly what has happened during this litigation:
96. While this was said by Dr. B more than a year ago, this has been exactly what has been seen in the Father’s conduct during the entirety of this litigation. It was clear beyond peradventure that the Father has acted exactly as he chose to and to ignore the Orders made in this Court. That can be seen in his approach to therapy with Dr. O-V, starting with refusing to cooperate with her appointment, including telling her not to read documents the Court ordered she be provided with, insisting grandma be present, and in his repeated cancellation of sessions followed by telling the therapist she was not doing her job right. It can also be seen in him deciding to impose supervision on access, in his refusal to consent to the school speaking to the therapist in spite of having told the Court he would agree; and thereafter it could be seen in his continued refusal to produce all the correspondence between him and A’s school that he was ordered to produce. The list of examples is long.
With respect I agree with this assessment of the situation. Dr B confirmed that in his view it would be very difficult indeed for the mother to co parent with the father, mainly because the father would always believe that he was 100% correct in everything that he thought and did with respect to A.
62. During his cross examination Dr B also confirmed that “personality” or “character” is generally considered to be hard if not impossible to change, whereas emotions or mood are more susceptible to therapeutic intervention. He confirmed that placing A in her mother’s care would not pose any risks to A.
The Official Solicitor’s report
63. The Official Solicitor filed a very detailed and helpful report dated the 19 March 2019. In preparing this report Ms Ip also had sight of the other reports referred to above and she interviewed A.
64. Ms. Ip was very concerned that A should have intensive therapy as recommended by Ms L and in that context she recommended as follows:
Intensive Therapy
87. It is of great concern that A is in urgent need of Intensive Therapy as recommended by L in her Psychological Report on A.
88. However, disregarding professional advices and Orders of the Court, the Father failed to recognize the importance of having A to receive prompt and continuous psychiatric therapy and also fails to exercise sensible decision to facilitate the Intensive Therapy, which is detrimental to the interest of A.
89. Dr. B is of the view that the Father's level of reflection on himself, the current situation and evaluations is limited. In parenting, his perspective is enabled by a very-limited understanding of child development. The Father would tend to interpret an order that is not in complete alignment with his beliefs in his own terms, and act accordingly.
90, It appears that the ability of the Father to reach any rational accord in respect of the Intensive Therapy is so deeply undermined that to compel attempts at cooperation will not protect the interests of the A but only leave her more vulnerable. The Father was also preoccupied with feeling of hatred and antagonism against the Mother that he has overlooked the welfare of A.
91. As Dr. A has terminated the services to A, the Mother has proposed an alternative therapist, Ms. KR from Jadis Blurton Family Development Center for A, pending the Father’s reply.
92. Bearing in mind that the welfare of the child is the first and paramount consideration, it is necessary to monitor the progress of the Intensive Therapy to be resumed, the Father’s demeanors in this respect and its possible impact on A. We also suggested inviting Dr. A to provide a synopsis on the therapy she has given to A.
93. We make the observation that unless there is substantial progress in the Intensive Therapy, with positive support and facilitation on the part of the Father; consideration should be given to assess whether the Father is indeed a suitable caretaker of A.
94. A transfer of residence is a serious matter and will undoubtedly upset A. However, if such need is apparent in this case, it appears that it is in the interest of A for her to be removed from the Father’s influence and control. Subject to the assessment and recommendation by the child psychologist, it may be appropriate for the interim care and control of A be granted to the Mother in order to enable A to receive prompt and continuous Intensive Therapy.
95. In the event that interim care and control of A is granted to the Mother, it is further suggested that the access by the Father should be supervised by a Social Welfare to safeguard against the Father’s incongruous influence on A, and to avoid A being caught again in between the disputes of the parties.
As will be seen I largely agree with these observations.
Discussion
65. I accept that in the context of this case that it would be helpful to go through the list of factors as set out in paragraph 15 above, when considering what would be in the best interests of A going forward. This was helpfully also considered by both Ms Ip, in the Official Solicitor’s report and Ms Irving in the closing submission for the mother.
a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
66. A has stated to everyone who has asked i.e. the Social Welfare Officer, Ms L and Ms Ip that she wishes to live with her father. I tend to accept however that little weight can be placed on those views given her tender age and the fact that I accept that her relationship with the mother has been seriously undermined by the father and his family. Ms Ip puts it thus
67. Although the views of the child will be taken into account, the weight to be placed on the child’s expressed wishes will depend very much on the age of the child and her level of maturity. In light of the age of A, she is still far from the level of understanding and deciding what is in her best interest, in particular in the present case, in maintaining a personal relationship with both of her parents.
With respect I agree.
b) the child’s physical, emotional and educational needs;
67. At present it seems that Nanny P is largely responsible for A’s physical needs, with the assistance of Grandma C, when she is in Hong Kong, and the father. The father has also taken over almost sole responsibility for A’ educational needs, although this was arguably done without the mother’s consent. From an emotional perspective however I accept that it cannot be in A’s best interest for her not to have a proper relationship with her mother. I also accept that the father’s own behaviour is a matter of some concern in this respect and that he is currently unable to meet all of A’s emotional needs including her need to have a relationship with her mother.
68. Ms. Irving summarizes the situation as follows in her closing submission:
147. A needs stability with a rational parent. She needs not to be manipulated into believing that she has been abused. She needs therapy. She needs a proper relationship with her mother and her maternal family. None of these things are available should she remain living with her father.
I agree.
c) the nature of the relationship of the child with each of the child’s parents and with other persons;
69. A’s relationship with her mother and her maternal family was interrupted. It is now important that it be fully restored. I also accept that A’s relationship with her father and KA and Grandma C is unlikely to be a healthy one and that in all probability it has had a damaging effect on her. It is also though acknowledged that notwithstanding this A has a seemingly close emotional bond with her father, KA, Grandma C and Nanny P, who has cared for her since she was a baby.
d) The likely effect on the child of any change in the child’s circumstances;
70. Although ultimately it is accepted that a change of circumstance will be good for both A and the mother and T, in the short term it is accepted that changing the status quo and moving A to live with her mother is likely to be very challenging and difficult for her.
e) The child’s age, maturity, sex, social and cultural background and any other characteristics which the court considers relevant;
71. A has just turned 8 years of age. She is an Asian child, born of Asian parents who were brought up in the United Kingdom. Ms Ip, the Official Solicitor said the following of her:
66. A is now 7 years old. She is observed to be polite, happy and responsive. She is forthcoming and spontaneous when expressing her views, but somehow her recollection of some past events/incidents was fragmentary and uncertain. She appears to be in good mood and relaxed during the whole interview; and has not exhibited any fear or anxiety even when she mentions what the Mother and/or T had done to her in the past.
…
68. A is now primarily in the care of the Father with the assistance of Nanny P. As the Father is in full-time employment, A is mainly looked after by Nanny P. While the Grandma is more or less a companion rather than an independent hands-on carer. It is observed that A has a good relationship with the Father, Grandma and Aunt.
69. On the other hand, A has shown aloofness and rejection towards the Mother. Apparently, her negative feelings on the Mother is largely due to the Allegations.
I accept this to be the case.
f) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
72. As indicated above, this is probably the central difficulty in this case. Although I have no doubt that the father, and his other family members, love A very much, the fact that he has believed everything that A has said about the allegations, has ultimately proved to be extremely damaging for her, as it has deprived her of her relationship with her mother and other maternal relatives for approximately two years. This is a very long time for such a young child. Putting it as neutrally as possible, Dr B said that the father had a “very limited understanding of child development”. I accept that to be the case. I also accept that given the father’s character it is very unlikely indeed that he will accept this analysis, or the damaging effect that it has had on A.
73. The other difficulty is that the father has shown that he is not willing to support a therapeutic intervention for A, unless it is done on his terms. It is also unlikely that he will support any therapy that will be focused on reunification with the mother and her family and ultimately with T. It is of note that this was the case historically and that even a penal notice (endorsed on the court order dated 2 November 2018) did little to assist attempts to ensure that A had proper therapeutic support from Dr. OV. The concern is that these behaviours may continue unless A is removed from the father’s care.
74. Ultimately I also accept that A is likely to have been influenced by the father and his family’s views and that in turn this is likely to have undermined the mother-child relationship.
75. The mother for her part has shown that she is determined to ensure that A is removed from an unhealthy environment and that every attempt is made to ensure that her relationship with her daughter is restored. She has proposed specialized therapeutic intervention with support from a therapist in Hong Kong.
g) Any harm which the child has suffered or is at risk of suffering;
76. As indicated above A may be at risk of continued psychological harm if there is no intervention.
h) Any family violence involving the child or a member of the child’s family;
77. This has been dealt with in the Fact Finding component of the judgment and will not be repeated here.
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;
78. I accept that the mother is better placed at present to meet A’s needs, notwithstanding the fact that the father has proved able to meet her physical needs to date in terms of providing a comfortable home for her, ensuring that she has a good education and that she has good care when he is unable to look after A himself. I accept too that the mother will be able to do these things, although she may also need some financial support from the father in order to achieve this for A. Dr. B explained it well when he said in the witness box that the father may be able to give A what she wants and what makes her happy, but he may not be able to provide her with what she needs from a developmental perspective. He also reiterated his concern that the father was not very “child centered”.
79. From a slightly different perspective it is of note that both parents are working full time and both will need to rely on other people to assist them in caring for A. To that end the father said initially that Grandma C was intending to spend more time in the UK and then on the other hand that she would be coming to Hong Kong in order to help him and Nanny P in caring for A. Likewise the mother has said that she will also rely on her parents help, at least in the short term. There was some confusion during the trial concerning the time that the father is able to get home. He confirmed that his working hours were generally from 9:00 am to 5:30 pm, but that he often did not get home until about dinner time at c 7:30/8:00 pm when A had her second supper and ate her vegetables. The mother says that she should be able to get back home by about 6:00 pm.
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;
80. This is largely moot and I will not comment on this section further.
The parties
81. Generally speaking it is incumbent upon judges in Children’s trials to see the parties in the witness box. This case was no exception. In this instance I was also greatly assisted by the reports prepared by Dr. B. From my own observations everything that Dr. B had flagged up about the father was borne out by his behaviours and his approach to the litigation generally. In particular, it was clear that he still believes that what A said was true and that he is protecting her by proceeding with this litigation. Given that I think it extremely unlikely that he will accept the contents of this judgment or indeed the related order, which is why in part I have decided to deliver this judgment in court. I shall also endorse a penal notice on the order.
82. The mother was also accurately portrayed by Dr. B. I have no doubt that this whole situation has been enormously difficult for her. Generally, I found her to be a straightforward, honest and ultimately credible witness.
Other witnesses
83. I also heard from the mother’s sister who was able to talk about her observations of the mother’s relationship with A historically and the difficulties that she had observed since December 2017. I also found her to be wholly straightforward in her approach and entirely credible.
Decision
Should there be an immediate change of residence?
84. It is a very difficult matter indeed to change the residence of a child, when their relationship with the current non caretaking parent has been damaged, but in this instance it seems to me that there is no alternative. It is now imperative that A have intensive and appropriate therapy which is designed to ensure that her relationship with her mother and her maternal family, and ultimately with T, be restored. I do not believe that that will be possible whilst she continues to reside with the father. I am also comforted in that she has been seeing her mother at the PCCC, and by all accounts that access has gone well.
85. This order shall also be made on the premise that the mother undertakes to do the things that she has offered to do in paragraph 50 above and I will stand down in a minute so that those undertakings may be drafted and signed.
What order should be made for custody, care and control and access?
86. It follows that sole custody and care and control of A shall vest in the petitioner mother and paragraph 1 of the court order dated the 20 April 2015 shall be varied accordingly. Ms. Ip has suggested that this should be an interim order. However, it seems to me that there must now be some finality with respect to these proceedings, which have been dragging on now for over 2 years. It is not in anyone’s interest for this to carry on for any longer than necessary. Consequently, I shall NOT make an interim order, save in so far as the access arrangements are concerned. I am concerned about the father’s possible reactions to this judgment and that of his other family members given the extreme nature of his stance so far. Consequently, I intend to suspend all access between the father and A initially. It almost goes without saying, but for the avoidance of doubt it follows that A shall also have no contact with Grandma C, KA or Nanny P either in the short term. I would suggest that this be reviewed after there has been an initial assessment undertaken by A’s new therapist and I will ask the Official Solicitor to file a short updated report in this respect within the next 6 months. Longer term I accept entirely that the father should have an opportunity to have a proper relationship with A and to see her on a regular basis.
Costs
87. The issue of costs shall be reserved for argument and shall be dealt with by way of a paper disposal. The Petitioner mother has indicated that she wishes to seek her costs, possibly on an indemnity basis notwithstanding the fact that this is a children’s matter. I shall therefore order that the parties do file and mutually exchange written submissions on the issue of costs only, such submissions to be limited to no more than 10 A4 pages, 14 font and double spaced and to be filed within the next 28 days. Leave be given for each side to file and serve a short submission in reply, if so required within 14 days thereafter. The reply submissions to be no longer than 5 A4 pages, 14 font and double spaced.
The Order
88. UPON HEARING counsel for the Petitioner, the Respondent in person and the Official Solicitor for the child of the family, A.
AND UPON the Petitioner filing an undertaking today as set out in paragraphs 50 and 85 above.
IT IS ORDERED THAT
1) Order 1 contained in the court order dated the 20 April 2015 shall be varied to the effect that the sole custody and care and control of A, a girl born on the XX March 2012 shall be granted to the Petitioner mother with immediate effect.
2) There shall be an immediate change of residence and A shall be handed over to the Petitioner mother with the assistance of the Social Welfare Department on a date to be determined today.
3) For the avoidance of doubt access to the Respondent father shall be temporarily suspended pending receipt of an updated report from the Official Solicitor.
4) The issue of access shall be adjourned to the 31 August 2020 at 2:30 pm.
5) Both parties do personally attend that hearing.
6) Both parties shall file a Statement of Proposals in relation to access only 3 days prior to the hearing.
7) The Official Solicitor do file and serve a short updated report on the issue of access only, to be filed 14 days prior to the hearing.
8) Costs shall be reserved and shall be dealt with by way of a paper disposal as set out above.
9) A penal notice be endorsed on this order.
10) There be liberty to apply on an urgent basis.
11) For the avoidance of doubt it is further directed that A shall have therapy with a specialized therapist from the Family Separation Clinic in the UK, or a similar organization, such therapy to be supported by a therapist in Hong Kong. Leave is given for a copy of this judgment to be provided to any organization or individual therapist involved in A’s therapy going forward.
| ( Sharon D. MELLOY )
District Judge |
Ms. Frances Irving instructed by Haldanes for the Petitioner
The Respondent appeared in person