THE LAW REFORM COMMISSION OF HONG KONG

SUB-COMMITTEE

ON

GUARDIANSHIP AND CUSTODY

CONSULTATION PAPER

THE LAW REFORM COMMISSION OF HONG KONG

SUB-COMMITTEE ON GUARDIANSHIP AND CUSTODY

CONSULTATION PAPER

CONTENTS

Chapter

Introduction

Terms of reference

Scope of the reference

Private law and public law

The sub-committee

Membership and method of work

Format of the Consultation Paper

Part I - Substantive Law and Practice

1. Background to the Present Law

Introduction

Role of the State

Bill of Rights Ordinance (Cap 383)

United Nations Convention on the Rights of the Child

Parental rights

Children’s rights

Divorce as a complex process

Stages of divorce

Impact of the divorce on children

Effect of access on child’s adjustment to divorce

Long term harm caused by divorce

Conclusions from research

Joint custody

2. Current Law and Practice in Hong Kong

Part A - Current legislation

a) Guardianship of Minors Ordinance (Cap 13)

Definition of terms

Legal effect of custody orders

Applications for custody and access

Guardianship

Powers of the Director of Social Welfare

Guardian of the estate

Proceedings concerning a minor

Wardship

Duties of the Official Solicitor

b) Matrimonial Causes Ordinance (Cap 179)

c) Matrimonial Causes Rules

Application by third parties

Separate representation

d) Matrimonial Proceedings and Property Ordinance (Cap 192)

e) Separation and Maintenance Orders Ordinance (Cap 16)

f) Domestic Violence Ordinance (Cap 189)

g) Adoption Ordinance (Cap 290)

h) Protection of Children and Juveniles Ordinance (Cap 213)

Part B - Miscellaneous matters

Age of marriage

Medical treatment

Contempt of custody orders

Enforcement of court orders overseas

Enforcement of mediation agreements

Privilege

Hearsay

Part C - The court in practice

Standard procedure in divorce

Pre-trial reviews

Existing support services

Hong Kong community mediation programmes

Conclusion

3. Comparative Law: England and Wales

Children Act 1989

Parenthood and guardianship

Parental responsibility

Persons with parental responsibility

Scope of “child”

Scope of parental responsibility

Acquisition of parental responsibility

Guardianship

The power to act independently

Joint responsibility principle

Delegation of parental responsibility

Carers without parental responsibility

Welfare principle

Checklist of factors

Views of the child

Welfare reports

Evidence by children

Parental agreements and the non-intervention principle

Duty to approve arrangements

Types of orders

Residence order

Contact order

Specific issue order

Prohibited steps order

Circumstances in which orders may be made

Application by third parties

Other powers of the court

Separate representation

Enforcement of section 8 orders

Delay

Jurisdiction

Allocation of proceedings

Privacy

Wardship

4. Comparative Law: Scotland

Parental responsibilities

Parental rights

Medical treatment

Views of the child

Guardianship

Types of orders

Checklist of factors

Duty to approve arrangements

Delay

Conclusion

5. Comparative Law: Australia and New Zealand

Australia

Australia and the Children Act 1989

Family Law Reform Act 1995

Parental responsibility and parenting orders

Breaches of orders

Best interests and checklist of factors

Involving the child

Separate representation

Domestic violence

New Zealand

New Zealand child support and access

Children in the New Zealand Family Court

Women and children’s perspective of the Family Court

6. Options for Substantive Law Reform in Hong Kong

Introduction

Part A - General principles

Welfare principle

Best interests

Statutory checklist of factors

No-order principle

Part B - Parental responsibility and rights

Part C - Acquisition of parental responsibility by guardians

Part D - Types of orders for children

Change of surname

Part E - The voice of the child

Wishes of the child

Views of the child

Separate representation

Part F - Reforms to relevant matrimonial ordinances

Separation and Maintenance Orders Ordinance (Cap 16)

Domestic Violence Ordinance (Cap 189)

Age

Director of Social Welfare’s powers

Enforcement of orders

Consolidation of ordinances

Policy co-ordination

Part II - Non-adversarial Dispute Resolution Process

7. Introduction to Non-adversarial Dispute Resolution Process

Adversarial process

Mediation as a family dispute resolution process

Research on negotiation and settlement

Counselling, therapy and mediation

Roles of the mediator

Functions of a mediator

Misconceptions by lawyers of the role of the mediator

Research on the merits of mediation

Factors in the effectiveness of mediation

Recent review of research

8. Comparative Dispute Resolution Process:

England and Wales

Introduction

History of mediation

Children Act 1989 Practice Direction

Value of mediation

Divorce Law Reform

Newcastle research-child focused mediation

Family Law Act 1996

Green Paper on legal aid reform

Legal aid for family mediation

Family Law Act 1996 and mediation

Access to Justice - the Woolf report

Conclusion

9. Comparative Dispute Resolution Process:

Australia and New Zealand

Australia

Jurisdiction

Aims and objectives of the Family Court

Mediation and the Access to Justice Report

Family Law Reform Act 1995

Counselling services of the Family Court

Court annexed mediation

Lawyer’s involvement in mediation

Mediation pilot project evaluation (1994)

Federally funded family mediation -

Melbourne evaluation (1995)

Federally funded family mediation -

Sydney evaluation (1996)

Domestic violence and mediation

Domestic violence policy of the Family court

Legal Aid for family cases

Legal aid conferencing in Queensland

Conclusion

New Zealand

Conciliation counselling

Counselling Co-ordinator

Mediation conference

10. Comparative Dispute Resolution Process:

Canada and the United States

Canada

Support services for families

Mediation in Canada

Ontario

Alberta

Montreal

Manitoba

British Columbia

Saskatchewan

Duties of lawyers to give information

Information on services

Canadian pre-trial conferences

Evaluation of Canadian mediation schemes

United States

Parent education programmes

Mandatory attendance

United States parenting plans

Children’s interests in mediation

11. Comparative Dispute Resolution Process:

Mainland China, Japan and Singapore

Mainland China

People’s Mediation Committee

Judicial mediation/conciliation

Enforcement of orders

Comments on Chinese family mediation

Japan

Mediation in Japan

Singapore

Singapore Family Court

Singapore parenting plans

12. Options for Reform of the Dispute Resolution Process

for Guardianship and Custody in Hong Kong

Introduction

Part A - The family dispute resolution process

Delay

Social welfare officer’s report

Independent experts

Statistics and research

Availability of judgments and privacy

Code of Practice for conduct of family cases

Case management and settlement

Flow Chart for new court process

Part B - Support services for the family dispute resolution

process

Court welfare service

Other support services

Information on dispute resolution

Information session

The court’s powers in relation to mediation

Counselling conference

Support Services Co-ordinator

Mediation

Social Welfare Officers and mediation

Working Party

Pilot project for court-annexed family mediation scheme

Community mediation

Child’s voice in the mediation process

Legal aid and mediation

Privilege and confidentiality

Legal advice

Enforcement of mediation agreements

Arrangements for children

Parenting plans

Part III - Child Abduction

13. Child Abduction Law

Part A - Hague Convention

The European Convention

Part B - Hong Kong law on abduction and removal

Criminal Law

Power to detain

Civil Law

Wardship

Part C - Comparative law

United Kingdom

Power to order disclosure of whereabouts

Scotland

Ireland

Irish Police Powers

Australia

Location order

Recovery order

Conclusion

14. Options for Reform of Child Abduction Law

Introduction

Criminal law reforms

Power to detain

Civil Law reforms

Removal of child from jurisdiction

Disclosure of whereabouts

Location and recovery orders

Surrender of passport

Notification of order to Immigration Department

15. Summary of Recommendations

Part A - General principles

Welfare principle

Best interests

Statutory checklist of factors

No-order principle

Part B - Parental responsibility and rights

Part C - Acquisition of parental responsibility by guardians

Part D - Types of orders for children

Change of surname

Part E - The voice of the child

Views of the child

Representation of the child

Part F - Reforms to relevant matrimonial ordinances

Separation and Maintenance Orders Ordinance (Cap 16)

Domestic Violence Ordinance (Cap 189)

Age

Director of Social Welfare’s powers

Enforcement of orders

Consolidation of ordinances

Policy co-ordination

Part G - The family dispute resolution process

Delay

Social welfare officer’s report

Independent experts

Statistics and research

Availability of judgments and privacy

Code of Practice for conduct of family cases

Case management and settlement

Flow Chart for new court process

Part H - Support services for the family dispute resolution

process

Support services

Information on dispute resolution

Information session

The court’s powers in relation to mediation

Counselling conference

Support Services Co-ordinator

Social Welfare Officers and mediation

Working Party

Pilot project for court-annexed family mediation scheme

Community mediation

Child’s voice in the mediation process

Legal aid and mediation

Privilege and confidentiality

Legal advice

Enforcement of mediation agreements

Arrangements for children

Parenting plans

Part I - Child Abduction Law

Power to detain

Removal of child from jurisdiction

Disclosure of whereabouts

Location and recovery orders

Surrender of passport

Notification of order to Immigration Department

Annex 1

Draft Sections for Proposed Children’s Bill

Annex 2

Proposed Case Management and Support Services

Flow Chart for Dispute Resolution Process

Introduction

Terms of reference

1. On 21 April 1995, under powers granted by the Governor-in-Council on the 15 January 1980, the Attorney General and the Chief Justice referred the topic of guardianship and custody to the Law Reform Commission in the following terms:

“to consider the law relating to guardianship and custody of children, and to recommend such changes as may be thought appropriate”.

2. This Consultation Paper is one of a number of references in the area of family law dealt with by the Commission. The Commission has already produced reports on illegitimacy¹ and the grounds for divorce and time limits for divorce.² Both those reports have been implemented in legislation by the Parent and Child Ordinance (Cap 429) and the Matrimonial Causes (Amendment) Ordinance (Cap 179) (Ord. No. 29 of 1995) respectively.

Scope of the reference

3. Hong Kong’s law on guardianship and custody is to be found in a number of ordinances. Principal among these is the Guardianship of Minors Ordinance (Cap 13). Private law aspects of guardianship and custody are also dealt with in the Matrimonial Causes Ordinance (Cap 179), the Matrimonial Proceedings and Property Ordinance (Cap 192) and the Separation and Maintenance Orders Ordinance (Cap 16).

4. One of the catalysts for review of the law relating to guardianship and custody was the enactment in 1989 of the Children Act in England, which incorporated major reforms. In particular, there was concern about the restriction in section 10 of the Guardianship of Minors Ordinance (Cap 13), which limited an application for custody or access to parents or the Director of Social Welfare. Thus, grandparents or other relatives actually looking after a child were unable to make application under this Ordinance and instead had to apply for wardship in the Court of First Instance of the High Court.

5. Guardianship can be defined as all the rights that a parent has towards his or her child. When a parent dies, another person may be appointed guardian by a will, known as a testamentary guardian. There is much confusion as to the meaning and scope of the term “custody”. It can be confined to the physical custody and day to day care and control of a child after a divorce, or in broader terms to mean something akin to guardianship, whereby the parent without care and control retains a right to be involved, to different degrees, in the upbringing of a child. Access to see his child has traditionally been seen as the main right given to a non-custodial parent. In rare situations this can result in the child spending so much residential time with both parents that it amounts to shared physical custody, an option increasingly popular in the United States.

Private law and public law

6. This reference is confined to the private law aspects of guardianship and custody. Public law will only be dealt with insofar as there is an overlap with the powers of the Director of Social Welfare to intervene in private law disputes. Child care law in the sense of public law is excluded. There are practical reasons for this limitation, as a review of the public law aspects would considerably delay the completion of this reference.

7. There are also policy and conceptual reasons for this choice. The powers of intervention by the state in the lives of a family differ markedly from when a child is the subject of child abuse and needs protection, to when a child is involved in a private law dispute between two parents. It can also confuse the issues, as only a minority of the children who are the subject of a private law dispute will also be the subject of care applications by the Director of Social Welfare under the Protection of Children and Juveniles Ordinance (Cap 213).

The sub-committee

8. In May 1996 the Law Reform Commission appointed a sub-committee chaired by the Hon Mrs Miriam Lau to consider the terms of reference and to make proposals to the Law Reform Commission for reform. In August 1998 the sub-committee completed their deliberations and now make their proposals on reform available to the public for consultation.

Membership and method of work

9. On 8 June 1996 the sub-committee commenced their consideration of a background paper prepared by the secretariat to assist them in their work. The sub-committee held a total of 34 meetings.

10. The membership of the sub-committee is

Hon Mrs Miriam Lau, JP Partner

Chairperson Alfred Lau & Co., Solicitors

H H Judge de Souza Judge

Deputy Chairman Family Court

Miss Rosa Choi Assistant Principal Legal Aid Counsel

Legal Aid Department

Ms Bebe Chu Partner

Stevenson, Wong & Co., Solicitors

Ms Robyn Hooworth Mediator

Mr Anthony Hung Partner

Lau, Kwong & Hung, Solicitors

Ms Jacqueline Leong, SC Barrister

Dr Athena Liu Lecturer

Faculty of Law

University of Hong Kong

Mr Thomas Mulvey, JP Director

Hong Kong Family Welfare Society

Mrs Cecilia Tong Regional Officer

Social Welfare Department

Ms June Wee Barrister

Miss Wong Lai-cheung Counsellor

Hong Kong Catholic Marriage Advisory

Council

Miss Paula Scully, Senior Government Counsel, acted as Secretary to the sub-committee.

Format of the Consultation Paper

11. This Consultation Paper examines the present state of the law of guardianship and custody in Hong Kong, and puts forward various options for reform. It is impossible to deal with substantive provisions of the law in isolation from the context in which those provisions are used in a dispute between parents, or between a parent and a third party, in relation to guardianship, custody or access. This paper will deal with the substantive provisions but also the methods of dispute resolution that are used, or capable of being used, for resolving such disputes.

12. Part I of the Paper deals with the substantive law in practice in Hong Kong and overseas. Chapter 1 deals with the legal and social background to the law, including the impact of the United Nations Convention on the Rights of the Child. Chapter 2 focuses on the substantive provisions of the various ordinances dealing with guardianship and custody and problems with them. It includes the Family Court’s way of handling these disputes, and the current situation on mediation in Hong Kong.

13. Chapters 3, 4, and 5 of the Consultation Paper deal with comparative developments from the perspective of the substantive provisions of the law. Chapter 3 focuses on the English provisions of the Children Act 1989. Chapter 4 deals with Scotland. Chapter 5 looks at substantive provisions and developments in Australia and New Zealand. Chapter 6 identifies options for reform in Hong Kong of the substantive provisions of guardianship and custody.

14. Part II of the Consultation Paper deals with non-adversarial dispute resolution for guardianship and custody disputes. Chapter 7 focuses on comparative non-adversarial dispute resolution processes, particularly mediation which is now becoming the preferred method of dispute resolution for disputes involving children. Chapter 8 looks at recent English developments in how divorce and ancillary matters such as custody are dealt with. Chapter 9 deals with family dispute resolution in Australia and New Zealand. Chapter 10 focuses on the dispute resolution process in Canada and the United States. Chapter 11 deals with the legal systems of Mainland China, Japan and Singapore. Chapter 12 sets out options for reforms in the dispute resolution methods of resolving guardianship and custody disputes.

15. Part III, in chapter 13, deals with the Hague Convention on the Civil Aspects of Child Abduction, and the domestic civil and criminal law on child abduction. Chapter 14 summarises the options for reform in child abduction law. Chapter 15 summarises the conclusions and recommendations for reform of the law in Hong Kong. Annex 1 sets out relevant sections from the English Children Act 1989, the Children (Scotland) Act 1995 and the Australian Family Law Reform Act 1995 that the sub-committee used as a basis for some options for draft legislation for Hong Kong. Annex 2 is a Flow Chart dealing with proposed court processes including case management and support services for the handling of disputes concerning children at the Family Court.

16. This Consultation Paper contains the preliminary recommendations of the sub-committee. The purpose of circulating the Consultation Paper is to invite members of the public, agencies and organisations from the non-governmental sector and the relevant government bureaux and departments and other interested parties to express their views on the recommendations. The sub-committee will take these views into account in finalising their recommendations, which will then be presented in a final report to the Law Reform Commission.

Part I - Substantive Law and Practice

Chapter 1

Background to the Present Law

Introduction

1.1 Part I of the Consultation Paper deals with the substantive law on guardianship and custody in Hong Kong and overseas. This chapter attempts to put the law on guardianship and custody in its social context. As so few guardianship disputes come before the courts, the focus will be on custody and access disputes arising from a divorce. A divorce must be seen both as a legal process and a psychological process that impacts on the child as well as the parents. This chapter will also look at the responsibility of the state to intervene and provide a choice of ways of handling disputes which are least detrimental to children and adults. It is also necessary to look at the broader framework of children’s rights and parental rights, within the context of international obligations under the United Nations Convention on the Rights of the Child or local obligations to comply with the Bill of Rights Ordinance (Cap 383).

Role of the State

1.2 Traditionally, the judicial system has acted as the guardian of public and private interests when marriage breaks down. The welfare of children has been defined as the cross-roads at which those interests intersect.³ Clulow and Vincent query whether the best interests of children are promoted by arrangements agreed by the parents, or by arrangements suggested by others, such as divorce court welfare officers.

1.3 This raises an issue of crucial importance about the boundaries between public and private responsibilities, and the effect of their interplay upon each other. When there is a dispute between parents about the custody of a child, the court has to look beyond the adjudication of parental rights in order to protect the child as a member of the community.⁴ However “no matter how well intentioned, wholesale intervention into the life of families is not likely to serve the interests of children”.⁵ An adequate legal framework for custody disputes must be permeated by an acceptance of the core values of the welfare of the child as a member of the family unit and the community.

1.4 Goldstein, Freud and Solnit⁶ argued that parents should be presumed to have the capacity and responsibility to decide what is in the best interests of the children and the family. Parents should have the first opportunity to meet the needs of their children and maintain family ties without state intervention. Folberg⁷ argued that the state doctrine of parens patriae provides for a responsibility for the welfare of the children only when parents cannot agree or cannot adequately provide for them.

1.5 “Divorce has been constructed as a prominent social issue, a symptom of conflicts which have activated, and been activated by a shifting personal, social, and economic landscape.... Justifications for State involvement in the private sphere of family life are usually expressed in terms of the need to protect children from harmful influence and experience.... It is proper for the State to ensure that the interests of children exposed to its [divorce] effects are adequately safeguarded. However, when the State intervenes in family life it effectively undermines the authority of parents and encourages an abdication of their responsibilities.... It is analogous with the iatrogenic effects induced by some forms of medical treatment.... The public argument for overriding parental responsibility is justified in terms of the interests of the community as defined by the knowledge and beliefs of the day”.⁸

1.6 It can be seen that there is much controversy about the degree to which the state should intervene in the lives of children and the family. There is a constant tension between the extent of the substantive powers the state should have to intervene in the family and how it exercises its discretion in implementing those powers.

Bill of Rights Ordinance (Cap 383)

1.7 The Bill of Rights Ordinance (Cap 383) lays down some parameters for the exercise of the powers of the state which intrude into the lives of family members. Article 14 of the Bill of Rights Ordinance (Cap 383)⁹ provides that “no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence [and] ... everyone has the right to the protection of the law against such interference or attacks.” Article 19 (equivalent to article 23 of the International Covenant on Civil and Political Rights (ICCPR)) acknowledges that the family is the natural and fundamental group unit of society and thus entitled to protection by society and the state. It also states that in the case of dissolution, provision shall be made for the necessary protection of children. It recognises that spouses have equal rights and responsibilities as to marriage and dissolution.

1.8 Article 20 (article 24 of the ICCPR) ensures that “every child shall have the right to such measures of protection as are required by his status as a minor, on the part of its family, society and the State”. These provisions must be taken into account when we proceed to analyse the various ordinances, so as to ensure that any proposals for reform are compatible with the letter and the spirit of the Bill of Rights Ordinance (Cap 383).

United Nations Convention on the Rights of the Child

1.9 The UN General Assembly adopted the Declaration of the Rights of the Child in 1959. In 1989 the Convention on the Rights of the Child was adopted by the UN. The People’s Republic of China ratified the convention that year, and the United Kingdom in 1991. It was extended to Hong Kong in late 1994. Approximately 166 countries have ratified the convention. Article 1 of the Convention defines a child as a “human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier”.

1.10 Article 41 provides that nothing in the Convention is to affect provisions in a State’s laws which are more conducive to the realisation of the rights of the child than the provisions of the Convention. Article 9 gives a right not to be separated from parents except in certain limited circumstances, for example “where the parents are living separately and a decision must be made as to the child’s place of residence.” Article 9(3) provides that “State parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests”.¹⁰

1.11 The Convention refers to one of the provisions of the Declaration of the Rights of the Child which provides that the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection. Article 3(1) of the Convention provides “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. Article 18(1) obliges State Parties to use their best efforts to ensure recognition of the role of parents in protecting the interests of children and that both parents have common responsibilities for the upbringing and development of the child. This also applies to legal guardians.¹¹

1.12 Article 12 recognises that a child does have views which should be given weight in accordance with his age and maturity. Article 12(2) provides:

“for this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law”.

1.13 The Administration of the Hong Kong Special Administrative Region are under a moral obligation, as far as practicable, to ensure that the substantive legislative provisions, and the way disputes on guardianship and custody are resolved, comply with the United Nations Convention on the Rights of the Child. However, unless any of its provisions are incorporated into domestic legislation, it is not possible to apply to court to force a government to comply with its international obligations.

Parental rights

1.14 The focus in legislation and the common law has been on parental rights rather than on parental responsibilities. In Cretney’s¹² view, parents have the following rights:

1. the right to physical possession of a child,

2. the right to control his education,

3. the right to discipline the child,

4. the right to choose the child’s religion,

5. the right at common law to the services of the child,

6. the right to represent the child in legal proceedings,

7. the right to consent to medical treatment,

8. the right to consent to marriage, and

9. the right to consent to an application for a passport.

1.15 Additional rights include administering the child’s property, agreeing to adoption, arranging for a child to leave or emigrate from the jurisdiction, choosing a surname, and appointing a testamentary guardian for the child.¹³ However, a paradigm shift in thinking has occurred and continues to occur from this focus on rights to a focus on parental responsibilities.¹⁴ This is reflected in the English Children Act 1989, the Children (Scotland) Act 1995, the Australian Family Law Reform Act 1995 and the United Nations Convention on the Rights of the Child.

Children’s rights

1.16 Allied with this paradigm shift has been a focus on children’s rights independent of the rights or responsibilities of parents. Henaghan suggested that in analysing children’s rights there are three concepts that must be balanced: “the child’s autonomy to express views and make decisions; the family’s responsibility to nurture and bring up children; and the state’s responsibility to provide services which protect and enhance the lives of children”.¹⁵ A number of questions arise from these principles for which there are no easy answers:

• How old should a child be before he makes decisions or has his wishes taken into account?

• What weight should be given to the wishes or decisions of children?

• What is the basis for imposing responsibility on members of a family?

• Where does family responsibility end and state responsibility begin?¹⁶

1.17 A further issue which Hong Kong law has not addressed is whether its concentration on the two parent nuclear family reflects the cultural reality of the importance in children’s lives of grandparents and other relatives, in particular where the child is physically residing with this extended family.

Divorce as a complex process

1.18 Lawyers tend to see divorce as a legal process whereby a couple dissolve their marriage contract and then become free to remarry.¹⁷ Therapists see divorce as more of a psychological process. A more recent perspective is to see divorce from an ecological perspective. This views divorce :

“as a process composed of the interaction of a variety of elements, including statutes and psychological states, but also patterns of interpersonal relating ... child development and the risks to its normal progression, demographic factors (such as ethnicity and income), relations among peers, and community resources (such as the involvement of professionals and agencies)”.¹⁸

Stages of divorce

1.19 Researchers categorise the process of divorce in different terms. Bohannan¹⁹ suggested there are six categories: emotional, legal, economic, co-parental, community and psychic. Wiseman²⁰ referred to five psychological stages - denial, loss, anger, reorientation and acceptance. It is important to put the resolution of custody cases in this broader context. If parents are going through these various psychological stages, and at different times, then what impact has this on the parenting of children during separation and divorce? Are parents really in a fit state to decide to make final decisions about custody of children if they are locked in denial, loss or anger? Is a parent who insists on litigation over the children prompted by anger rather than reason?

1.20 Where counselling is available, it may enable a parent to recognise that emotion is clouding his judgment. A counsellor may, for instance, suggest that a client work through his anger before making a decision committing himself to a contested hearing. Unfortunately, the court has no power to refer parties to counselling. The function of the social welfare officer is to investigate the family and assess the parenting of the children, which is separate from that of counselling the parties to “uncouple” the spousal relationship.

1.21 The ecological perspective entails a recognition that divorce is a process that unfolds over time, and that the parties may be at different stages in the process. The particular stage of the legal process is not necessarily reflected in the concurrent psychological stage of the spouses, and more importantly, the children. Indeed, each parent may be at different stages in the psychological process with, for example, one parent denying there is a problem and refusing to accept the need for a divorce, and the other parent hostile. It is submitted that the best way to look at divorce is through a holistic model which embraces both the legal and psychological processes and the ecological perspective mentioned above.

Impact of divorce on children

1.22 The research literature has found that the majority of spouses involved in difficult divorces temporarily become less adequate and can abandon their parental role.²¹

“There is general agreement that marital hostility is a disturbing force that can affect children’s emotional well-being and alter parent-child relationships. Many would argue that where serious discord exists, separation or divorce is not in the best interests of all family members. Marital dissolution is not without its own consequences.²² Children often react to divorce with feelings of anger, terror or guilt. They grieve for the lost parent and fear further losses and catastrophies.²³ Helping children cope with dramatic changes in the family is an important task for the custodial parent. To this responsibility is added personal adjustment, shifts in family roles and household routines, and an overload in terms of economic burden.”²⁴

1.23 There are social and financial consequences to divorce. An additional pressure for a parent who may not be coping in the short term with a divorce is the pressure of handling children on whom the psychological effect is even greater. The majority of children show clear indications of distress and disruption.²⁵ They are more likely to experience external problems such as aggression or disobedience. They also experience internal feelings of fear, blame, lower self esteem, depression and insecurity.²⁶

1.24 Conflict arising out of divorce can affect children’s functioning at school.²⁷ They may be more likely to use psychiatric and other mental health services,²⁸ though this may not be applicable to Hong Kong where there is still possibly greater resistance to going outside the family for therapeutic support in a time of crisis. Researchers conclude that the consequences for children of divorce are more likely to be influenced by their gender, age, parent-child relationship and social class, than by the fact that the parents have divorced per se.²⁹ Pre-adolescent boys show more distress than girls³⁰ while adolescent girls are more affected than boys.

1.25 Younger children are more vulnerable to negative consequences than older children. This may be because younger children are more likely than older children to blame their own behaviour for their parent’s divorce.³¹

1.26 Benjamin and Irving suggested³² from their analysis of the research literature that a child’s adjustment to divorce is dependent on a number of interacting processes:

(a) the reciprocal adjustment of the custodial parent and the child living with her or him;

(b) the quality of the relationship between the custodial parent and the child;

(c) gender congruence between the custodial parent and the child; and

(d) the degree of involvement of the non-custodial parent.

1.27 Their disturbing conclusion is that “under the intense stress of the divorcing process, a substantial proportion of previously adequate parents become increasingly insensitive to the children’s needs³³ or completely abandon their parenting responsibilities³⁴ with devastating consequences for child adjustment”.³⁵

1.28 The older research literature supported the belief that the more bitter and prolonged the conflict was between the parents, the more damage there was done to child adjustment.³⁶ Kelly suggested that conflict does not produce a consistent outcome in children. Difficulties with adjustment are more likely where children feel caught in the middle of the conflict as distinct from those who are not so involved.³⁷ Hodges found that high parental conflict can undermine or disrupt the relationship between the non-custodial parent and the children.³⁸ Conversely, a friendly parental relationship positively influences child adjustment and self esteem.³⁹ The research also emphasises the importance of children having other attachment figures in their lives such as grandparents who may take the place of an absent parent. This helps children to adjust.⁴⁰

Effect of access on child’s adjustment to divorce

1.29 Isaac et al⁴¹ compared the adjustment over a period of three years of children of non-clinical and clinical families. They found that the way in which the first 12 months was handled was critical, as it affected the rate of child adjustment when measured at the end of the third year after divorce. As regards access, they found that having consistent, scheduled visits was more salient than frequency of access. Other data revealed that “scheduled visiting by non-custodial fathers was the single best predictor of child social competence by the end of year 3”.⁴² However, most children, like adults, after two or three years will adjust successfully. For a minority of children the short term consequences of the divorce can leave them vulnerable to long term harm.⁴³

1.30 In apparently conflicting findings, some research showed that in North America about half of all children who are in the custody of their mothers seldom or never see their father,⁴⁴ while more recent research showed that 65% of fathers visited their children at least every other week.⁴⁵ It appears that access frequency is inversely related to child age and the time that has elapsed since separation.⁴⁶

1.31 In the past, access was seen as a consolation prize for not being granted custody. Some authors have challenged the assumption that access is in the best interests of children if there is a high level of hostility between the parents. Goldstein et al⁴⁷ questioned the wisdom of granting access except on a very limited basis. The decision would be left to the custodian who would end access if it appeared to threaten the custodian’s relationship with the child.

1.32 However, more recent research has stressed the importance of access for children. Most of this research “suggests that child adjustment is directly related to visitation frequency; more frequent contact is associated with improved child adjustment”.⁴⁸ Some studies say that the correlation between access by a father and the child’s adjustment is more marked when the visits have the mother’s support and approval.⁴⁹ However, some studies report no relationship between the child’s adjustment and the father’s visiting.⁵⁰ It is accepted that the quality of the access will be influenced by the quality of their pre-divorce relationship. So, if that relationship was good, the child will suffer more distress at the loss of the father than otherwise. The divorce process may also produce an increased interest in parenting by fathers who were not so involved before.⁵¹

Long term harm caused by divorce

1.33 Between 26-40% boys and 15-25% of girls of divorced parents were found by Wallerstein and Blakeslee to have developed a history of delinquent behaviour.⁵² Also, children of divorced parents were less internally well-adjusted than those who did not have that experience. Their intellectual and academic functioning could be less.⁵³ Benjamin and Irving agreed with other researchers that “a substantial minority of children suffer long term harm as a direct consequence of their parents’ divorce”.⁵⁴

1.34 Wallerstein and Blakeslee found that younger children are more acutely affected by the divorce at the time. They did better in terms of long term adjustment than the older children, who were more likely to have taken a position on one parent’s side.⁵⁵ They noted that anger and hostility towards the former spouse by the custodial parent could result in the custodial spouse seeking to damage the relationship between the non-custodial spouse, normally the father, and the children, particular boys.⁵⁶ Once that relationship deteriorated then it was more likely that child support for college education would be refused. They also found that children had some difficulty adjusting to a custodial parent marrying again. This could result in conflict with the step-father, who was seen as a threat to the relationship between the children and the biological father.

1.35 Rutter’s⁵⁷ findings suggested that it was not the disruption of the bond with a parent that was of greatest significance but the distortion of family relationships. The fear of separation in the intact home was replaced by an experience of actual separation from one or other parent which could result in long term insecurity in relationships.⁵⁸ A review of the effects of separation and divorce on child development by Richards and Dyson⁵⁹ estimated that between 20-50% of children of divorced parents showed degrees of upset which required outside help at some time.⁶⁰

1.36 Garber commented on the failure of many non-custodial parents to sustain their involvement as parents in the face of their children’s anger and disappointment.⁶¹ Clulow and Vincent posited that there are three main factors mitigating the effect of divorce on children: a continuing relationship with both parents, the quality of parenting from the residential parent, and the quality of what is created to take the place of the past marriage.

1.37 There is some evidence that men find it more difficult than women to come to terms with divorce.⁶² Ambrose found that many were still angry, even years after the divorce, even if they had custody of the children.

Conclusions from research

1.38 These conclusions from the research need to be addressed by those professionally involved in the divorce process - that is, lawyers, judges, mediators or counsellors. It is clear that boys and girls have different needs and their adjustment is also age related. So, Wallerstein and Blakeslee suggest that males have a critical need for paternal involvement, once when aged 6 to 9 and again in late adolescence. “In contrast, females need such involvement in early adolescence and in addition have a greater need than males for family structure”.⁶³ Older children’s concerns also need to be addressed. An important point is that it is not the divorce per se that causes the problem for children but the post-divorce conflict.⁶⁴

1.39 Benjamin and Irving suggest that it is useful to regard families as moving through a function/dysfunction continuum in the divorce process. This perspective is useful as family lawyers can be frustrated by the fact that their clients in a divorce case do not behave rationally at times.⁶⁵

Joint custody

1.40 In England, Scotland and Australia there has been a shift towards parental responsibilities being shared after divorce and the avoidance of orders which appear to award custody to one parent and only access to the other parent. This shift has occurred to a certain extent in some parts of the United States, though the language of custody, albeit joint custody, is still being used.

1.41 There has been considerable academic debate as to whether joint custody orders are more in the interests of children than orders of sole custody with access to the non-custodial parent. The term “joint custody” has been interpreted to mean either joint physical custody (where the children stay half the time with each parent) or that the decisions on the upbringing of the child will be made jointly by both parents.

1.42 Joint physical custody is more likely to be successful where both parents have a reasonable relationship and do not have dysfunctional patterns of behaviour. If both parents are positively motivated then it can work. Joint custody should not be forced on parents, as it is only practicable where, for instance, there is adequate housing for the children at both parental homes and reasonable proximity between those homes.

1.43 The issue should be how to encourage both parents to be involved with their children, both before and after divorce. Any change of the law needs to ensure sufficient flexibility to enable the law to reflect changing demographic trends in families. Those changes include smaller families, more mobility, more common law relationships, and an increase in shared parenting.

1.44 Ironically, as more families divorce, the single parent, usually the mother, who has been allocated custody because of more physical time with the children, has to rely more on relatives or child care workers as more women return to work. Thus, the old preference for women to have custody as they were likely to stay at home, has changed to a situation in Hong Kong where both parents are likely to be working long hours. The child is looked after by a domestic helper who is not necessarily specially trained in child care, or a grandparent or other relative. This reduces the argument in favour of maternal custody, though the law and the decisions of the courts are not necessarily reflecting those demographic changes. We will next look at the current law and practice in Hong Kong in chapter 2.

Chapter 2

Current Law and Practice in Hong Kong