Hong Kong Law Reform Commission

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Preface

1. Recommendations made by the Law Reform Commission of Hong Kong have brought about key changes to our laws affecting the family. The Commission’s 1991 report on illegitimacy,[1] which proposed reforms to regularise the status of children, was implemented in 1993 in the Parent and Child Ordinance (Cap 429).[2] Two years later, the Commission’s proposals for a new divorce regime[3] resulted in major changes to the Matrimonial Causes Ordinance (Cap 179).[4] One area which has remained largely untouched however, despite major developments overseas, is Hong Kong’s law on the guardianship and custody of children, which dates back to the late 1970s.

2. “Guardianship” refers to the legal status under which a person exercises parental rights and authority towards a child. When a parent dies, another person, known as a testamentary guardian, may be appointed by will to be a guardian for the child in place of the parent. A guardian may also be appointed by the court. The term “custody” usually refers to the physical custody and day to day care and control of a child after a divorce. In practice, this is usually granted to only one of the divorcing parents, while the other is granted “access” to see the child on a regular basis.

3. Traditionally, the non-custodial parent is perceived to have much less involvement with the child and much less “say” over the child’s future than the custodial parent. The issue of “who gets custody of the children” is therefore one of the most fraught aspects of family proceedings. An added complication is that only parents or the Director of Social Welfare can currently apply for custody or access of a child. This means that grandparents or other relatives who may actually take care of the child are excluded from applying for custody or access and must resort to other less direct legal proceedings instead, such as having the child made a ward of the court.

4. In recent years, Hong Kong, like many other jurisdictions, has seen a dramatic rise in its rate of family breakdown and divorce.[5] The serious impact that the legal process itself is recognised to have on families facing these situations, particularly where arrangements for the children must be made, has led jurisdictions like the United Kingdom and Australia to comprehensively recast their laws in this area.[6] Other jurisdictions also are now considering what reforms may be necessary.[7]

5. The topic of guardianship and custody of children was referred to the Law Reform Commission by the Attorney General and the Chief Justice in April 1995 in the following broad terms:

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

6. In May 1996, the 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. The members of the sub-committee are:

Hon Ms Miriam Lau, JP Chairperson	Sole Practitioner Miriam Lau & Co

H H Judge de Souza Deputy Chairman	Judge District Court

Miss Rosa Choi	Assistant Principal Legal Aid Counsel Legal Aid Department

Ms Bebe Chu	Partner Stevenson, Wong & Co, Solicitors

Ms Robyn Hooworth (up to 28 August 2001)	Mediator

Mr Anthony Hung	Partner Lau, Kwong & Hung, Solicitors

Ms Jacqueline Leong, SC	Barrister

Dr Athena Liu	Associate Professor Faculty of Law University of Hong Kong

Mr Thomas Mulvey, JP	Director Hong Kong Family Welfare Society

Mrs Cecilia Tong	Regional Officer (Retired) Social Welfare Department

Ms June Wee	Barrister

Miss Wong Lai-cheung	Counsellor

7. The first secretary to the sub-committee was Ms Paula Scully, who was appointed Chairperson of the Guardianship Board of Hong Kong in February 1999. Ms Scully was succeeded as sub-committee secretary by Ms Michelle Ainsworth, who was appointed Deputy Secretary of the Commission in April 2000.

8. In the course of its detailed examination of the law of guardianship and custody, the sub-committee identified a number of key topics for review. These included the guardianship of children on the death of a parent, the approach of the law and the courts to custody and access arrangements for children, the use of dispute resolution procedures in family cases and parental child abduction.

9. The sub-committee published an extensive consultation paper on Guardianship and Custody in December 1998 addressing these topics and setting out a wide range of proposals for reform. Fifty-one submissions were received during the three-month consultation exercise. Those who responded included members of the legal profession, social workers, welfare organisations, youth groups, women’s groups, counsellors, mediators, educational institutions, government departments and private individuals. The list of respondents is at Annex 1. We are grateful to all those who commented on the consultation paper.

10. This report covers the guardianship aspect of the reference and considers the legal arrangements made for children in the event of the death of one or both parents. Chapter 1 looks at the existing law on guardianship in the Hong Kong SAR. Chapter 2 highlights a number of the problems in this area. Chapter 3 considers how the law deals with the guardianship of children in other jurisdictions. Our final conclusions and recommendations for reform are set out in Chapter 4, and these are summarised in Chapter 5.

[1] HKLRC, Illegitimacy, Topic 28, December 1991.

[2] Ordinance No 17 of 1993.

[3] HKLRC, Grounds for Divorce and Time Restrictions on Petitions for Divorce Within Three Years of Marriage, Topic 29, November 1992.

[4] Ie, the Matrimonial Causes (Amendment) Ordinance (Ord No 29 of 1995).

[5] In 1972, 354 divorce decrees absolute were granted in Hong Kong. By 1980, the figure had risen to 2,087. In 1990, 5,551 decrees absolute were granted, and in 2000, the figure had soared to 13,058. (Figures supplied by the Judiciary of the HKSAR.)

[6] In England, the Children Act 1989; in Scotland, the Children (Scotland) Act 1995; and in Australia, the Family Law Reform Act 1995. (Though see also recent follow-up study on the Australian reforms by University of Sydney and Family Court of Australia, The Family Law Reform Act 1995: The First Three Years (Jan 2001).)

[7] Ie, (New Zealand) NZ Ministry of Justice consultation paper, Responsibilities for Children – Especially When Parents Part: The Laws About Guardianship, Custody and Access, 15 August 2000; (Canada) Canadian Parliamentary Special Joint Committee on Child Custody and Access, For the Sake of the Children (Dec, 1998), The Government of Canada's Response to the Report (May 1999), Dept of Justice Canada, Federal Provincial Territorial Consultations on Custody, Access and Child Support in Canada (March 2001).