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

3. 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.”

4. 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

5. 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.

6. In the course of its detailed consideration of the law and practice in this area, the sub-committee identified a number of key topics for review. These included the approach of the law and the courts to custody and access arrangements for children, guardianship arrangements for children on the death of one or both parents, international parental child abduction and the use of alternative dispute resolution processes in family cases.

7. 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.

8. In January 2002, we published our report on Guardianship of Children, the first in our series of four reports under this reference. This report, the second in the series, covers the international parental child abduction aspect of the reference.[8]

9. Chapter 1 of this report looks at the serious and harrowing problem of parental child abduction, in both its social and international contexts. Chapters 2 to 4 of the report examine how child abduction cases are currently dealt with in Hong Kong, under both our local criminal and civil law and under our international convention obligations. Relevant legislative provisions in other jurisdictions are considered in Chapter 5. Chapters 6 to 8 set out the sub-committee's conclusions and recommendations for reform.

[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 a 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, (Aug 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 (Mar 2001).

[8] In due course we will be publishing two further reports under this reference, one on custody and access and the other on mediation.