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 the children must be made, has led jurisdictions like the United Kingdom, Australia and New Zealand to comprehensively recast their laws in this area.[6]  Other jurisdictions are also 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 Ms 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:

 

 

5.             Ms Paula Scully was the secretary to the sub-committee until February 1999, when Ms Michelle Ainsworth, Deputy Secretary of the Commission, took over that role.

 

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, the use of dispute resolution procedures in family cases, parental child abduction and guardianship of children on the death of a parent.

 

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, the Commission published its report on Guardianship of Children, the first in a series of four reports under this reference.  A second report, on International Parental Child Abduction, was published in April 2002.  The Commission's third report in the series, on The Family Dispute Resolution Process, was published in March 2003.  This fourth and final report covers the child custody and access aspects of the reference.

 

9.             Chapter 1 of this report considers child custody law in its wider social and legal contexts.  Hong Kong's existing law and procedure on custody and access is examined in Chapters 2 to 4.  Chapters 5 to 8 look at newer legislative models for child custody and access that have been adopted in other jurisdictions.

 

10.           Our conclusions and recommendations for reform in this area are set out in Chapters 9 to 14 of this report.