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Hong Kong Law Reform Commission |
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"All too often, [we] are confronted with reports of marriage or de facto relationship breakdowns that involve bitter and sometimes tragic disputes over the children. … The children can become pawns in a power struggle between their parents or can be used as vehicles for one or both parents to express unresolved and ongoing dissatisfaction with the breakdown of the domestic relationship."[1]
"Some separating couples … find themselves unable to distinguish between their personal bitterness about the breakdown of the relationship and the necessity of focusing on the future well being and contentment of their children."[2]
1.1 Unlike other areas of the law, the law of divorce involves not only a legal process, but also a social and psychological one. The impact of the choices made by divorcing parents, and the decisions handed down by the family courts, continue to be felt in the lives of the parties concerned for years after the event. Substantial research confirms that children in particular are negatively affected by undergoing the experience of their parents' divorce.[3] As the Australian Family Law Council comments, "the children … are often caught in a dilemma for which they bear no responsibility, but which causes them great personal anguish."[4]
1.2
1.3 In
other common law jurisdictions, there has been a shift away from this legal
emphasis on the rights and authority of each of the parents over their
children, towards a more child-focused concept of "joint parental responsibility." This newer approach, which emphasises
the obligations rather than the rights of the parents, and stresses the rights
of the children to maintain a continuing relationship with both parents after
divorce, is examined in this report as a possible model for
1.4 In this chapter, we consider first the wider social context of divorce and examine the emotional process which usually takes place for the parties concerned. We then introduce in more detail the changing legal paradigm of the joint parental responsibility model. The role of the state in the divorce process is addressed later in this chapter, including the state's responsibility to intervene by providing ways of handling matrimonial disputes which are the least detrimental to parties concerned. We also discuss the broader legal framework of children's and parents' rights under the United Nations Convention on the Rights of the Child and the Hong Kong Bill of Rights Ordinance (Cap 383).
1.5 Lawyers
tend to see divorce as a legal process under which a couple dissolve their
marriage contract and become free to remarry. Therapists, on the other hand, tend to
see divorce as a psychological process.
There is also now the ecological perspective on divorce, where it is
viewed 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)."[7]
1.6 Researchers categorise the process of divorce in different terms. Bohannan[8] suggested there are six categories: emotional, legal, economic, co-parental, community and psychic. Wiseman[9] refers to five psychological stages: denial, loss, anger, reorientation and acceptance. It is important to put the resolution of custody cases in this broader context.
1.7 An ecological perspective involves viewing the divorce as a process that unfolds over time, and recognising that at different times the parties may be at different stages in the process. For example, one parent may be at the stage of denying there is a problem and refusing to accept the need for a divorce, while the other parent feels hostile. It is also important to appreciate that the particular stage of the legal process is not necessarily reflected in the concurrent psychological state of the spouses involved, and, more importantly, their children. It is therefore preferable to look at divorce through a holistic model which embraces both the legal and psychological processes and the ecological perspective mentioned above.
1.8 There are social and financial consequences to divorce. Researchers have found that the majority of spouses involved in difficult divorces temporarily become less adequate and can even abandon their parental role.[10] Parents who may not be coping in the short term with a divorce have the added pressure of handling children on whom the psychological effect is even greater.
"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.[11] Children often react to divorce with feelings of anger, terror or guilt. They grieve for the lost parent and fear further losses and catastrophies.[12] 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."[13]
1.9 The majority of children show clear indications of distress and disruption during and after their parents' divorce.[14] They are more likely to experience external problems such as aggression or disobedience. They also experience internal feelings of fear, blame, lowered self esteem, depression and insecurity.[15] Pre-adolescent boys show more distress than girls[16] while adolescent girls are more affected than boys. 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 parents' divorce.)[17]
1.10 Researchers conclude that the consequences of divorce for children are likely to vary according to the parent-child relationship and the children's gender, age and social class.[18] The interacting processes that may determine a child's adjustment to divorce are summarised by Benjamin and Irving[19] as:
(a) the reciprocal adjustment of the custodial parent and the child living with 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.
1.11 The older research supported the belief that the more bitter and prolonged the conflict between the parents, the more damage was done to the child's adjustment.[20] Kelly suggests that conflict may not produce a consistent outcome in children, however. 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.[21] Hodges has found that high parental conflict can undermine or disrupt the relationship between the non-custodial parent and the children.[22] Conversely, a friendly parental relationship positively influences child adjustment and self esteem.[23] 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.[24]
1.12 Isaacs and others[25] have found that the way in which the first 12 months of separation and divorce are handled is critical, as in their studies, it affected the rate of child adjustment when measured at the end of the third year after divorce. With regard to access, they have found that having consistent, scheduled visits was more helpful to children's adjustment than frequency of access. Other data reveals that, "scheduled visiting by non-custodial fathers was the single best predictor of child social competence by the end of year 3."[26] Most children, like adults, will adjust successfully after two or three years. For a minority of children, however, the short-term consequences of a divorce can leave them vulnerable to long-term harm.[27]
1.13 In apparently conflicting findings, some North American research showed that about half of all children who are in the custody of their mothers seldom or never see their father,[28] while more recent research has shown that 65% of fathers visited their children at least every other week.[29] It appears that access frequency is inversely related to the child's age and the time that has elapsed since separation.[30]
1.14 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 al[31] have questioned the wisdom of granting access in these cases except on a very limited basis.
1.15 More recent research has stressed the importance of access for children, however. Most of this research "suggests that child adjustment is directly related to visitation frequency; more frequent contact is associated with improved child adjustment."[32] 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.[33] Some studies report no relationship between the child's adjustment and the father's visiting.[34] It is accepted that the quality of the access will be influenced by the quality of the parent and child pre-divorce relationship. 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.[35]
1.16 Some research studies have indicated that children of divorced parents are less internally well-adjusted than those who have not had that experience[36] and their intellectual and academic functioning can be reduced.[37] Benjamin and Irving agree with other researchers that "a substantial minority of children suffer long term harm as a direct consequence of their parents' divorce."[38] Wallerstein and Blakeslee note that younger children appear to be more acutely affected by the divorce at the time that it is occurring, while they do better in long term adjustment than older children, who are more likely to have taken a position on one parent's side.[39]
1.17 Some researchers note that anger and hostility felt by the custodial parent towards the former spouse could result in the custodial parent seeking to damage the relationship between the non-custodial spouse, normally the father, and the children, particularly boys.[40] Once that relationship has deteriorated, it is more likely that child support for college education would be refused. Garber comments on the failure of many non-custodial parents to sustain their involvement as parents in the face of their children's anger and disappointment.[41]
1.18 Researchers have also found that children have difficulty adjusting to a custodial parent marrying again. This could, for example, result in conflict with the step-father, who is seen as a threat to the relationship between the children and the biological father.
1.19 Rutter's[42] findings suggest that it is not the disruption of the bond with a parent that is of greatest significance, but the distortion of family relationships. The fear of separation in the intact home is replaced by an experience of actual separation from one or other parent, which might result in long-term insecurity in relationships.[43] A review of the effects of separation and divorce on child development by Richards and Dyson estimates that between 20 to 50 per cent of children of divorced parents showed degrees of upset which would require some degree of outside help.[44]
1.20 Clulow and Vincent have observed that there are three main factors mitigating the effect of divorce on children:
(a) a continuing relationship with both parents
(b) the quality of parenting from the residential parent, and
(c) the quality of what is created to take the place of the marriage that has ended.
1.21 It appears that certain key indicators from the research need to be kept in view by those professionally involved in the divorce process, including lawyers, judges, mediators or counsellors. It is clear that boys and girls have different needs and their adjustment is also age-related.[45] 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.[46] Benjamin and Irving suggest that it is useful to regard families as moving through a function/dysfunction continuum in the divorce process.[47]
1.22 As
we noted earlier in this chapter, a paradigm shift in thinking has occurred
overseas in recent years, away from a focus in custody law on parental rights
and authority, towards a focus instead on parental responsibilities and the
rights of the child. This is
reflected in legislation such as the English Children Act 1989, the Children (
1.23 Henaghan suggests 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."[48] 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?[49]
1.24 The issue of how to encourage both parents to be involved with their children, both before and after divorce, is an important one. Any change to the law needs to ensure sufficient flexibility to enable the law to reflect changing demographic trends in families. These demographic changes include smaller families, more mobility, more common law relationships, and an increase in shared parenting.
1.25 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 and more on relatives or child care workers to look after the children, as she often has to return to work. Therefore, the old preference for women to have custody, as they were likely to stay at home and look after the children, has changed to a situation where both parents in Hong Kong are likely to be working long hours and the child is looked after by a domestic helper, 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.[50]
1.26 A
further issue that 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 within this extended family.
1.27 As
we noted earlier, in
1.28 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.
1.29 It appears that joint physical custody is more likely to be successful where both parents are positively motivated, have a reasonable relationship and do not have dysfunctional patterns of behaviour towards each other. Also, joint custody may only be practicable where, for instance, there is adequate housing for the children at both parental homes and reasonable proximity between those homes.
1.30 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.[52] 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.
1.31 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.[53] However "no matter how well intentioned, wholesale intervention into the life of families is not likely to serve the interests of children."[54] 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.
1.32 Goldstein, Freud and Solnit[55] argue that parents should be presumed to have the capacity and responsibility to decide what is in the best interests of their children and the family. Parents should have the first opportunity to meet the needs of their children and maintain family ties without state intervention. Folberg[56] argues that the state doctrine of parens patriae enables the state to take responsibility for the welfare of the children only when parents cannot agree or cannot adequately provide for them.
"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. … 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."[57]
1.33 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 which the state should have to intervene in the family and how it exercises its discretion in implementing those powers.
1.34 The Hong Kong Bill of Rights, enacted in the Hong Kong Bill of Rights Ordinance (Cap 383),[58] lays down some parameters for the exercise of the powers of the state to intrude into the lives of family members. Article 14 of the Hong Kong Bill of Rights, which is equivalent to article 17 of the International Covenant on Civil and Political Rights,[59] 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."
1.35 Article 19 of the Hong Kong Bill of Rights[60] 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 of marriage, provision shall be made for the necessary protection of children. It recognises that spouses have equal rights and responsibilities in relation to marriage and dissolution.
1.36 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 his family, society and the State." These provisions need to 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 Hong Kong Bill of Rights.
1.37 The
United Nations General Assembly adopted the Declaration of the Rights of the
Child in 1959. In 1989, the UN
Convention on the Rights of the Child[61] was
adopted. The People's Republic of
1.38 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." 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."[62]
1.39 The Convention refers to the Declaration of the Rights of the Child, where it stipulates 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."
1.40 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.[63]
1.41 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."
1.42 The Administration of the Hong Kong Special Administrative Region is under a moral obligation, as far as practicable, to ensure that the substantive legislative provisions, and the way disputes on custody and access are resolved, comply with the United Nations Convention on the Rights of the Child. However, unless the provisions of a convention are incorporated into domestic legislation, it is not possible to apply to court to force a government to comply with its international obligations.
[1] Australian Family Law Council, Patterns of parenting after separation (Apr 1992), para 1.01.
[2] Same
as above.
[3] See discussion below, at paras 1.8 to 1.21.
[4] Australian Family Law Council, above, at para 1.01.
[5] For example, England, Scotland and Australia, which have all now adopted a more modern "joint parental responsibility" legal model for determining post-divorce arrangements for children.
[6] Paras 1.5 to 1.21 of this report are based on an unpublished dissertation by Paula Scully, Obstacles to referral, planning and implementation of family mediation as a dispute resolution process in Hong Kong; reflections based on foreign systems (Apr 1996).
[7] Irving and Benjamin, Family mediation - contemporary issues (1995), at 9.
[8] Divorce and after (1971).
[9] "Crisis theory and the process of divorce," Social Casework (1975) 56(4), at 205 to 212.
[10] Isaacs et al, "Social networks, divorce and adjustment; a tale of three generations," Journal of Divorce (1986) vol 9, 1 to 16. "Under the intense stress of the divorcing process, a substantial proportion of previously adequate parents become increasingly insensitive to the children's needs or completely abandon their parenting responsibilities with devastating consequences for child adjustment": Irving and Benjamin, above, at 64.
[11] Honing, "Stress and coping in children (Part 1)," Young Children (1986) 41(4), 50 to 63.
[12] Wallerstein, "Children of divorce; stress and developmental tasks," in Garmezy & Rutter (eds) Stress, coping and development of children (1983).
[13] Garbarino et al, Children and families in the social environment (1992, 2nd ed), at 155 to 156.
[14] Hetherington, "Coping with family transitions; winners, losers and survivors," Child Development (1989) 60, 1 to 14, cited in Irving and Benjamin, above, at 58.
[15] Wallerstein, above. Conflict arising out of divorce can
affect children's functioning at school: Bisnaire, Fireston & Rynard,
"Factors associated with academic achievement in children following
parental separation," American
Journal of Orthopsychiatry (1990) 60, at 67 to 76. They may be more likely to use
psychiatric and other mental health services:
[16] Plunkett, Schaefer, Kalter, Okla & Schrier, "Perceptions of quality of life following divorce; a study of children's prognostic thinking," Psychiatry (1986) 49, 1 to 12.
[17] Grynch and Fincham, "Marital conflict and children's adjustment; a cognitive-contextual framework," Psychological Bulletin (1990) 108, at 267 to 290.
[18] Irving and Benjamin, Family mediation - contemporary issues (1995), at 61.
[19] Same as above, at 63.
[20] Booth et al, "The impact of parental divorce on courtship," Journal of Marriage and the Family (1984) 65(4), 85 to 94. See also Irving and Benjamin, above, at 67.