The Law Reform Commission of Hong Kong

Report

Child Custody and Access

This report can be found on the Internet at:

<http://www.hkreform.gov.hk>

March 2005

The Law Reform Commission was established by the Executive Council in January 1980. The Commission considers such reforms of the laws of Hong Kong as may be referred to it by the Secretary for Justice or the Chief Justice.

The members of the Commission at present are:

The Hon Ms Elsie Leung Oi Sie, GBM, JP,

Secretary for Justice (Chairman)

The Hon Mr Justice Andrew Li, Chief Justice

Mr Tony Yen, SBS, JP, Law Draftsman

Dr John Bacon-Shone

The Hon Mr Justice Bokhary, PJ

Professor Albert Chen, JP

Mr Anthony Chow, SBS, JP

Professor Y K Fan, JP

Mr Alan Hoo, SBS, SC, JP

The Hon Mrs Sophie Leung, SBS, JP

Professor Mike McConville

Mr Benjamin Yu, SC

The Secretary of the Commission is Mr Stuart M I Stoker and its offices are at:

20/F Harcourt House

39 Gloucester Road

Wanchai

Hong Kong

Telephone: 2528 0472

Fax: 2865 2902

E mail: hklrc@hkreform.gov.hk

Website: <http://www.hkreform.gov.hk>

The Law Reform Commission

of Hong Kong

Report

Child Custody and Access

________________________________

CONTENTS

Chapter	Page

Preface	1

1. Background to the law in this area	4

Introduction	4
The wider social context of divorce	5
Divorce as a complex process	5
Stages of divorce	6
Impact of divorce on children	6
Effect of access on child's adjustment to divorce	8
Long term harm caused by divorce	9
Conclusions from research	10
The changing legal paradigm in child custody and access	11
Children's rights	11
Changing family structures	12
Joint custody	12
The wider legal context of divorce	13
The role of the State	13
Hong Kong Bill of Rights Ordinance (Cap 383)	14
United Nations Convention on the Rights of the Child	15

2. The current law and practice in Hong Kong – an overview	17

Introduction	17
The legal parent-child relationship	17
"Child" or "minor"	18
"Parent" or "guardian"	18
Parental "rights and authority"	19
What is meant by 'custody' and 'access'	21
Custody	21
Access	22
Sole custody order	23
Split orders	24
Joint custody	24
The court's approach to custody and access – the welfare of the child	25
The welfare principle	25
Factors in determining the welfare of the child	27
First and paramount consideration	31
Judicial discretion	32
The divorce process in Hong Kong	33
Relevant legislation	33
Establishing the relevant 'grounds' for divorce	34
Procedural steps in the divorce process	36
Recent developments in divorce procedure	39

3. The Current law and practice in Hong Kong – relevant legislation	40

Introduction	40
Guardianship of Minors Ordinance (Cap 13)	41
Applications for custody and access	41
Care order	42
Supervision order	43
Guardianship	43
Criticisms of the Guardianship of Minors Ordinance (Cap 13)	45
Matrimonial Causes Ordinance (Cap 179)	47
Care order	47
Supervision order	48
Criticisms of the Matrimonial Causes Ordinance (Cap 179)	48
Matrimonial Causes Rules (Cap 179)	49
Applications by third parties	50
Powers of the Director of Social Welfare	51
Social welfare officer's report	51
Proceedings in other courts	51
Separate representation	51
Criticisms of the Matrimonial Causes Rules (Cap 179)	52
Matrimonial Proceedings and Property Ordinance (Cap 192)	53
Arrangements for the children	53
Custody orders	54
Child of the family	55
Age	55
Unfit parent	56
Criticisms of Matrimonial Proceedings and Property Ordinance (Cap 192)	56
Separation and Maintenance Orders Ordinance (Cap 16)	57
Application for orders	57
Adultery	58
Variation or discharge of orders	58
Criticisms of the Separation and Maintenance Orders Ordinance (Cap 16)	58
Protection of Children and Juveniles Ordinance (Cap 213)	59
Powers in relation to a child in need of care or protection	60
Access to children in care	61
Child assessment	62
Criticisms of Protection of Children and Juveniles Ordinance (Cap 213)	62
Other relevant legislation	65
Domestic Violence Ordinance (Cap 189)	65
Adoption Ordinance (Cap 290)	65

4. The current law and practice in Hong Kong – recent developments in family law	67

Introduction	67
The use of mediation in family proceedings	67
Pilot study on the use of mediation in the Family Court	68
Law Reform Commission report on the family dispute resolution process	69
Further developments relating to the court process in family matters	71
Expansion of the special procedure divorce process	71
Reform of ancillary relief procedures in matrimonial proceedings	72
Other reform proposals relating to child custody and access arrangements	73
Law Reform Commission report on guardianship of children	73
Law Reform Commission report on international parental child abduction	75

5. Comparative Law: England and Wales	77

Introduction	77
Position prior to the Children Act 1989	77
The aims of the Children Act 1989	79
The general principle of parental responsibility	80
Meaning and scope of parental responsibility	80
Acquisition of parental responsibility	81
The implications of parental responsibility	85
The general principle of the welfare of the child	88
The welfare principle	88
Duty to approve arrangements for the children	90
The non-intervention principle	91
Welfare checklist	93
Welfare reports	95
Delay	95
Orders relating to children in family proceedings	96
Introduction	96
Residence order	98
Contact order	99
Specific issue order	100
Prohibited steps order	100
Supplementary provisions	101
Relevant child	102
Circumstances in which orders may be made	103
Persons who can apply	104
Child as a party	106
Enforcement of section 8 orders	107
Other powers of the court	109
Jurisdiction	109
Supervision orders	109
Participation of the child	111
Wardship	114
Privacy	116
Publicity	117
Developments since implementation of the 1989 Act	117
Overview	117
Adoption and Children Act 2002	118
Contact orders	118
Child protection generally	121
Delay	122
CAFCASS	123
Family Law Protocol	123
Impact of the Human Rights Act 1998	124

6. Comparative Law: Scotland	125

Introduction	125
Overview of the Children (Scotland) Act 1995	125
The general principle of parental responsibility	126
Parental responsibilities	126
Parental rights	128
Acquisition of parental responsibility	130
The implications of parental responsibilities and rights	131
The general principle of the welfare of the child	133
Duty to approve arrangements	133
The non-intervention principle	134
Welfare checklist	135
Delay	136
Orders relating to children in family proceedings	136
Introduction	136
Effect of orders	139
Persons who can apply	140
Other powers of the court	140
Participation of the child	140
Developments since implementation of the 1995 Act	144
Parental responsibilities and rights of unmarried fathers and step-parents	144


7. Comparative Law: Australia	146

Introduction	146
Background to the 1995 reforms	147
The position under the former law	147
Impact of the UK Children Act 1989	148
"Welfare" and "best interests"	148
Parental responsibility	148
Parenting orders	149
Language	149
Family Law Reform Act 1995	150
Objectives	150
Parental responsibility	151
Parenting plans	151
Court's power to make parenting orders	152
Best interests and checklist of factors	153
Orders by consent in favour of non-parent	155
Death of parent with whom child lives	156
No-order principle	156
Breaches of orders	156
Participation of the child	157
Family violence	161
Subsequent review of the 1995 reforms	164

8. Comparative Law: New Zealand	167

Overview of the law of child custody and access in New Zealand	167
Introduction	167
Guardianship Act 1968	168
Welfare of the child paramount	168
Guardianship	169
Custody	170
Access	171
Voice of the child	172
Ministry of Justice consultation exercise on custody and access	172
Care of Children Act 2004	174
Introduction	174
Objectives of the Act	175
Main reforms proposed to the existing law	176
Law Reform Commission report on dispute resolution in the Family Court	182

9. Recommendations for reform – parental responsibility and rights	185

Introduction	185
The general principle of the welfare of the child	187
Applicable proceedings	187
"First" consideration	190
"Best interests"	190
Statutory checklist of factors	191
Parental responsibility and rights	200
Concept of parental responsibility	200
Parental rights	202
Age at which parental responsibility ceases	205
Father as natural guardian	206
Married parents	207
Acquisition of parental responsibility by unmarried fathers	207
Permanency of parental responsibility	212
Parents acting independently	212
Scope of parental responsibility – when consent or notification is required	213
Acting incompatibly	217
Delegation of parental responsibility	218
Continuing parental responsibility	219
Acquisition of parental responsibility by guardians	220

10. Recommendations for reform – types of court orders for children	223

Introduction	223
English provisions	223
Australian provisions	223
Custody orders	223
Residence order	225
Definition of a residence order	226
Change of surname	227
Non-parents	228
Contact order	228
Specific issues order	230
Prohibited steps order	231
Supplementary requirements	232
Right of a third party to apply	233
Arrangements for the children	234
No order principle	237
Family proceedings	239
Age at which parental responsibility ceases for the purposes of court orders	240

11. Recommendations for reform – special consideration for cases involving family violence	243

Introduction	243
Overseas research findings on contact and family violence	245
England	245
Australia	251
Our recommendations for reform	253
Introduction	253
The Administration to review Hong Kong's general law on domestic violence	254
A new definition of "domestic violence"	259
The court's powers under the Domestic Violence Ordinance (Cap 189) in relation to custody and access orders	261
Statutory checklist of factors in family proceedings legislation to include reference to family violence	263
Scope of parental responsibility – consent and notification requirements	263
Judicial guidelines to supplement legislative reforms	263
More information to be available to the court	265
Supervised contact	265
On-going training for those handling family cases	266
Privacy issues	266
Long-term research	267

12. Recommendations for reform – the voice of the child	268

Introduction	268
The views of the child	268
How and when child's views taken into account	271
How the views of a child are expressed	272
Children not required to express views	274
Age of maturity for the purpose of obtaining views	275
Separate representation	276
Introduction	276
Rule 108 of the Matrimonial Causes Rules (Cap 179)	277
Rule 72 of the Matrimonial Causes Rules (Cap 179)	277
Anomalies in relation to separate representation under the Matrimonial Causes Rules (Cap 179)	278
Types of proceedings where a separate representative may be appointed	278
Person who may be a guardian ad litem	279
Who can apply for a separate representative to be appointed	280
Criteria for appointment of separate representative	281
Guidelines for duties of separate representative	283
Child as a party	285
Costs	286

13. Recommendations for reform – related matters	288

Introduction	288
Separation and Maintenance Orders Ordinance (Cap 16)	288
Powers of the Director of Social Welfare	289
Power to order care and supervision orders	290
Definitions of care and supervision orders	291
Grounds	292
Application of the welfare or best interests principle	292
Ex parte applications by the Director of Social Welfare	293
Third parties	294
The court environment for the hearing of care and protection proceedings	295
Separate representation for public law proceedings	296
Assessment	299
Child's views	300
Contact in respect of a child in care	301
Provisions relating to age	302
Age at which wardship orders cease	303
Minimum age for marriage without parental consent	304
Age and consent for medical treatment	305
Enforcement of orders	306
Consolidation of legislation	307
Policy co-ordination	309

14. Summary of Recommendations	311


Annexures

Annex 1 - List of the respondents to the Consultation Paper on Guardianship and Custody	335

Annex 2 - Relevant overseas legislation and draft sections for proposed Children's Bill	337

Annex 3 - Guidelines for good practice on parental contact in cases where there is domestic violence	347

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:

Hon Ms Miriam Lau, GBS, JP

Chairperson

Sole Practitioner
Miriam Lau & Co

Master de Souza

Deputy Chairman

Master

High Court

Miss Rosa Choi

Assistant Principal Legal Aid Counsel
Legal Aid Department

H H Judge Chu

Judge

District Court

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

Consultant

Mrs Cecilia Tong

Regional Officer (Retired)

Social Welfare Department

335

337

347

Preface