While there are similarities as to many aspects of private children law in Hong Kong and the approach in England and Wales, and some of the law in England and Wales may be applied as to certain issues, there are also notable differences. The terminology used differs from England and Wales and resembles instead the pre-Children Act 1989 terminology. In addition, there are differences between the provision for a child of a marriage and those born to unmarried parents, again reflecting in part the position as it was in England and Wales pre-2003 as to parental responsibility in particular. This article will set out the key aspects of private children law in Hong Kong and the approach of the courts in such cases.
There are a number of ordinances which together make up Hong Kong's legislation in respect of all matters concerning children:
- Guardianship of Minors Ordinance (Cap 13) (GMO);
- Matrimonial Causes Ordinance (Cap 179) (MCO);
- Matrimonial Proceedings and Property Ordinance (Cap 192) (MPPO); and
- Separation and Maintenance Orders Ordinance (Cap 16).
'Even if one parent is granted custody, that parent is not given absolute and independent authority to act without further reference to the non-custodial parent.
The Hong Kong courts have the power to make orders for custody, care and control and access. Section 19, MPPO empowers the court to make such order as it thinks fit for the custody and education of any child in any proceedings for divorce, nullity of marriage or judicial separation. For unmarried parents, the power of the court to make orders in relation to custody and access of a child is found in s10, GMO.
Issues of custody, care and control and access are dealt with by the Hong Kong family court as part of the divorce proceedings. The court has jurisdiction where either party to the marriage:
- was domiciled in Hong Kong at the date of the petition/ application;
- was habitually resident in Hong Kong throughout the period of three years prior to the date of the petition/ application; or
- has a substantial connection with Hong Kong (s3, MCO).
In relation to children born outside marriage, the jurisdiction of the Hong Kong court will depend on the facts of each individual case. The GMO does not contain any explicit limit on the court's jurisdiction. Section 26, GMO provides that the jurisdiction conferred on the court by the GMO shall be exercisable notwithstanding that any party to the proceedings is not domiciled in Hong Kong.
In deciding whether Hong Kong has jurisdiction, the court should be guided by the forum non conveniens principles, always bearing in mind that the interests of the child are of paramount importance. The question to be asked by the court is whether there is some other available forum, having competent jurisdiction, which is more appropriate for the trial of the action.
Custody, care and control and access
The terms 'custody' and 'care and control' are commonly misunderstood by lay persons. In the Court of Appeal decision in PD v KWW , Hartmann JA distinguished between the terms 'custody' and 'care and control' by comparing the nature of the decision-making required.
The decisions made by a custodial parent are of real consequence in safeguarding and promoting the child's health, development and general welfare. These decisions include:
- the child's religion;
- whether the child should undergo a medical operation;
- what school the child should attend; and
- what extracurricular activities the child should pursue.
A parent vested with custody has the responsibility of acting as the child's legal representative. However, there is a misconception that the parent who is granted sole custody 'wins' the right to make all the decisions in the upbringing of the child, and the parent who is not granted custody 'loses' the right to have any say.
Even if one parent is granted custody, that parent is not given absolute and independent authority to act without further reference to the non-custodial parent. A parent is always entitled to know and be consulted about major matters concerning the child. While the right to be consulted does not include a power of veto, it is nevertheless a substantial right. It is not merely a right to be informed, but a right to be able to confer on the matter in issue, to give advice and to have that advice considered. If the non-custodial parent believes the course proposed by the custodial parent is not in the child's best interests, they may apply for the matter to be determined by the court.
Care and control
The decisions made by a parent with care and control are more of a day-to-day nature. The decisions arise from the physical control of the child and attending to the child's immediate care. These decisions include what the child will wear that day, what the child may watch on television, when the child will go to bed and how to impose appropriate discipline.
Access means the time that a parent has contact with the child. Access may be supervised or unsupervised (supervised access is usually ordered in cases where there are concerns about the safety of the child) and defined or undefined (defined access is where the days and times of contact are specified). Access may also include staying access, which means the child can stay overnight with the parent in Hong Kong or on holiday outside Hong Kong.
As Hartmann JA said in PD v KWW, when a court awards care and control to one parent and rights of access to the other parent, the court is effectively awarding a form of shared care and control. This is because when a child has 'access' with a parent, particularly staying access, that parent assumes care and control of the child when the child is in their physical custody.
There have been calls for reform in Hong Kong and the introduction of a joint parental responsibility model which emphasises both parents having common responsibilities for the upbringing and development of their child, however to date there has not been any change in the legislation.
Factors to be considered by the court
The best interests of the child, and not the authority of the parents, are the court's paramount consideration.
When a court awards care and control to one parent and rights of access to the other parent, the court is effectively awarding a form of shared care and control.
In Gillick v West Norfolk and Wisbech Area Health Authority , Lord Fraser said:
... parental rights to control a child do not exist for the benefit of the parent. They exist for the benefit of the child and they are justified only in so far as they enable the parent to perform his duties towards the child.
In deciding questions of custody or the upbringing of a child, the Hong Kong court must follow the principles set out in s3(1), GMO. This includes considering what is in the best interests of the child, including giving due consideration to:
- the views of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and
- any material information including any report of the director of social welfare available to the court at the hearing
The term 'best interests' is not defined. This gives the court flexibility to look into all the welfare issues concerning the child in the particular circumstances of the case. Section 3, GMO is commonly referred to as 'the welfare principle', as prior to the amendment of s3, GMO in April 2012, the court was required to have regard to the welfare of the minor as the first and paramount consideration.
There have been calls for reform in Hong Kong and the introduction of a joint parental responsibility model which emphasises both parents having common responsibilities for the upbringing and development of their child.
In applying the welfare principle, the Hong Kong family court has consistently adopted the matters set out in s1(3), Children Act 1989, ie the relevant legislation in England and Wales, with modifications to suit local circumstances. The matters include:
- the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding);
- the child's physical, emotional and educational needs;
- the likely effect on the child of any change in their circumstances;
- the child's age, sex, background and any characteristics of the child which the court considers relevant;
- any harm which the child has suffered or is at risk of suffering; and
- how capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child's needs.
This list is commonly referred to as the 'welfare checklist'. In 2012, the Hong Kong Court of First Instance endorsed the practice of making use of the welfare checklist in H v N, with three caveats:
- absent statutory amendments, it is not compulsory to have regard to the welfare checklist and it is a matter for the judge to decide whether to or how to make use of the welfare checklist – a judge may pick some of the factors on the checklist which are relevant to the case and so long as the judge's decision is demonstrably in the best interests of the child, they cannot be criticised for not expressly applying the checklist, or not going through all the factors one by one;
- when applying the checklist, judges are not subject to the laborious necessity of expressly relating their findings in every case to its specific provisions one by one; and
- the welfare checklist is not meant to be exhaustive and judges should, and are entitled to, have regard to all other relevant factors even if they are not on the list.
Involvement of both parents
In the past, there were preconceptions as to the role of a mother and father in raising their child. The traditional view was that the mother should care for the child, especially a young child, and the father should provide financial support. These views are obsolete.
Nowadays, s3(1), GMO puts parents on an equal footing and any role or gender discrimination is not permissible, subject to the position where a child is born outside marriage (explained below). This reflects the shift in gender stereotypes and recognition that the long-term best interests of a child are best protected if both parents continue to be involved in the child's life.
In situations where a child is born outside marriage, s3(1), GMO grants the mother the same custodial rights and parental authority over the child as she would have if the child was born within marriage. However, the father does not automatically have these rights and authority, and will need to make an application to the court under s3(1)(d), GMO for a court order granting him some or all of the rights and authority that the law would allow if the child was born within marriage. The court seeks to not discriminate against children born outside marriage and applications will be treated the same as if the parents had been married.
Children dispute resolution pilot scheme
A pilot scheme for dispute resolution in children cases was introduced in October 2012. The aim of the scheme is to support mothers and fathers so that they are able to effectively parent their children following separation or divorce. The intention of the pilot scheme is to encourage parents to resolve their disputes quickly in a less adversarial atmosphere. The process prescribed in Practice Direction 15.13 (see www.legalease.co.uk/pd-1513) is mandatory.
In situations where a child is born outside marriage, s3(1), GMO grants the mother the same custodial rights and parental authority over the child as she would have if the child was born within marriage.
After the petition and supporting documents are filed at the Family Court Registry, and it is clear that there is a dispute over the child, the court will direct a children's appointment (usually heard together with the first appointment which is fixed when there is a dispute on finances).
Fourteen days before the children's appointment, or otherwise as directed, each parent should file at court and simultaneously exchange the children's form (Form J) which is designed to help the parties and the court determine the best arrangements for the child. Form J requires each parent to state, inter alia, their background information and that of the child, the child's current living arrangements, schooling and health, the parent's finances and the parent's proposals for future parenting arrangements. Form J was specifically designed to enable the court to have all the relevant information about a child and to avoid unhelpful commentary and allegations.
At the children's appointment, the court will make a direction for any reports to help decide what arrangements are in the best interest of the child. Usually the court calls for a social welfare report, which is prepared by a trained social worker (also called the welfare officer).
The welfare officer is the 'eyes and ears' of the court and they will interview all relevant people, including the parents themselves, the child, and other people who have regular contact with the child. The welfare officer will also observe how the child interacts with their carers. The welfare officer then makes a recommendation to the court based on their findings from the interview and observation. The welfare officer's recommendations carry substantial weight, although the court is not bound by the recommendations.
The court may also call for other expert reports, such as from a child psychologist in cases where the child demonstrates disturbed behaviour.
Children's dispute resolution hearing
The jewel in the crown of Practice Direction 15.13 is the children's dispute resolution hearing at which the judge will act as a conciliator and try to help and encourage the parties to reach a settlement. There is a high incidence of cases settling either at or shortly after the children's dispute resolution hearing.
The judge will give their views on each parent's proposed care arrangements and will also give indications as to what court order would be made if the case proceeds to trial. The children's dispute resolution hearing is not privileged, and the same judge will hear the matter at trial if settlement is not reached. Therefore, anything said at that hearing will be admissible at trial.
At all times, the parties have the option of mediation to try to resolve their disputes and are actively encouraged by the court to consider alternative dispute resolution options, including child-inclusive mediation if appropriate.
This article was first published in Family Law Journal's (www.lawjournals.co.uk) March 2020 issue.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.