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: [email protected] 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 i Chapter Page "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 25 the child 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 40 legislation 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 45 (Cap 13) 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 ii Chapter Page 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 56 Ordinance (Cap 192) 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 58 Ordinance (Cap 16) 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 62 Ordinance (Cap 213) 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 67 developments in family law 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 69 resolution process Further developments relating to the court process in family 71 matters Expansion of the special procedure divorce process 71 iii Chapter Page Reform of ancillary relief procedures in matrimonial 72 proceedings Other reform proposals relating to child custody and access 73 arrangements Law Reform Commission report on guardianship of 73 children Law Reform Commission report on international parental 75 child abduction 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 iv Chapter Page 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 144 and step-parents v Chapter Page 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 167 Zealand 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 172 access Care of Children Act 2004 174 Introduction 174 Objectives of the Act 175 vi Chapter Page Main reforms proposed to the existing law 176 Law Reform Commission report on dispute resolution in the 182 Family Court 9. Recommendations for reform – parental responsibility 185 and rights 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 213 notification is required 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 223 children 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 vii Chapter Page 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 240 of court orders 11. Recommendations for reform – special consideration for 243 cases involving family violence 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 254 domestic violence A new definition of "domestic violence" 259 The court's powers under the Domestic Violence 261 Ordinance (Cap 189) in relation to custody and access orders Statutory checklist of factors in family proceedings 263 legislation to include reference to family violence Scope of parental responsibility – consent and notification 263 requirements 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.