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Following is the speech by the Secretary for Labour and Welfare, Mr Matthew Cheung Kin-chung, at the Third Children's Issues Forum today (November 13):
Mr Justice Johnson Lam (Vice-President of the Court of Appeal of the High Court), Madam Justice Bebe Chu (Judge of the Court of First Instance of the High Court), Mr Dennis Ho (Partner of Ho & Ip), Professor Anne Scully-Hill (Associate Professor of the Faculty of Law of the Chinese University of Hong Kong), Ms Corinne Remedios (barrister-at-law), distinguished guests, ladies and gentlemen,
It gives me great pleasure to address this high-powered audience comprising leaders from the local and overseas benches, legal profession, academia, healthcare and child protection sectors, mediators as well as non-profit organisations (NGOs) to discuss the important issues of children's welfare, well-being and safety.
Let me begin by paying warm tribute to today's hosts - the Law Society of Hong Kong, the Hong Kong Family Law Association, the Faculty of Law of the University of Hong Kong and the Faculty of Law of the Chinese University of Hong Kong - for jointly organising this two-day international and multi-disciplinary conference which seeks to safeguard and promote the interests of children in Hong Kong.
Children are the future and pillars of our society. Each child is an individual with his or her own rights to be respected and protected.
The Hong Kong Special Administrative Region (SAR) Government is committed to protecting children's welfare and rights. Indeed, we have been working on all fronts to cater for the diverse needs of our children.
Throughout the years, the Government has ensured that our children have equal access to education, healthcare and other public resources irrespective of their gender, family, ethnic, cultural and religious backgrounds. The current-term Government has, indeed, been stepping up efforts in alleviating child poverty, enhancing upward social mobility for our young people and protecting children from abuses and harm.
We all know that children are best nourished in a supportive, caring and loving family environment.
But sadly and in reality, not all families are intact and not all marriages work out harmoniously. For those families broken up by divorce, it is imperative to safeguard the children's interests. We must ensure that even if a marriage hits the rocks and comes to an abrupt and bitter end, parenthood can and should continue in the best interests of the children.
In fact, the issue of protecting the interests and rights of children affected by divorce is a matter of increasing community concern. Like many other places, Hong Kong has experienced and is facing a rising divorce rate, with the crude divorce rate standing at 3.1 per 1 000 population in 2013, nearly three times higher than that in 1991. The number of single parents living with children aged under 18 rose from 59 300 in 2001 to 68 500 in 2014, up by 15.5 per cent (or 9 200). Clearly, more families are being affected and more parents and children have to cope with the often traumatic changes and agonising aftermath arising from divorce.
Against this background and agreeing in principle that the concept of parental responsibility as recommended by the Law Reform Commission (LRC) in its Report on Child Custody and Access should be pursued, the Hong Kong SAR Government proposes to amend the law to realise the host of recommendations in the LRC report. To this end, my bureau (the Labour and Welfare Bureau) will launch a public consultation exercise on the draft bill before the end of this month before embarking on legislation later next year.
This marks an important step forward in the Government's continuous efforts in safeguarding the rights and interests of children hit by divorce.
Unlike Hong Kong's existing law on child custody and access which defines the parent-child relationship in terms of the "rights and authority" that parents have over their children, the notion of parental responsibility, on which our draft bill will be based, emphasises the continuing responsibilities of both parents towards their children rather than their individual parental rights. It also stresses the child's right to enjoy a continuing relationship with both parents if it is in the child's best interests. This is referred to as the "best interests principle" and this principle should guide all proceedings related to children.
In the past, when a couple divorced or were engaged in other matrimonial proceedings, the courts would often award one parent sole custody of the child - with all the decision-making power that implied - while the other parent's involvement with the child was limited to the right of access only. This scenario somehow implied that the custodial parent is a winner while the non-custodial is a loser. Also, over time, this often resulted in dwindling contact between the child and the non-custodial parent.
In recent years, the courts have recognised the importance of maintaining the direct involvement of both parents in the child's life as far as possible, and more orders for joint custody are now being made. Under these orders, although one parent may have daily care and control of the child, both parents continue to be actively involved in the child's life and in making major decisions affecting the child.
These are welcome changes but clearly more needs to be done to facilitate joint parental responsibility.
The Government's current thinking of adopting the LRC's recommendations is in line with the international development trend of family laws. Specifically, in England, Scotland, Australia and New Zealand, former child custody laws similar to Hong Kong's have been replaced by laws reflecting a new Parental Responsibility Model. Allied to this change in concept, a range of new court orders have been introduced in these jurisdictions to sweep away the old "custody" and "access" terminologies in family proceedings, with their connotations of ownership and authority over the child.
While further details of our public consultation exercise will be announced shortly, let me say at this juncture that the exercise will be open to the entire community, in particular the legal profession, to those who care about children's rights and welfare and to all stakeholders. We will take stock of their views and fine tune the draft bill as appropriate before embarking on legislation in earnest later next year.
As you may recall, the LRC published a series of four reports on the law relating to guardianship and custody of children with recommendations on the appropriate changes to the law between 2002 and 2005. My bureau is responsible for following up on three of them. The work for two of the reports, namely the Report on Guardianship of Children and the Report on International Parental Child Abduction, has been smoothly completed. We have since enacted the Guardianship of Minors (Amendment) Ordinance 2012 and the Child Abduction Legislation (Miscellaneous Amendments) Ordinance 2014. The present exercise on the Report on Child Custody and Access is the last report to be followed up by my bureau. The progress and achievements that we have made so far in following up the LRC reports reflect the importance that we attach to the reports and our commitment in improving the well-being of our children.
The LRC Report on Child Custody and Access has put forward a total of 72 recommendations, most of which are legislative proposals. In gist, the law reform will bring changes to the existing family law including, inter alia:
(a) Replacing the concept of "guardianship" (which is associated with the concept of "rights and authority") to redefine the parent-child relationship in law;
(b) Introducing various statutory lists covering (i) parental responsibility (encompassing both responsibilities and rights) and (ii) major decisions concerning the child's upbringing that would require express consent or notifications to the other parent;
(c) Introducing a range of new court orders (including the "child arrangements order", "prohibited steps order" and "specific issues order") to replace the existing custody and access orders:
(i) The "child arrangements order", which emphasises the concept of parental responsibility for the child (rather than parental authority over the child), is used to encompass and regulate arrangements (including timing) relating to the person with whom a child is to live, spend time or otherwise have contact; and
(ii) The "prohibited steps order" and "specific issues order" address the disagreements between parents on issues relating to their children; and
(d) Consolidating, as far as possible, the existing substantive provisions dealing with disputes relating to children, arrangements on divorce, guardianship, disputes with third parties, or disputes between parents without accompanying divorce proceedings, together with the legislative provisions resulting from the LRC report's recommendations.
This is necessarily a complex legislative exercise, but we have not shied away from it. To take forward the LRC's recommendations, my bureau had conducted a public consultation on the LRC report between December 2011 and April 2012. From the consultation, it transpired that whilst a clear majority of the respondents supported or did not dispute the concept of the Parental Responsibility Model, there was concern in some quarters over such a major law reform and on the precise implementation arrangements, as the devil always lies in the detail. In fact, even some of those who supported the implementation of the Model through legislative means raised queries on how the reform could be conducted. This explains why we will launch a consultation exercise to seek public views on our proposed legislation.
I am most grateful for the advice of the Judiciary, Department of Justice, Home Affairs Bureau and Social Welfare Department (SWD) for their advice and input in drafting the composite bill. I am equally appreciative of the sterling contribution of the legal community in laying the ground for the upcoming consultation. In fact, two of today's panellists, namely Mr Dennis Ho and Ms Corinne Remedios, have been advising my bureau not only on the consultation exercise, but also on the public education and publicity programmes relating to the Parental Responsibility Model, as well as the pilot children contact service, in their capacities as members of a dedicated working group under the high-level Social Welfare Advisory Committee.
We are well aware of the public concern over the need for adequate social support services for implementing the Parental Responsibility Model. The question is whether additional support services will be provided to divorced families to tie in with the proposed legislative reform and whether our community is ready for such a paradigm shift in parenting concept. After all, Hong Kong is an essentially Chinese society and has a different culture from that of other Western common law jurisdictions.
Recognising that the successful implementation of the Model and application of the best interests principle requires a significant change in the mindset of parents and the community at large, the Government has been striving to bring about this culture change.
To strengthen support for separated/divorced families, a number of support measures have been and will be implemented by the Government in partnership with NGOs and other interested parties.
First, the SWD has been stepping up its publicity and public education on the Parental Responsibility Model. These include launching a territory-wide campaign entitled "Marriage may end but parenthood goes on", distributing an information package with DVD and information sheets amongst social workers, parents, Government departments and other organisations concerned such as the Family Mediation Co-ordinator's Office and the Law Society of Hong Kong.
Second, the SWD has produced a set of handbooks to provide more detailed information and guidance for separated/divorced parents and their children on co-parenting issues for distribution by phases from September 2015 onwards.
Third, the SWD will launch a website shortly to promote the concept of parental responsibility.
Fourth, the SWD will produce a set of television and radio Announcements in the Public Interest as well as a poster for release by end-2015.
Fifth, the SWD has developed and is trial-running a short psycho-educational programme to instil the concept of continuing parental responsibility in separated/divorced parents.
Finally and rather importantly, in response to the suggestion of the legal profession and some welfare NGOs, the SWD will roll out a two-year pilot project on children contact service in the first half of next year to facilitate the arrangement of children contact with separated/divorced parents and to strengthen support for separated/divorced families so that children need not be torn between parents, irrespective of whether there are court orders on the divorce cases.
Before I close, allow me to digress a little and put down as reference for the Forum's discussion on child poverty tomorrow two policy measures in my toolbox targeted at tackling child poverty and promoting upward social mobility for the younger generation.
The first is the Child Development Fund, which seeks to enhance the longer-term development of disadvantaged children and reduce intergenerational poverty. The HK$300 million Child Development Fund was set up by my bureau in 2008. Over the years, over 10 000 children have benefitted from the scheme, including ethnic minorities, children with disabilities and those living in tiny cubicle apartments and subdivided units. This year, the Government has injected an additional HK$300 million into the Fund and this will benefit another 9 700 new participants.
Another new and even more potent policy initiative which my bureau will roll out in the second quarter of next year to tackle child poverty is the Low-income Working Family Allowance (LIFA). This pro-children LIFA scheme is also pro-employment. It seeks to encourage self-reliance and hard work. Eligible working families will be given a basic allowance tied to employment and working hours. Families with eligible children and young members will receive an additional allowance to promote inter-generational upward social mobility. The total allowance amount to be paid under the scheme is estimated at a hefty HK$3 billion per year. The scheme is expected to benefit over 200 000 low-income households, involving over 710 000 people including 177 000 children.
Ladies and gentlemen, the Hong Kong SAR Government is fully geared up in embracing the Parental Responsibility Model in the best interests of our children affected by divorce. We will enhance our social support services and public education programmes to prepare the local community for the paradigm shift. Let us all join hands to bring about this positive change. Thank you.
Ends/Friday, November 13, 2015
Issued at HKT 16:38
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