Traditional Chinese Simplified Chinese Email this article
LCQ1: Child guardianship and custody

     Following is a reply by the Secretary for Labour and Welfare, Mr Matthew Cheung Kin-chung, to a question by the Hon Albert Ho Chun-yan in the Legislative Council today (May 13):


     A sub-committee of the Law Reform Commission of Hong Kong (LRC) issued in 1998 a consultation paper on the law relating to guardianship and custody of children, and issued between 2002 and 2005 four reports on related issues, including the report on Child Custody and Access.  In this connection, will the Government inform this Council:

(a) given that over a decade ago, England and Australia had carried out a reform of the law relating to arrangements for children after their parents' divorce by introducing a joint parental responsibility model, and the aforesaid report recommended that Hong Kong should follow the practices in those jurisdictions, whether the authorities have any plan to adopt the recommendation of LRC to implement Article 18 of the Convention on the Rights of the Child of the United Nations, which states that both parents have common responsibilities for the upbringing and development of their children; and

(b) given that the aforesaid consultation paper has been issued for more than a decade, and the authorities indicated in 2005 that they were carefully studying the relevant recommendations in the four reports, but they have not yet reported to the Panel on Welfare Services of this Council the Government's stance, of the reasons for the slow progress of the study being carried out by the authorities; whether it has assessed if the recommendations of LRC and the relevant consultation outcome still meet current circumstances; whether the Government has a timetable for amending the law concerned?


     The Law Reform Commission of Hong Kong (LRC) issued four reports on child guardianship and custody issues, namely, the Report on Guardianship of Children, the Report on International Parental Child Abduction, the Report on the Family Dispute Resolution Process and the Report on Child Custody and Access.  Examination of the one on the Family Dispute Resolution Process within the Administration was led by the Home Affairs Bureau (HAB), whereas the Labour and Welfare Bureau is responsible for coordinating and following up the other three reports.

     The four reports have made a total of 124 reform recommendations.  They relate to the areas of responsibilities of a number of bureaux, departments and enforcement agencies and involve amendments to various pieces of legislation. The implementation of some of the recommendations is intertwined and carries far-reaching implications.  They have to be carefully considered.

(a) Part (a) of the question asks whether the Administration would adopt the recommendations of the LRC and follow other jurisdictions in introducing the "joint parental responsibility" model into Hong Kong's Family Law.

     The relevant recommendations were made in the Report on Child Custody and Access published by the LRC in 2005, with the aim of enabling both parents to maintain an active involvement in the lives of their children after divorce.  The LRC recommended introducing the new "joint parental responsibility" model, as a reform to the existing custody arrangement under which the custody of a child is usually granted exclusively to one of the parents while only the right of access is granted to the other parent.  Specifically, the LRC recommended that the Administration should follow the practices of England and Australia to abolish the existing custody orders, replace it with residence orders and introduce contact orders, specific issues orders and prohibited steps order, etc.  The LRC also recommended specifying in law that the parent granted the residence order would only have the right to reside with the concerned child and make decisions relating to the day-to-day care of the child.  For major decisions affecting the child, he/she would have to notify or obtain the prior consent of the other parent.

     Members would probably agree that the LRC's recommendations are fundamentally changing the existing concept of "custody" under the Family Law and will have far-reaching implications on children and family on various fronts.  Moreover, owing to the differences in cultural background, the family laws of other countries may not be entirely suitable for Hong Kong.  We therefore need to examine carefully each of the 72 recommendations of the LRC report and consider them in a holistic manner, consulting stakeholders as and when necessary during the process.

     In fact, the relevant recommendations are more complicated and controversial than we expected.  We have consulted the social welfare sector and women's groups.  Although most of them agreed with the concept underlying the "joint parental responsibility" model and thought that parents still had responsibilities for their children and the right and duty to be involved in major decisions relating to their children even after divorce, some respondents considered that it might not be advisable to adopt this model in local Family Law.  Some worried that parents whose relationships broke up after divorce might abuse the relevant legislation and obstruct the making of major decisions relating to the child, which in the end will hinder the development of the child and work against their interests.  Moreover, the proposed legislation will specify that the parent who resides with the child has to notify or obtain the prior consent of the other parent before making major decisions for the child.  This may also cause unnecessary concerns and disruptions to victims of domestic violence, or may even lead to incidents of violence.

     In addition, studies indicate that there has been an increase in the number of court disputes in Australia subsequent to the introduction of the "joint parental responsibility" model.  This suggests that the new model might not be able to change parents' customary concept on custodial responsibility; instead, it might be abused by trouble-making parents.

     In sum, the Government endorses in principle the well-meaning concept underlying the "joint parental responsibility" model.  However, in deciding whether and how to adopt the recommendations of the LRC, we need to examine carefully the pros and cons of introducing the new model, considering in particular the views of relevant stakeholders and make reference to overseas experience.  At this stage, we have an open mind on the recommendations.

(b) As for our actual progress, as I have mentioned just now, the four reports made a total of 124 recommendations which relate to the areas of responsibilities of a number of bureaux and departments and will bring about fundamental changes to some long-established concepts of parental rights and responsibilities in our community.  Many of them are also controversial and inter-related.  It takes time to consider them.

     Although the Administration has not yet finished the examination of all the recommendations of the four reports, we have taken into account the recommendations of the LRC in considering related issues.  For instance, we had adopted the relevant parts of the LRC Report on Child Custody and Access in reviewing the Domestic Violence Ordinance (DVO).  We had proposed amendments to the DVO so as to extend its coverage to ex-spouses and cohabitees whose relationship had ended; substantially enhanced the protection to children under the DVO; and introduced provisions empowering the court to vary or suspend the custody order or access order currently in force when making an injunction under the DVO regarding the child concerned.  The amendment bill was passed by the Legislative Council in June 2008 and has already taken effect.

     Besides, according to information provided by HAB, since the release of the Report on the Family Dispute Resolution Process, the Administration has been working on family mediation.  For example, the Legal Aid Department, after consulting the Legislative Council Panel on Administration of Justice and Legal Services, had launched a one-year pilot scheme on meditation in matrimonial cases in March 2005 to examine the effectiveness of mediation and to consider whether funding could be provided for mediation in legally aided matrimonial cases.  The Administration recognises that mediation is an adjunct to litigation, and will make permanent arrangements for mediation in legally aided matrimonial cases.  The Administration is now considering the implementation details of the permanent arrangements for mediation in legally aided matrimonial cases, having regard to the recent development of the Civil Justice Reform which came into effect in April 2009.

     As regards the Report on Guardianship of Children and the Report on International Parental Child Abduction, we are discussing the various recommendations with relevant bureaux and departments, with a view to deciding whether and how to implement them as soon as practicable.

     Although the Report on Child Custody and Access is relatively more complicated and controversial, we have stepped up our efforts in studying the "joint parental responsibility" model it advocates.  We have been in touch with the Law Society of Hong Kong, frontline social workers and women's groups to collect their views.  We will meet the Law Society of Hong Kong and frontline social workers again shortly to further understand their stances on the subject.

     Considering that the Hong Kong society keeps changing, certain parts and recommendations of the reports may not suit prevailing circumstances.  In studying the recommendations, we have to collect views from stakeholders and have taken note of the latest developments in other countries in this regard.

Ends/Wednesday, May 13, 2009
Issued at HKT 12:52


Print this page