Divorce move to help children

PUBLISHED : Thursday, 29 December, 2011, 12:00am
UPDATED : Thursday, 29 December, 2011, 12:00am

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A divorced couple would share joint responsibility for their children rather than fighting for sole custody in the courts, under proposed legislation put forward by the government for public consultation yesterday.

The 'joint parental responsibility' model, first devised by the Law Reform Commission in 2005, calls for both parents' consent on important decisions for children - such as emigration, travelling out of Hong Kong for more than a month and changing their surname.

Permanent Secretary for Labour and Welfare Paul Tang Kwok-wai said the model, already adopted in common-law jurisdictions such as England, Australia and New Zealand, would have a far-reaching impact on family law.

'It is more child-focused, emphasising parents' responsibilities instead of rights. There are hopes it will reduce hostility between parents, as they would no longer need to fight for sole care of their children in the courts,' Tang said.

Under the existing law, courts arrange the parental rights of a divorced couple through custody orders. It may make a sole-custody order, empowering only one parent to make important decisions about the child, or a joint order that shares the power.

The proposal would make joint responsibility a default arrangement. The parent winning a 'residence order' to live with the child would need the other parent's consent over important decisions relating to the child.

He or she would also have to notify the other parent on issues such as the child having a major operation or long-term medical or dental treatment, a change in schooling, religion, marriage and moving house.

Joint care would not be applied to children from families with a history of violence. The commission did not recommend any penalty for a breach by a parent.

'The loss of a say over the child's well-being may be a big enough penalty for the parent,' Tang said.

But the government 'had no stance' on whether the concept, now set for four months' consultation, should be promoted by legislation or through education, because there was still no social census, he said.

Officials' informal meetings with stakeholders in the past few years have found diverse views. While the legal sector supports the legislation, social workers and women's groups have reservations. They say that under existing law, a court can already effectively make a joint-custody order. They fear the proposed arrangements might be used by hostile parents to obstruct or harass the other spouse, leading to even more litigation.

Commission studies found that England and Australia are still having problems after introducing similar laws. The number of court disputes increased and relevant arrangements were abused by trouble-making parents. Singapore has not introduced such a law.

Paulina Kwok Chi-ying, supervisor of the Caritas Family Crisis Support Centre, said the proposal should come with counselling and mediation sessions to further help divorcing parents develop a co-operative attitude.

20,000

The number of divorces in Hong Kong last year, up from 19,000 in 2009.