LAW REFORM

'Paradigm shift': Children's bill to legislate for joint responsibility for children in divorces

Under 'children's bill', divorced couples would have joint responsibility for their children, who would be given greater rights in legal proceedings

PUBLISHED : Saturday, 14 November, 2015, 2:21am
UPDATED : Saturday, 14 November, 2015, 2:27am

The outdated family law on child custody is set for a radical overhaul, with the focus on "joint responsibility" for children following a divorce and greater rights for offspring.

This came as the welfare minister called for a "paradigm shift" on the issue and promised a public consultation later this month.

The exercise dubbed the "children's bill" would also suggest that the court allow children to play a bigger role in identifying their preferences and voicing opinions during divorce proceedings, Secretary for Labour and Welfare Matthew Cheung Kin-chung said yesterday.

Cheung is acting on the Law Reform Commission's 2005 proposal to replace the term "child custody" with "parental responsibility", a non-absolute concept that cannot be fought over in the courts. It is aimed at saving parents time and money by avoiding legal disputes.

The government will start a four-month public consultation by the end of this month before tabling a bill to lawmakers.

The new proposal is made against the backdrop of rising divorce rates. Last year, 20,019 decrees were registered, up from 10,492 in 1997.

Some 65,000 children below the age of 18 were currently in a single-parent family, compared to 54,000 a decade ago, Cheung said.

At the core of the reform is the proposal to replace the concept of parental custody with a duty of joint responsibility. Family lawyers have said that parents with custody usually have the misconception that they have full authority over their children and can exclude their ex-spouse from parental care, easily triggering confrontation.

"It's a very important step forward in aligning Hong Kong's legislation with what's happening elsewhere - in Australia, New Zealand and the UK - which is always guided by the principle of the best interests of the child," Cheung said.

Children will also be given increased representation.

"Currently, there is no statutory obligation to interview children," the secretary said. "To address the problem, we propose ... to set up a mechanism [where] if the child indicates directly or indirectly his or her desire ... he or she should be given the facility to express such views."

It will be proposed that the court may make an order for independent legal representation for a child.

Speaking at the same forum organised by the Chinese University's faculty of law, Chief Justice Geoffrey Ma Tao-li called it "sometimes, or even often, not satisfactory" for children to be left unrepresented and their fate to be decided by parents and their respective lawyers. "The law had actually not developed very well over the centuries in the protection of children as vulnerable persons," Ma said.

Billy Wong Wai-yuk, executive secretary of the Hong Kong Committee on Children's Rights, said: "We've waited so many years for this, and it is exciting to see this amendment is finally being announced."

She called the change of "rights" over a child to "responsibility" towards a child an important mindset change for the courts, social workers and parents.