Why Hong Kong child custody reform faces more delay despite lawyers’ support

Eleven years after the first proposals were made in the Law Reform Commission of Hong Kong’s “Child Custody and Access” report, we are still awaiting reform of the law relating to children.

In November 2015, it was heartening to hear the chief justice - the city’s top judge - finally express full support for a Children’s Bill that would simplifiy, consolidate and clarify the myriad laws and outdated concepts relating to children in Hong Kong.

There was a public consultation, which ended in March 2016, and an endorsement of the legislative proposal from the Hong Kong Bar Association followed in April. As lawyers, we are eager for this law to be made a reality.

What would the Children’s Bill change? To illustrate how confused current laws are, different ordinances give different ages to define a “child”. The new bill proposes a child should be defined as someone below the age of 18. Most people probably thought this was already the case.

One of the fundamental proposals is to replace outdated terminology. The existing terms “custody”, “care and control”, and “access” may be familiar. However, they give the wrong impression that the parent who “gets custody” of children can make all the decisions for them, and the parent who does not is disenfranchised and kept out of their children’s lives.

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This is highly emotive, avoidable and does not reflect the underlying legal position. In reality, even if one parent is awarded sole custody, the other parent can always be heard on the important issues in a child’s life, such as education, religion and health care.

Furthermore, it is the parent with whom the children are at any given time who has the say in the small matters relating to what they eat, whether they do their homework, how much television they can watch – even when the children are on “access” visits. Therefore, both parents continue to have a joint parental responsibility for their children, even if they are no longer a couple.

It is proposed that this concept of “parental responsibility” should replace the terminology of custody, care and control, and access, with their outdated connotations of parental ownership and rights over children. Instead, there would be a general recognition that both parents remain involved with the child’s upbringing, under a “Child Arrangement Order”. This will cover what actually happens with the child on a daily basis and for holidays, etc. No more “winning and losing” – just practical arrangements in the best interests of the child.

The new bill sets out instances that require notification to the other parent, to make it clear both parents are able to be consulted on important decisions, including medical or dental treatment, changes to schooling, residence, religion and marriage, removing a child from the jurisdiction for less than a month, or a change in the child’s domicile or nationality. Express consent from both parents will be required to change the child’s surname, remove the child from the jurisdiction for more than a month, or their permanent removal from Hong Kong.

In another fundamental change, the court will look at a list of factors which will guide them to find the most appropriate arrangements for each child. In fact, our family court judges have been following a checklist for many years that is based on the equivalent English legislation.

Having a formal checklist will be helpful, not only to the judiciary and lawyers, but also the general public, to see what sort of factors a court will be obliged to consider. This includes the voice of the child, their physical, emotional and educational needs, the child’s age, maturity, sex, social and cultural background, the parents’ ability to meet the child’s needs and, in appropriate circumstances, whether there has been any family violence.

The voice of the child has always been a thorny issue. There is general consensus that a child should be heard, depending on his or her age and maturity. This is in line with Hong Kong’s obligations under the United Nations Convention on the Rights of a Child, to which it is a signatory. In 2012 the chief justice, in the absence of legislation, issued a guidance note for the judiciary in respect of hearing children in proceedings. The new bill has a separate section in this respect, to facilitate their views being taken into account in the least intrusive manner.

Another key change is that third parties will be able to apply for a Child Arrangement Order in relation to a child. This will include grandparents and step-parents who may be the most appropriate person to be caring for the child.

The Guardianship of Minors Ordinance (which deals with children of unmarried parents, amongst others things) will be abolished, and relevant sections re-enacted and consolidated into the new bill. This should eliminate any inconsistencies between the status of children born within and outside wedlock. It will also deal with guardianship issues currently covered by that ordinance, including what happens on the death of a parent.

In conclusion, the new bill simplifies, consolidates and clarifies the law relating to children. By doing away with the outdated terminology, there is a recognition that children benefit from the involvement of both of parents. This is what children want and need, and as the law stands, with its connotations of winners and losers, discontent and alienation, it is not what children are currently getting.

So where are we now with this bill? As noted, it has already undergone public consultation and been endorsed by the Bar Association, which made a number of suggestions while emphasising that any changes it suggested should not delay implementation. The public appear to be supportive of the “parental responsibility” model and adopting the “best interest of the child” as the guiding principle in proceedings, and of removing limitations on third parties applying for child arrangement orders. However, interest groups have expressed concerns about whether the Hong Kong government is sufficiently prepared to implement the bill in a meaningful way.

The Hong Kong Committee on Children’s Rights is concerned to ensure that the “best interests of the child” principle is not mere rhetoric but a true benchmark by which proceedings concerning child welfare will be conducted. This concerns public spending: the government needs to ensure that adequate, effective and sustainable public spending is available for the progressive realisation of children’s rights under the bill.

The implementation of contact centres will require budgetary considerations, as will the proposed Maintenance Board, to help with parents who delay or refuse to meet maintenance obligations. This was precisely what the Bar Association wanted to avoid – arguments over budget when there is a pressing need for a simple reform of the law.

As for government action to progress the bill:

• The 2016 policy address was largely silent on the matter, save for mentioning a pilot programme for children contact centres

• The 2016 budget speech made no mention of the bill at all

• The 2016-17 budget’s “Expenditure Analysis by Head” mentioned that the Social Welfare Department would “continue to promote the parental responsibility model” but did not make a specific budget allocation.

There does not appear to be any tangible plan of action to ensure necessary resources will be made available to implement the proposed changes. However, these considerations should not delay the passing of this long-awaited bill. As it stands, this legislation seems to have become bogged down, and runs the risk of succumbing to legislative inertia.

It is understood that the government is still reviewing the results of the consultation and we now await its decision on the next steps to be taken. Bearing in mind the positive feedback from the consultation, we can only hope the government is encouraged to keep moving to make this reform a reality.

Rita Ku is a partner at law firm Withers. Philippa Hewitt is a professional support lawyer at the firm