From "Custody" to "Parental Responsibility": The Need for Change

The Law Reform Commission of Hong Kong (“LRC”) published in March 2005 its Report on Child Custody and Access (“Report”).

After a period of nearly seven years, the Labour and Welfare Bureau (“LWB”) published on 28 December 2011 a Consultation Paper (the “Consultation Paper”) to invite submissions from the public, by 30 April 2012, on the Report’s recommendations, and more particularly, on the implementation of the “joint parental responsibility model” by legislative means.

Now, one year since the close of the submissions, the Government has recently put this topic of “Child Custody and Access” on the agenda of the Legislative Council Panel on Welfare Services, for discussion this very month.

This article offers an update on the debates concerning the current concept of custody and the new concept of “parental responsibility” advocated by the Report. We urge the government to implement the concept of “parental responsibility” without further delay.

Background to the LRC Report

In April 1995, a few years after England and Wales brought in its Children Act 1989, the then Attorney-General and the Chief Justice of Hong Kong requested the LRC to consider the law relating to custody of children, and to recommend such changes as may be thought appropriate.

In May 1996, the LRC formed a sub-committee to undertake the above tasks. The sub-committee published an extensive consultation paper on Guardianship and Custody in December 1998 (“Consultation Paper 1998”), addressing the approach of the law and the courts toward custody and access arrangements for children, the use of dispute resolution procedures in family cases, parental child abduction, and the guardianship of children on the death of a parent. It also set out a number of proposals for reform. The Consultation Paper 1998 was eventually accepted by the LRC.

In Chapter One of the LRC’s Report, it says:

“In other common law jurisdictions, there has been a shift away from this legal emphasis on the rights and authority of each of the parents over their children, towards a more child-focused concept of “joint parental responsibility”. This newer approach, which emphasizes the obligations rather than the rights of the parents, and stresses the rights of the children to maintain a continuing relationship with both parents after divorce, is examined in this report as a possible model for Hong Kong’s future legislation in this area.” (para. 1.3)

These other common law jurisdictions are: England and Wales, which has revamped the whole regime on dealing with children in its Children Act 1989; followed by Scotland, in its Children Act 1995; Australia, in its Family Law Reform Act 1995; and New Zealand, in its Care of Children Act 2004. Indeed, in February this year, the English Government has introduced the Children and Family Bill to undertake further law reform by substituting “residence orders” and “contact orders” with “Child Arrangements Orders”.

LRC Report’s Proposed Paradigm Shift

Following the changes in these other jurisdictions, the Report recommends a paradigm shift from the current concept of “custody”, which emphasises the rights and authority of parents, to “parental responsibility”, which enjoins parents of their duty to care for their children and stresses the rights of the children instead.

The Report pointed out that there is currently no statutory definition of “rights and authority”. However, it made an attempt to collate a list for these parental rights, and authority from existing case law and statutes. These rights include the rights to live with the child; to physical possession of the child; to choose the child’s education, religion, surname; to enter into contracts; to act in legal proceedings; to administer the child’s property; to give consent to medical treatment, marriage, adoption and application for passport; to inflict moderate punishment; to appoint testamentary guardian; and to arrange migration.

Contrary to the existing concept of “custody”, “parental responsibility” concerns the duty and responsibility of the parents towards their child, and it respects the right of the child to be cared for until they become of age. Section 3(1) of the English Children Act 1989 defines “parental responsibility” as encompassing “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. The Australian Family Law Reform Act 1995 defines “parental responsibility” in section 61B to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” The Report suggested adopting the definition provided in section 1(1) of the Scottish Children Act 1995, which gives a more detailed description of the responsibilities of a parent.

Guardianship/Custody: Property Rights not Rights of Children

“The original legal concept of parenthood appears to have been that of “guardianship”, a very old concept based more upon the protection of family landholdings than upon the protection of children.” (para. 2.7 of the Report)

As the English Law Commission, in Family Law: Review of Child Law, Guardianship & Custody 1988, said on the law pre-Children Act 1989:

“Our present law has no coherent legal concept of parenthood as such. Historically, guardianship came first. It developed as a means of safeguarding a family’s property and, later, became an instrument for maintaining the authority of the father over his legitimate minor children. Hence he was recognized as their “natural” guardian. While he was alive the mother had no claims as natural guardian and was originally in no better position than a stranger.” (no. 91, para. 2.2)

This old concept of guardianship, deeply rooted in medieval landholding, was later developed into the rights of custody, care and control and access.

The Need for Change

There is a need for the law to move away from the concept of parental rights and authority, to be replaced with the concept of “parental responsibility”. Four reasons support this change.

(1) Confusion and Inadequacy in Present Law

The present law on relocating parental rights and authority is dealt with in a number of overlapping ordinances. The approach of the court to an issue on children may depend on which statutory jurisdiction is invoked, whether it is the Guardianship of Minors Ordinance (Cap. 13), Matrimonial Proceedings and Property Ordinance (Cap. 192), Matrimonial Causes Ordinance (Cap. 179), Separation and Maintenance Orders Ordinance (Cap. 16), Protection of Children and Juveniles Ordinance (Cap. 213) or some other legislation. The Report identified a number of shortcomings in their operation.

(2) A Shift in Societal Values

The relationship between parents and the child has undergone changes due to the change in societal norms and values. Hong Kong’s law relating to parent-child relationship needs to be modernised in order to reflect such changes. As the Report explained:

“In our view, the language of custody orders implies something akin to ownership of a child. The former common law, still accepted in Hong Kong, which gave the custodial parent virtually all rights concerning the upbringing of the child, inevitably leads to more cases being contested in the courts. To say to non-custodial parents that the only right they retain is to have access to the child, and some undefined residual rights which may only be exercised if the non-custodial parent finds out that they are being infringed by the custodial parent, is to invite continuing conflict between the child’s parents.” (para. 10.4)

Lord Fraser in Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1986] AC 112 has also correctly identified the change in parent-child relationship, which needs to be reflected in the law:

“… parental rights to control a child do not exist for the benefit of the parent. They exist for the benefit of the child and they are justified only in so far as they enable the parent to perform his duties towards the child.” (p. 170)

Similarly, Hartmann JA said in PD v KWW CACV 188/2009:

“There was a time when the parents of a child, more particularly the father, had almost absolute authority over that child. That is no longer the case.”

On the divorce of the parents, there was a time when the mother was often trusted with the care for the child and the father to provide for the financial support. The father was left with the right of visitation. Hartmann JA pointed out that “[t]oday, such sexist views are obsolete”.

The concept of custody arguably is an emotive label which may lead to fights between parents in order to “win”. It is time that it be replaced by the concept of parental responsibility in law, and coupled with appropriate education, a change in attitudes and culture to redirect parents’ mind set on the need to care for their children’s future welfare.

(3) Obligations under International Treaties

International treaties concerning children applicable to Hong Kong require changes to be made to our child law as well. Article 19(4) of the Hong Kong Bill of Rights (Cap. 383) (equivalent to Article 23 of the International Covenant on Civil and Political Rights (“ICCPR”)) acknowledges that:

“In the case of [marriage] dissolution, provision shall be made for the necessary protection of any children.”

And Article 20 of the Bill (equivalent to Article 24 of the ICCPR) requires that every child:

“shall have … the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.”

The United Nations Convention on the Rights of the Child 1989 (“UNCRC”) stresses the rights of children for their protection and to maintain personal relations and direct contact with both parents on a regular basis if a child is separated from one or both parents (Article 9(3) of the UNCRC). Article 18(1) of the UNCRC places an emphasis on the responsibilities of the parents, and requires that:

“States Parties … use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents … have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.”

The UNCRC requires State Parties to ensure that children have the right to express their views freely in all matters affecting them, and that they have the opportunity to be heard in any judicial and administrative proceedings affecting them (Article 12(2) of the UNCRC). However, our current law emphasises the rights of the parents on custody, care and control, and access, and does little to remind the parties of their responsibility towards the child.

(4) Judges’ Views on Need for Change

On many occasions, judges have urged for law reform relating to children as proposed by the Report. Hartmann JA in his judgment in PD v KWW CACV 188/2009 said:

“Other common law jurisdictions – for example, Australia – have made legislative changes to similar effect, that is, where appropriate, to ensure the continued active involvement of both parents in the upbringing of the child, or children, of their marriage. The Hong Kong Law Reform Commission Report on Child Custody and Access of 2005 recommended changes in line with the Children Act 1989 but regrettably, to date at least, little appears to have been done to give the Commission’s recommendations legislative form.” (paras. 50 and 51)

Lam J (as he then was) came to the same conclusion in the same judgment:

“Likewise, as observed by my Lord, the recommendations of our Law Reform Commission in 2005 regarding Child Custody and Access have not been taken forward. Had such recommendations been implemented, the respective rights and responsibilities of the parents towards their children would be more clearly and specifically defined. Judging from the submissions advanced by the parties in this case, I cannot help from observing that with the implementation of such reforms, appeals like the present one could have been avoided. Speaking for myself, I would like to take this opportunity to urge the administration to make some progress in these directions.” (paras. 80 – 81)

P. Cheung JA, also supported the change and said in SMM v TWM 209/2009 that:

“It should be noted that the Hong Kong Law Reform Commission Report on Child Custody and Access (7th March 2005) has recommended changes to the GMO, by, among other things, replacing custody orders with residence and contact orders. There has been no implementation of the recommendation yet. In my view the Administration should make a serious effort in implementing the recommendations by legislation soon.” (para. 29)

We understand that most Family Court Judges support the reform proposed in the Report. As Judge Melloy in TRR v RAR [2010] HKEC 1351 said:

“The father has said that joint custody is the normal or usual order in our courts. I do not agree. Rightly or wrongly it is one option open to both parents. It is fair to say though that the Law Reform Commission report on Child Custody and Access dated March 2005 challenges this. … Unfortunately the Law Reform Commission’s recommendations have still to be acted upon.” (para. 17)

Joint Custody v Parental Responsibility?

In spite of the four reasons above indicating the need for change, not much has been done.

Ironically, the LWB’s Consultation now appears to be advocating something different: the use of joint custody as a means of implementing “parental responsibility”.

In support of this approach, the LWB’s Consultation made reference to the experience in Singapore (like Hong Kong, the majority of its citizens are ethnically Chinese). Singapore decided not to introduce the new concept of “parental responsibility” after reviewing their own law. In its Attorney-General paper, it recommended “that the concept of ‘joint parental responsibility’ be further developed by the courts under the existing custody arrangement. In the case of CX v CY [2005] SGCA 37, the court suggested that the normal order should be joint custody or no custody arrangement, and sole custody would be made where there is child abuse or where cooperation between the parents is impossible.

The LWB’s Consultation advocating for the greater use of joint custody also states that joint custody orders have recently been more commonly granted, reflecting a shift by the courts towards the concept “joint parental responsibility”. The LWB’s Consultation gives no figures to support this assumption. Against this background, Judge Melloy collated figures of her court. At the Children’s Issues Forum held at the end of August 2012 at the University of Hong Kong, she confirmed that the assumption of the Government was incorrect – joint custody orders are not commonly made. In the period of January to December 2011, 72% of orders made were sole custody orders, as compared to 28% for joint custody orders.

Conclusion

The LRC Report has its genesis back in April 1995, and it has now been nearly eight years since the publication of the Report. Yet, the main thrust of its recommendations has yet to be implemented.

The LWB’s Consultation Paper highlighted how England and Wales, and Australia are further reforming their law based on the concept of “parental responsibility”. This does not necessary mean that the concept itself is unacceptable, although implementing it requires a commitment to make it work.

It would be unrealistic to expect that the concept of “parental responsibility” is the way to perfect the current family law justice system. It is not a panacea to all existing problems. However, Hong Kong has the benefit of learning from other jurisdictions; it can draw from relevant overseas experiences for the benefit of Hong Kong children.

The concept of “parental responsibility”, with its emphasis on the rights of the children, as opposed to the rights of the parents, must be the way ahead. We urge that the government not throw the baby out with the bathwater. n

 

By

Athena Liu, Associate Professor Faculty of Law, The University of Hong Kong

Dennis Ho, Partner Ho & Ip

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