On 25 November 2015, the Administration launched a four-month public consultation to gauge the public views on the draft Children Proceedings (Parental Responsibility) Bill (the “Draft Bill”) to implement the recommendations made by the Law Reform Commission (“LRC”) in its Report on Child Custody and Access (the “Report”).
This article summarises key changes proposed in the Draft Bill, evaluates the experience of other common law countries and suggests further amendments that could make the Draft Bill more suitable to Hong Kong.
The Draft Bill
The Joint Parental Responsibility Model (the “Model”) may be new to Hong Kong but it is not new. Between 1989 and 2005, the UK, Scotland, Australia and New Zealand introduced similar regimes through legislative reforms.
The Model (which is different from the custody model) emphasises both parents’ continued involvement in their children’s lives even after divorce. The major change is shifting the current focus from parents’ rights and authorities to parental responsibility and the rights of the child.
The Draft Bill proposes to abolish the current custody and access orders, and replace them with a new range of orders/rights concerning the upbringing of children, such as:
- Child Arrangement Order: encompasses and regulates arrangements relating to the person (not necessarily the parents or the guardian of the child) with whom a child is to live, spend time or have contact with (Cl. 8(3) & (5) and 28(a));
- Specific Issue Order: give directions for the purpose of determining a specific question which has or may arise, (ie, schooling), in connection with any aspect of parental responsibility for a child (Cl. 28(c));
- Prohibited Steps Order: specifies that certain step(s) which normally can be taken by a parent in meeting his/her parental responsibility for the child shall not be taken by any person without the consent of the Court (Cl. 28(b));
- Right of the Third Party: the Draft Bill removes the limitation (ie, to apply for leave) on the third parties (such as grandparents or other relatives) to apply for court orders (including a maintenance order against either or both parents) in relation to the child as long as the child has been living with the Third Party for a total of one year (365 days) out of the previous three years; (Cl. 29(4)(b) and Cl. 33); and
- Views of the Child: the Draft Bill specifies that the views of the child concerned must be taken into consideration when the Court determines what is in the best interest of the child (Cl. 3(2)) and how the child’s views should be ascertained by the Court (Cl. 60).
Further, the Draft Bill introduces various statutory lists:
- Court’s checklist of factors when determining what is in the best interest of the child (Cl. 3(1) & (2));
- Parental responsibilities and rights (Cl. 5(2) & (3)); and
- Major decisions concerning the child’s upbringing that would require express and written consent or notifications to the other parent (Cl. 10(2) & (5)).
Last but not least, this new range of orders will be available in any “children proceedings” where a question arises as to the welfare of a child (Cl. 28(3)).
The Common Law Jurisdictions’ Experience
No one expects the Draft Bill to be implemented without further amendments. As such, studying the experience of other common law jurisdictions should provide valuable insights.
The Hon. Diana Bryant AO, Chief Justice of the Family Court of Australia, presented a paper in Hong Kong’s Third Children’s Issues Forum 2015 discussing Australia’s experiences when the Model was first introduced in Australia in 1995 and when it was subsequently amended in 2003 and 2006. The Draft Bill is very similar to Australia’s 2003 regime.
Some of the difficulties faced when Australia implemented the Model, include:
- Failure in changing the mind-set of parents: studies were carried out in Australia in 2000 and 2003, which showed that “the presumption of shared parenting under the law … is not reflected in what is happening either in the courts or in the community and behaviour has not changed … there is still a common winner/loser scenario.”
- Increase in court disputes: studies showed that since the reforms, there were increases in court applications in relation to child orders, and specific issue orders in Australia. The studies indicated that there was uncertainty and confusion under the Model as to who had the responsibility for the children, which may have given rise to the unrealistic expectations of a non-resident parent (mainly fathers). Ultimately, it led to conflicts between parents and resulted in more court litigations.
- Abuse by trouble-making parents: In the same studies, the evidence indicated that the implementation of the Model in Australia created a greater scope for an abusive non-resident parent to harass or interfere with the life of the child’s primary caregiver by challenging his/her decisions and choices. It might become a new tool of control for abusive non-resident parents and create constant disputes and an endless cycle of court orders.
Accordingly, the 2006 amendments introduced a rebuttable presumption that equal shared parental responsibility is in a child’s best interest. However, the presumption could be rebutted if it was not in the child’s best interest for the parent to have equal shared parental responsibility. The rebuttable presumption, one could argue, is very similar if not identical to the custody orders.
As discussed in the Hon. Diana Bryant’s paper, the 2006 reforms had failed to fully achieve their aims and even led to the inadequate protection of children. More importantly, many divorced parents and even professionals still failed to understand the distinction between equal shared parental responsibility and equal shared time with the child. Against this background, further amendments were introduced in 2011.
After the further amendments, recent research concluded that “subtle shifts” had occurred in the parenting arrangements. While more professionals indicated that they had a more positive view of the amendments, many also indicated that the confusion that arose after the 2006 reforms, still remained, especially with unrepresented parents.
In addition to looking at the experience of western common law countries, Hong Kong has also looked at Singapore’s family legislation.
The composition of Hong Kong’s population is very similar to Singapore’s – both are also especially influenced by Confucianism. Both societies also have similar family values: parents have the authority and rights over matters involving their children but also the responsibility of bringing up and taking care of their children in the best way they can.
In short, a paper published by the Attorney-General’s Chambers of Singapore in 2005 acknowledged that the Model should be further developed by the courts under the existing custody laws but doubted that a semantic change in legislative expressions might help bring about a cultural and psychological change in parents. Further, it considered that although the concept of custody might have its origin in property and parental rights over children in the western world, it was not understood in that sense in Singapore.
The Chambers stated that it believed and observed that parents fought for the custody of a child because of their strong emotional bonds to the child. The custody battle could be seen as a contest for the “right” to continue to be a parent to the child, rather than a contest for “ownership” over the child.
Further Proposed Amendments to the Hong Kong Model
During the consultation in 2011, many stakeholders supported or did not dispute the concept of the Model. However, Australia’s experience with the Model did raise some real concerns about how such a law reform should be conducted in Hong Kong.
Given that most of the Hong Kong citizens are ethnically Chinese, they likely have a set of family values that are similar to Singaporean families. Therefore, Hong Kong parents should not have too much difficulty in accepting and understanding their responsibilities under the Model. However, one key problem that remains is how to encourage them to work together in the best interest of their children after divorce – a problem which cannot be addressed by simply introducing the Model through legislation.
As observed, many parents may already feel very bitter fighting over financial matters between themselves; it could be very difficult for them to even talk to each other outside of court. If the Draft Bill totally abolishes the custody concept, like the Australian 2003 Act, it could create even more litigation and the already burdened Family Court would have even less resources and time to find the best solutions for children.
On the other hand, given the highly sensitive political situation in Hong Kong, if we adopt the Singapore model and allow the Judiciary to develop the system on its own, some may then argue that it is a fundamental breach of the principle of Separation of Powers, allowing the Judiciary to step into a legislative role.
In such a case, the Administration should consider adding a rebuttal provision, similar to the one introduced in 2006 by Australia, to the Draft Bill (eg, a middle ground between the Australian and Singaporean models).
In this way, the Court can observe and decide whether divorced couples can work together under the Model or whether it is more appropriate to use the Custody Model and issue custody orders. By adopting this approach, the Court would then have enough flexibility to handle different cases and give suitable orders in the best interest of the children.
Better yet, the legislation should make it mandatory for all divorced parents to go through an information session about the Model and the Custody Model. Parents are likely the ones who know what is best for their situation, so it may be preferable to let them decide which route they would like the Court to adopt in their case.
Enforcement of Maintenance Orders
One key issue that still has not been addressed in the Draft Bill that concerns many legal practitioners and divorced parents is the collection of maintenance, which was raised and addressed by the LRC in the Report (Recommendation 14).
In addition to refining the collection of the maintenance order in the legislation (Cl. 40–50), the Administration should consider establishing an agency similar to those established in the UK, Canada and the US, which collects and enforces maintenance orders on behalf of the children, the divorced spouse and/or the Third Party.
The Draft Bill does address and attempt to resolve some of the problems currently facing the Family Court, legal professionals, litigants and most importantly, children. However, after evaluating the experience of other jurisdictions, it is clear that adequate resources must be devoted to supporting services, and that the education of the public and legal professionals about the Model is extremely important to avoid subsequent misunderstandings and disappointment. Hopefully, it can be passed without much further delay in the Legislative Council, as we have already suffered a more than 10-year delay since the LRC’s Report.