Recent Judicial Developments on Sole and Joint Custody

In PD v KWW [2010] 4 HKLRD 191 Hartmann JA in the Court of Appeal said: “A parent having sole custody had the authority to make the final decision on such matters as the child’s education, religious upbringing and extracurricular studies, but only after consulting and giving full and rational consideration to the other parent’s views. The non-custodial parent had no power of veto, but could call upon the court to decide any disagreement”.

This narrows the gap between a sole and joint custody order. Thus, as Lam J said in the same case, ‘the line between sole custody and joint custody is a thin one’. Effectively, it changes the level playing field. In theory, it reduces the winner-takes-all approach, and hopefully it means that less is at stake (and there is less reason to fight). However, the downside is that the rebalancing may be perceived as an opportunity for the non-custodial party to assert his or her right to be consulted, and to have his or her views given full and rational consideration.

Sole Custody Order

A spouse who has been granted custody on divorce of a child is sometimes called the custodial parent. The custodial parent is sometimes also granted care and control. Where the court grants sole custody to one spouse (with care and control), the court may also grant access to the non-custodial parent. Access means contact with the child, e.g., staying access during weekends and holidays.

What does a sole custody order entail? At common law, an order for custody entails the right to exercise full parental rights and authority. Where a sole custody order is made (without any restrictions), parental rights and authority are vested in one to the exclusion of the other. The custodial parent has a duty to ensure, protect and promote the best interests of the child. Apart from day-to-day care, the custodial parent is also empowered to make major decisions concerning the child. There is no definition (or an exhaustive list) of what amount to major decisions, but it probably includes matters such as education, religion, and major medical treatment. Lawyers thus may think that the effect of a sole custody order is to transfer most, if not all, parental rights and authority to the custodial parent exclusively. The non-custodial parent retains other rights qua parent (or guardian) under other statutory provisions, eg the right to succeed on the child’s intestacy, the right as a guardian on the death of the other parent, the right to appoint a testamentary guardian, and to veto adoption.

However, in England, before the Children Act 1989, this meaning of a custody order was complicated by Dipper v Dipper [1980] 2 All ER 722, where Ormrod LJ held obiter that:

“It used to be considered that the parent having custody had the right to control the children’s education, and in the past their religion. This is a misunderstanding. Neither parent has any pre-emptive right over the other… To suggest that a parent with custody dominates the situation so far as education or any other serious matter is concerned is quite wrong” (at p. 731, author’s emphasis)

Cumming Bruce LJ further said that a non-custodial parent was entitled “to know and be consulted about the future education of the child and any other major matters”. (at p.733)

Joint Custody Order

Joint custody, as opposed to sole custody, refers to where custody is given to both parents, and care and control to one party. The original rationale for a joint custody order (as opposed to a sole custody order) was that instead of one party being given the right to decide important matters affecting the upbringing of the child, both parties had that right.

A joint custody order symbolises that divorced or separated parents continue to play a role in the child’s upbringing, and neither is excluded. In Jussa v Jussa [1972] 2 All ER 600, the father, an Indian Moslem and a teacher by profession, married an English Christian lady. When the parties separated, the court granted custody to the wife with reasonable access to the father. The father appealed against the custody order, although he conceded that she should have care and control. The Court of Appeal granted a joint custody order, with care and control to the mother:

“The joint order for custody with care and control to one of the two parents is, perhaps, of rather more recent origin . . . For my part, I recognise that a joint order for custody with care and control to one parent only is an order which should only be made where there is a reasonable prospect that the parties will cooperate. Where you have a case such as the present case, in which the father and the mother are both well qualified to give affection and wise guidance to the children for whom they are responsible, and where they appear to be of such calibre that they are likely to cooperate sensibly over the child for whom both of them feel such affection… it seems to me that there can be no real objection to an order for joint custody.” (at p. 603 per Wrangham J)

Narrowing the Gap Between Sole and Joint Custody

In PD v KWW [2010] 4 HKLRD 191 Hartmann JA said:

“It is to be emphasized in the strongest terms that if one parent only is given custody, that parent is not thereby given an absolute and independent authority to act without further reference to the non-custodial parent. Any such potential misunderstanding was quashed in Dipper v Dipper…” (at para 36)

This statement (together with the one quoted above) highlights the narrow difference between a sole and joint custody order.

How is a non-custodial parent’s right to be consulted enforced?

To facilitate a non-custodial parent continuing to play a role (ie participate in making major decisions) in a child’s upbringing, an obligation is now imposed on the custodial parent to consult the other.

How consultation may be enforced can be seen in Lo Chun Wing-yee v Lo Pong-hing [1985] 2 HKC 647. In that case, a consent order for joint custody with the mother having care and control was made. Conflicts then arose between the parties regarding the child’s upbringing. The father was content that the mother continued to have care and control, and the question was whether the mother should be given sole custody to the exclusion of the father. It was held that the welfare of the child would best be served by reinstating one single authority in her daily life. However, the court adopted what Cumming Bruce LJ said in Dipper. Liu J granted sole custody to the mother on condition that she undertook:

“To give a quarterly report to the father under three headings of health, education and activity including the child’s out-of-jurisdiction visits, and in such a quarterly report, information under each head should not be less than five sentences.” (at p. 651)

In Lo Chun Wing-yee, the court was of the view that a sole custody order would not bring about any severance of link between the father and the child. If the father disagreed with a course of action proposed or decided by the mother, he would have a right to resort to the court for guidance.

Today, in light of Hartmann JA’s statement, a non-custodial parent who wishes to secure his or her right to be consulted may seek to have conditions imposed on a sole custody order. These conditions would require the custodial parent to keep him or her informed on specific major issues concerning the child’s development, such that the non-custodial parent has a chance to participate in decision-making.

Full and rational consideration of the non-custodial parent’s view?

Not only is there now an obligation to consult, a custodial parent must also give full and rational consideration to the non-custodial parent’s views. How this latter duty is to be enforced remains to be seen.

It should be remembered that the non-custodial parent has no veto power. In view of this fact, the court in any judicial proceedings will need to distinguish between a mere request that one’s view be given “full and rational consideration”, as opposed to an actual power of veto.

Arguably, therefore, the duty of giving “full and rational consideration” may be discharged in the same way as an administrative power. That is, so long as the decision is not “Wednesbury unreasonable” and has taken into account the non-custodial parent’s view, the court should be slow to interfere.

The importance of a single authority

In some cases, it is important for there to be a single authority in a child’s life. Sole custody is appropriate in such a case. Joint custody may work in cases where the parties are able to cooperate. Where, however, the parties cannot cooperate, the need to consult and give full and rational consideration to the non-custodial parent’s views is likely to lock them in bitter disputes. In such cases, it may be more appropriate to restore a single authority in a child’s life.

Joint Parental Responsibility?

There is a trend in Hong Kong courts recognizing the benefit of parents continuing to play their role as parents even after divorce. In 2005, the Law Reform Commission of Hong Kong published the Report on Child Custody and Access (the “Report”). The Report recommended, inter alia, the introduction of the concept of parental responsibility. More recently, in 2011, the Labour and Welfare Bureau issued a consultation paper entitled “Custody and Access: Whether to Implement the “Joint Parental Responsibility” Model by Legislative Means” (the “Consultation Paper”).

Although both the Report and the Consultation Paper considered custody and access, the latter appears to be hinting that

“the concept of ‘joint parental responsibility’ could be further developed and promoted by the courts under the existing legislative framework without legislative changes. Joint custody orders could be more frequently granted unless it was likely that the divorced parents could not cooperate in good faith on issues relating to the upbringing of their children.” (at para 4.9)

The increase in the number of joint custody orders made is a reflection of the fact that more parents are willing to cooperate on parenting post-divorce. This can only be good for the children. However, this is only a small aspect of the recommendations made in the Report, which seeks a change of the fundamental principles involved in dealing with children, not only when the parents are separating, but whenever an issue arises that concerns children.

Recommendations in the Report also seek to shift the emphasis from the rights of the parents to those of the children, as recognised by international treaties applicable to Hong Kong. It is hoped that the implementation of these recommendations will not be further delayed.
 

By

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

Dennis Ho, Partner Ho & Ip

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