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THE LAW REFORM COMMISSION OF HONG KONG

The Law Reform Commission of Hong Kong

Report

Child Custody and Access

This report can be found on the Internet at:

March 2005

The Law Reform Commission was established by the Executive Council in January 1980. The Commission considers such reforms of the laws of Hong Kong as may be referred to it by the Secretary for Justice or the Chief Justice.

The members of the Commission at present are:

The Hon Ms Elsie Leung Oi‑Sie, GBM, JP,

Secretary for Justice (Chairman)

The Hon Mr Justice Andrew Li, Chief Justice

Mr Tony Yen, SBS, JP, Law Draftsman

Dr John Bacon-Shone

The Hon Mr Justice Bokhary, PJ

Professor Albert Chen, JP

Mr Anthony Chow, SBS, JP

Professor Y K Fan, JP

Mr Alan Hoo, SBS, SC, JP

The Hon Mrs Sophie Leung, SBS, JP

Professor Mike McConville

Mr Benjamin Yu, SC

The Secretary of the Commission is Mr Stuart M I Stoker and its offices are at:

20/F Harcourt House

39 Gloucester Road

Wanchai

Hong Kong

Telephone: 2528 0472

Fax: 2865 2902

E‑mail: hklrc@hkreform.gov.hk

Website:

The Law Reform Commission

of Hong Kong

Report

Child Custody and Access

________________________________

CONTENTS

Chapter

Page

Preface

1

1. Background to the law in this area

4

Introduction

4

The wider social context of divorce

5

Divorce as a complex process

5

Stages of divorce

6

Impact of divorce on children

6

Effect of access on child's adjustment to divorce

8

Long term harm caused by divorce

9

Conclusions from research

10

The changing legal paradigm in child custody and access

11

Children's rights

11

Changing family structures

12

Joint custody

12

The wider legal context of divorce

13

The role of the State

13

Hong Kong Bill of Rights Ordinance (Cap 383)

14

United Nations Convention on the Rights of the Child

15

2. The current law and practice in Hong Kong – an overview

17

Introduction

17

The legal parent-child relationship

17

"Child" or "minor"

18

"Parent" or "guardian"

18

Parental "rights and authority"

19

What is meant by 'custody' and 'access'

21

Custody

21

Access

22

Sole custody order

23

Split orders

24

Joint custody

24

The court's approach to custody and access – the welfare of the child

25

The welfare principle

25

Factors in determining the welfare of the child

27

First and paramount consideration

31

Judicial discretion

32

The divorce process in Hong Kong

33

Relevant legislation

33

Establishing the relevant 'grounds' for divorce

34

Procedural steps in the divorce process

36

Recent developments in divorce procedure

39

3. The Current law and practice in Hong Kong – relevant legislation

40

Introduction

40

Guardianship of Minors Ordinance (Cap 13)

41

Applications for custody and access

41

Care order

42

Supervision order

43

Guardianship

43

Criticisms of the Guardianship of Minors Ordinance (Cap 13)

45

Matrimonial Causes Ordinance (Cap 179)

47

Care order

47

Supervision order

48

Criticisms of the Matrimonial Causes Ordinance (Cap 179)

48

Matrimonial Causes Rules (Cap 179)

49

Applications by third parties

50

Powers of the Director of Social Welfare

51

Social welfare officer's report

51

Proceedings in other courts

51

Separate representation

51

Criticisms of the Matrimonial Causes Rules (Cap 179)

52

Matrimonial Proceedings and Property Ordinance (Cap 192)

53

Arrangements for the children

53

Custody orders

54

Child of the family

55

Age

55

Unfit parent

56

Criticisms of Matrimonial Proceedings and Property Ordinance (Cap 192)

56

Separation and Maintenance Orders Ordinance (Cap 16)

57

Application for orders

57

Adultery

58

Variation or discharge of orders

58

Criticisms of the Separation and Maintenance Orders Ordinance (Cap 16)

58

Protection of Children and Juveniles Ordinance (Cap 213)

59

Powers in relation to a child in need of care or protection

60

Access to children in care

61

Child assessment

62

Criticisms of Protection of Children and Juveniles Ordinance (Cap 213)

62

Other relevant legislation

65

Domestic Violence Ordinance (Cap 189)

65

Adoption Ordinance (Cap 290)

65

4. The current law and practice in Hong Kong – recent developments in family law

67

Introduction

67

The use of mediation in family proceedings

67

Pilot study on the use of mediation in the Family Court

68

Law Reform Commission report on the family dispute resolution process

69

Further developments relating to the court process in family matters

71

Expansion of the special procedure divorce process

71

Reform of ancillary relief procedures in matrimonial proceedings

72

Other reform proposals relating to child custody and access arrangements

73

Law Reform Commission report on guardianship of children

73

Law Reform Commission report on international parental child abduction

75

5. Comparative Law: England and Wales

77

Introduction

77

Position prior to the Children Act 1989

77

The aims of the Children Act 1989

79

The general principle of parental responsibility

80

Meaning and scope of parental responsibility

80

Acquisition of parental responsibility

81

The implications of parental responsibility

85

The general principle of the welfare of the child

88

The welfare principle

88

Duty to approve arrangements for the children

90

The non-intervention principle

91

Welfare checklist

93

Welfare reports

95

Delay

95

Orders relating to children in family proceedings

96

Introduction

96

Residence order

98

Contact order

99

Specific issue order

100

Prohibited steps order

100

Supplementary provisions

101

Relevant child

102

Circumstances in which orders may be made

103

Persons who can apply

104

Child as a party

106

Enforcement of section 8 orders

107

Other powers of the court

109

Jurisdiction

109

Supervision orders

109

Participation of the child

111

Wardship

114

Privacy

116

Publicity

117

Developments since implementation of the 1989 Act

117

Overview

117

Adoption and Children Act 2002

118

Contact orders

118

Child protection generally

121

Delay

122

CAFCASS

123

Family Law Protocol

123

Impact of the Human Rights Act 1998

124

6. Comparative Law: Scotland

125

Introduction

125

Overview of the Children (Scotland) Act 1995

125

The general principle of parental responsibility

126

Parental responsibilities

126

Parental rights

128

Acquisition of parental responsibility

130

The implications of parental responsibilities and rights

131

The general principle of the welfare of the child

133

Duty to approve arrangements

133

The non-intervention principle

134

Welfare checklist

135

Delay

136

Orders relating to children in family proceedings

136

Introduction

136

Effect of orders

139

Persons who can apply

140

Other powers of the court

140

Participation of the child

140

Developments since implementation of the 1995 Act

144

Parental responsibilities and rights of unmarried fathers and step-parents

144

7. Comparative Law: Australia

146

Introduction

146

Background to the 1995 reforms

147

The position under the former law

147

Impact of the UK Children Act 1989

148

"Welfare" and "best interests"

148

Parental responsibility

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