Child Custody and Access
The Law Reform Commission published its report on Child Custody and Access on 7 March 2005. The main focus of the report's 72 recommendations is the introduction of a new "joint parental responsibility model" into Hong Kong's family law. This new approach aims to make it easier for both parents to maintain an active involvement in the lives of their children after they divorce.
Under the existing law, the parent-child relationship is defined in terms of the "rights" and "authority" of each parent towards their child. When parents divorce, the role of the court is seen as being to divide up this bundle of rights and authority between them. In the past, the courts would often award one parent sole custody of the child, with all the decision-making power that that implied, while the other parent's involvement was limited to a right of access. This often resulted in the contact between the child and the non-custodial parent dwindling as time went by. The courts in Hong Kong are now making more orders for "joint custody," recognising the importance of maintaining the direct involvement of both parents in the lives of their children as far as possible.
In a number of overseas jurisdictions, including England, Scotland and Australia, former child custody laws similar to Hong Kong's have been replaced with laws reflecting the joint parental responsibility model. These reforms include the introduction of a range of new court orders, to sweep away the old "custody" and "access" terminology in family proceedings. The Commission considers that this change in terminology and new range of court orders should be introduced in Hong Kong.
The report also recommends the removal of the current limitation on the rights of interested third parties, such as close relatives, to apply for court orders affecting children.
Other important recommendations in the report include:
- providing increased powers and new guidelines to the courts to deal with custody and access cases which involve domestic violence
- providing better mechanisms for the views of children to be taken into account in family proceedings which affect them
- amending the legislation governing care and protection proceedings so that children's rights can be better protected
The report also recommends that the minimum age for marriage without parental consent should be reduced from 21 to 18 years.
The report on Child Custody and Access is the final in a series of four reports under the Commission's reference on guardianship and custody of children. The three earlier reports were: Guardianship of Children (January 2002), International Parental Child Abduction (April 2002) and The Family Dispute Resolution Process (March 2003). These reports follow extensive research in this area by the Sub-committee on Guardianship and Custody, chaired by Hon Ms Miriam Lau, GBS, JP, which issued a consultation paper on Guardianship and Custody in December 1998.
|Press Release (PDF) (MS Word)|
|Executive Summary (PDF) (MS Word)|
|Report (PDF) (MS Word)|