Oscar Wilde – ‘ The Picture of Dorian Gray’
In a contested case involving child custody and access – a brief look at the law applied in almost any of the Family Court judgments will find reference to the connecting statutory provisions as set out below. It is generally agreed by judges and the legal profession that reform of the confusing array of law in this area is long overdue – these are set out in great detail in the Law Reform Commission Report on Child Custody and Access March 2005. This report is by now well read and understood by all family law practitioners and judges. It is the place to start for anyone wishing to understand Children’s Law in Hong Kong.
However it is important to note that the statutory provisions affecting children differ depending on whether the parents are divorcing or are unmarried or not getting divorced. For example although section 3 Guardianship of Minors Ordinance (Cap 13) sets out the guiding principles – as amended in 2012 ‘the best interests’ of the minor (i.e a child under 18, see s. 3 IGCO (Cap 1) shall be ‘the first and paramount consideration’ – that the courts must apply, this is the only ordinance that is open to unmarried parents (or non-divorcing) parents to argue any disputes in relation to their children.
Until government completes its consultation exercise on reform the following statutory provisions apply:
First, Section 19 Matrimonial Property and Proceedings Ordinance (Cap 192) gives jurisdiction to the courts in respect of divorce, nullity of marriage or judicial separation. It grants the court wide discretion to make and to vary or discharge – s. 19(6) – orders in relation to the custody and education of a ‘child of the family’ and/or any other child (eg. stepchild) who has been treated as such by the parties – (see Section 2). This includes orders for access by the child to the non-resident parent. Such orders can be made at any time before or after decree nisi or final decree absolute.
s. 19(1) The court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18 –
(a) in any proceedings for divorce, nullity of marriage or judicial separation, before, by or after the final decree;
(b) where such proceedings are dismissed after the beginning of the trial, either forthwith or within a reasonable period after the dismissal;and in any case in which the court has power by virtue of this subsection to make an order in respect of a child it may instead, if it thinks fit, direct that proper proceedings be taken for making the child a ward of court.
Second, this wider discretion is only fettered by section 18 which prohibits any final order being made (decree absolute) until the court is satisfied that clear arrangements for the children have been made.
Section 18(1) the court shall not make absolute a decree of divorce or of nullity of marriage, or make a decree of judicial separation, unless the court, by order, has declared that it is satisfied –
(a) that for the purposes of this section there are no children of the family to whom this section applies; or
(b) that the only children who are or may be children of the family to whom this section applies are the children named in the order and that (i) arrangements for the welfare of every child so named have been made and are satisfactory or are the best that can be devised in the circumstances; or (ii) it is impracticable for the party or parties appearing before the court to make any such arrangements; or
(c) that there are circumstances making it desirable that the decree should be made absolute or should be made, as the case may be, without delay notwithstanding that there are or may be children of the family to whom this section applies and that the court is unable to make a declaration in accordance with paragraph (b).
(2) The court shall not make an order declaring that it is satisfied as mentioned in subsection (1)(c) unless it has obtained a satisfactory undertaking from either or both of the parties to bring the question of the arrangements for the children named in the order before the court within a specified time.
(3) If the court makes absolute a decree nisi of divorce or of nullity of marriage, or makes a decree of judicial separation, without having made an order under subsection (1) the decree shall be void but, if such an order was made, no person shall be entitled to challenge the validity of the decree on the ground that the conditions prescribed by subsections (1) and (2) were not fulfilled.
(4) If the court refuses to make an order under subsection (1) in any proceedings for divorce, nullity of marriage or judicial separation, it shall, on application by either party to the proceedings, make an order declaring that it is not satisfied as mentioned in that subsection.
(5) This section applies to the following children of the family, that is to say (a) any minor child of the family who at the date of the order under subsection (1) is (i) under the age of sixteen, or (ii) receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not he is also in gainful employment; and (b) any other child of the family to whom the court by an order under that subsection directs that this section shall apply;and the court may give such a direction if it is of opinion that there are special circumstances which make it desirable in the interests of the child that this section should apply to it.
(6) In this section “welfare” (福利), in relation to a child, includes the custody and education of the child and financial provision for him.
Guiding Principles & Unmarried Parents
Guardianship of Minors Ordinance (Cap 13)
Section 3 (1) In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property –
(a) in any proceedings before any court (whether or not a court as defined in section 2) the court – (i) shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to (A) the views of the minor [see here for example] if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and (B) any material information including any report of the Director of Social Welfare available to the court at the hearing; and (ii) shall not take into consideration whether, from any other point of view, the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father;
(b) except where paragraph (c) applies, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other;
(c) where the minor is illegitimate – (i) a mother shall have the same rights and authority as she would have by virtue of paragraph (b) if the minor were legitimate; (ii) a father shall only have such rights and authority, if any, as may have been ordered by a court on an application brought by the father under paragraph (d);
(d) the Court of First Instance or a judge of the District Court may, on application, where it is satisfied that the applicant is the father of an illegitimate child, order that the applicant shall have some or all of the rights and authority that the law would allow him as father if the minor were legitimate.
(2) Subsection (1)(a) shall have effect as regards any application under subsection (1)(d).