Children Custody Care & Control

‘All happy families are alike; each unhappy family is unhappy in its own way’
Leo Tolstoy: Anna Karenina

General Principles – The Law of Child Custody, Care & Control

There is a great deal of academic commentary that has been written – and will be written – on this important area of the law. Although already a little dated, the shortest route to understanding the various issues arising and the need for reform of the law relating to children in Hong Kong, may be found in the Hong Kong Law Reform Commission’s by now well thumbed Report on Child Custody and Access – March 2005. The most recent commentary on this important issue is by Dr. Athena Liu and Mr Dennis Ho (family law solicitor) in the Hong Kong Lawyer (July 2013).

Anyone still unsure why reform is necessary need look no further than the title of the this important report  – taken from the antediluvian words of the statue. ‘Custody’ is guardianship of a minor awarded by a court of law – it is also the condition of being held by the police. To many in 2013 the vocabulary of the Guardianship of Minors Ordinance (Cap 13) – for example the ‘right of access’ is not only preposterous, for example section 4(3) ‘…  the right of access to the minor of his or her father or mother.’ – or section 10(1)(b) ‘the right of access to the minor of either of his or her parents’ – the very grammar of the text is at odds with both the ‘best interests of the child’ and the now commonly expressed views in the case law that it is the right of the child to have ‘access’ to the parent and not the other way around.

It is not merely a case of the laboured search for the mots juste – see for example SKP v Y, ITT (Legal Terminology to be used in Child/ren’s Arrangements) FCMC 17772 / 2011. Alternative statutory language such a ‘residence’ and ‘contact’ and ‘parental responsibility’ have been used since the 1980s in the UK and elsewhere.  Indeed, the UK government is already moving ahead with reform of the Children Act 1989 (and thus many of those conclusions reached in 2005 by the Hong Kong Law Reform Commission) and replacing the current concepts of ‘residence’ and ‘contact’ with ‘Child Arrangement Orders’ under the Children and Families Bill currently before Parliament. It is not a case of Hong Kong slavishly following developments in the UK or Australia and elsewhere – the fact is the Hong Kong government do not appear to be following developments elsewhere at all. The plain fact is other Common Law jurisdictions are responding to the latest research and experience of the courts – see UK Family Justice Review – whilst the Hong Kong government is doing precisely nothing – leaving the judiciary to ‘tinker’ around the edges of outmoded statutory provision, for example, with the welcome but inadequate Practice Direction 15.13.

In 2013 the continued use of terms like ‘illegitimate’ as a description of a baby must be regarded as unnecessary and unjustified. Words such as ‘custody’ ‘control’ and ‘access’ – pejorative terms even in the 1970s – ought to have no place in modern child law. Indeed most fathers would surely be surprised to learn that in Hong Kong, by Part 5, section 21 a father who is not married to the mother at the time of the birth requires a court order either under section 10(1) or section 3(1)(d) merely in order to be ‘treated as the father of the minor’ under the legislation.

Despite a good deal of pressure from the legal profession and the judiciary, very little has been done by government to implement the LRC’s proposals. In December 2011 the Labour & Welfare Bureau issued a Consultation Paper on the March 2005 Report see Government Child Consultation Paper December 2011 (pdf). The consultation period ended on 30th April 2012 and whilst some ‘stakeholders’ – notably the Social Welfare Department – have raised some objections, amongst lawyers and Family Court judges it would be fair to say there is almost unanimous support. The response of the Hong Kong Bar Association, dated 12th May 2012 – see HKBA Child Custody & Access Response (pdf) – was generally positive – quoting the Court of Appeal’s observations on custody issues in PD v KWW (see below). Interestingly, it noted the current generally accepted myth that Joint Custody Orders are ‘commonly made’ by the courts in Hong Kong. This is not the case. Sole Custody Orders (with c. 75% in favour of mothers) remains the norm and those in government who appear to think otherwise need to look carefully at the statistics before formulating policy on urgently needed reform. See Sharon Melloy Child Custody Orders: Fact or Fiction (pdf) – Paper delivered at the HKFLA/HKU Children’s Law Conference, August 2012. The Hong Kong Law Society’s equally supportive response can be found here: Law Society Response to Child Custody Consultation (pdf). As was the Hong Kong Family Law Association – here. Sadly, whilst most of the other common law jurisdictions have long ago adopted such reforms in Hong Kong, for now, all this remains contingent.

Update (2013) there appears to be some movement by government on reform of Children’s law in Hong Kong. See: LC Paper No. CB(2)1483/12-13(02) – Paper issued by the Administration on 3rd July 2013 and LC Paper No. CB(2)1483/12-13(03) – Background brief prepared by the Legislative Council Secretariat Meeting on 8th July – 3rd July 2013. The Panel’s conclusions on implementation of the LRC report state that:

‘Noting that the majority of concerns relate to how the Model is to be implemented in practice, it is important for the Administration to work out the legislative details and implementation arrangements to show how the concerns could be addressed in practical terms. To pursue the legislative route for implementing the Model, the exercise would inevitably be a massive one, involving changes to be made to different parts of our various matrimonial and custody-related ordinances. At present, there are a number of ordinances in Hong Kong dealing with custody and access matters, including the Guardianship of Minors Ordinance (Cap.13), the Separation and Maintenance Orders Ordinance (Cap.16), the Matrimonial Causes Ordinance (Cap.179), the Matrimonial Proceedings and Property Ordinance (Cap.192), the Protection of Children and Juvenile Ordinance (Cap.213) and others.

In light of the evolving overseas legislation in the area, we also need to take into account the latest developments and see how Hong Kong could develop our own model riding on the experience of other jurisdictions. We propose that (LWB in conjunction with the Department of Justice) commence the initial stage of the follow-up work of the Report: conduct research on the latest developments in overseas jurisdictions, and prepare legislative proposals and implementation arrangements (especially on the safeguards in handling cases involving domestic violence or hostile parents). In the process, we will closely liaise with all relevant parties including the Judiciary, the Law Society of Hong Kong and other stakeholders. We will work with concerned parties including the Judiciary and the relevant Bureaux/Departments and consider how to take forward some of the recommendations through administrative means, e.g. issue of guidelines, provision of training, and review and research on relevant arrangements. Moreover, as the concept represents a significant change in the mindset of parents, we will continue our efforts on the publicity and education front to promote the concept of parental responsibility. Upon working out the detailed legislative and administrative proposals, we will further engage the stakeholders and interested parties before embarking on legislation.’ – in other words watch this space.

Update (April 2016) – following my comments below, the Law Society Submissions have proposed “Children Arrangements Ordinance” – see the full text by clicking the link.

Following HKLRC Report on Child Custody and Access (March 2005‘), the Labour and Welfare Bureau (‘LWB’) has published its draft Bill, following extensive public consultations. The LWB invited views closed on  25 March 2016. Stay tuned for any updates – Children Proceedings (Parental Responsibility) Bill   See Draft Bill 

My own view is the government should immediately consider renaming the Bill – the new legislation should be referred to as the ‘Children Ordinance’ – given that PR is only one of the necessary changes in the wider context of revision of the statutory provision covering children in Hong Kong. Further, and more importantly, the Bill is not about enshrining ‘parental rights’ but children’s rights – and this should be made clear from the outset. ‘Children Arrangements Ordinance’ seems about right.

Current Law

If one reads through the many Hong Kong Family Court Judgments (see below for some of the leading cases) there are various expressions of the law and general principles to be applied by the court in deciding child custody, care and control cases. As always the facts vary in each case but the following examples – two from the Family Court and one from the Court of Appeal show how the current approach of the courts will will be applicable in every case and vary only as to style rather than content.

The Proper Approach to the Law in Child Custody & Access Cases

In short, the Court’s jurisdiction on children is found in section 19 Matrimonial Proceedings and Property Ordinance (Cap 192) – in that the Court may make such order as it thinks fit for the ‘custody and education’ of any child of the family under the age of 18 – together with section 10 Guardianship of Minors Ordinance (Cap 13)  in that the Court may make orders regarding (a) the custody of the minor and (b) the right of access to the minor of either of his parents. The first and paramount consideration in application under either Ordinance shall be the best interests of the minor – section 3 Guardianship of Minors Ordinance and section 48C Matrimonial Causes Ordinance (Cap 179).

The terms ‘custody’, ‘care and control’, ‘supervision’ and ‘access’ are not defined in any of the statutes.  However it is now clear that whilst ‘custody’ allows a parent to take the larger decisions in a child’s life – see generally The Hong Kong Law Reform Commission Report on ‘Child Custody and Access (March 2005) – ‘care and control’ generally means the more mundane, day-to-day care of the child. The leading judgment in this area is now PD v. KWW (Joint custody, care and control) CACV 188/2009, [2010] 4 HKLRD 191. In that judgment, Hartmann JA addressed in detail the meaning of the concepts of custody and care and control:

‘The decisions to be made by a custodial parent are those of real consequence in safeguarding and promoting the child’s health, development and general welfare. They include decisions as to whether or not the child should undergo a medical operation, what religion the child should adhere to, what school the child should attend, what extracurricular activities the child should pursue, be it learning a musical instrument or being couched in a sport. A parent vested with custody has the responsibility of acting as the child’s legal representative.

By contrast, the decisions to be made by a parent who (at any time) has care and control of the child are of a more mundane, day-to-day nature, decisions of only passing consequence in themselves but cumulatively of importance in moulding the character of the child. They include a host of decisions that arise out of the fact that the parent has physical control of the child and the responsibility of attending to the child’s immediate care.  They include decisions as to what the child will wear that day, what the child may watch on television, when the child will settle down to homework and when the child will go to bed.  They also include the authority to impose appropriate discipline.’

Examples – Court’s Approach

“This Be The Verse”  – Philip Larkin

They fuck you up, your mum and dad.
They may not mean to, but they do.
They fill you with the faults they had
And add some extra, just for you.

But they were fucked up in their turn
By fools in old-style hats and coats,
Who half the time were soppy-stern
And half at one another’s throats.

Man hands on misery to man.
It deepens like a coastal shelf.
Get out as early as you can,
And don’t have any kids yourself.

This famous Larkin poem was quoted by none other than Lord Justice Wall in  CP v AR & Anor [2009] EWCA Civ 358 (29 April 2009); [2009] Fam Law 586, [2009] 2 FLR 819, [2009] 2 FCR 203, [2009]

Sad news: Sir Nicholas Wall 

An example of how not to fight custody battles (and a vindication of Larkin’s view if ever there was one)

Before looking at cases which set out the law as it will be approached by the court the truly shocking and sad case of CLL v SW FCMC 10564/2012 is as good a place to start for all lawyers and parents contemplating getting into a custody battle – where, in this case the judge found as a fact that sexual abuse allegations were fabricated by the Mother in order to obtain K’s custody and to gain an advantage in her ancillary relief claims against the Father. Whilst it is probably correct to say this type of case is mercifully rare in Hong Kong, ‘variations and versions’ of unhinged attempts at ‘parental alienation’ (more often than not against the father) arise quite often. The problem, in my view in Hong Kong (as in UK), is a severe lack of training of SWOs, who are too often seemingly overwhelmed by the level of conflict and, along with the Family Court (who rely on their ‘eyes and ears’), leads to timidity and a complete failure to take a firm grip of the situation at an early stage. The lawyers instructed must take some blame too and any attempt to hide behind ‘legal professional privilege’ should be firmly stamped on by the courts. The statutory ‘best interests of the child’ should override LPP in any case where a child is in danger of suffering physical or mental harm.  Certainly I came across many such cases in my practice in England – where the courts have power to impose criminal style CSOs on recalcitrant parents who refuse to obey court orders. However, that the child in this case was allowed to be abused for ‘almost half her life’ in nothing short of disgraceful.

As the court said:

Per HHJ Bruno Chan (17th December 2012) – This is a truly sad high conflict case of parental dispute over their 7 ½ year old daughter which had span almost half of her life, with numerous accusations of the worst kinds including sexual, physical and psychological abuses being thrown against each side not just between parents but also the grandparents, so bitter and hostile their relationship had become that at times one got the impression that in order to deny the other side of the child, both parents would rather that she continued to stay in the Po Leung Kuk where she had been held on and off for more than a year as a result of those abuse allegations and the consequential care and protection orders issued by the Juvenile Court, and so heart-rending from reading the many reports from the social welfare workers and clinical psychologists involved and their evidence before the court of how the child has been torn between her parents that she may have developed certain psychological symptoms that one can only hang his head in despair and rendered speechless

… As a matter of fact, given the nature and gravity of the allegations being levelled against each other by the parties, which if proved as true are clearly diametrically opposite or contrary to the best interests of such a small child, that one may even conclude that the parent who is guilty of such behaviour may indeed be unfit to have any contact or access to that child, let alone her custody care or control.

… To accuse a parent of putting his or her small child through such a terrible ordeal over such a long period of time is unthinkable to say the least under any circumstances, and no matter how many bitterly entrenched parents that I have seen in all my years in this jurisdiction, I have always refused to believe that a parent would intentionally put his or her child in harm ways. Sadly all the evidence in this case show that the Mother is guilty of just that, not necessarily intentionally but certainly recklessly in what can certainly be described as a horrific Machiavellian scheme to wrestle K from her father’s care and control.

For a recent UK Court of Appeal judgment in similarly robust vein see A (A Child) [2013] EWCA Civ 1104 – As the court opened its judgment – ‘On October 2012, in the opening words of the judgment that is the subject of this appeal, His Honour Judge Alan Goldsack QC made the following observation:

“It was in 1988, as a Recorder, that I first started hearing private family law cases. I have continued to hear them over the intervening twenty four years, including four years as Designated Family Judge at the end of the last century. I do not recall any case (even Public Law cases involving several children) which has taken so long or has left me with such a feeling of failure on the part of the Family Justice System. Neither the parents nor the child have been well served … All I can say, with the benefit of hindsight, is that some of the turns which this case has taken, or not taken, appear surprising and I have no difficulty in understanding why father has expressed criticism both of professionals appointed to assist the court and judges for not enforcing orders.”‘

See also NAV v JTMW FCMC 4191/2012 (12th November 2014) – this case is clearly ongoing (as of early2015) and the outcome uncertain – but either way it is a clear example of young children becoming pawns in a high conflict case.

Family Court Example

P v P CMC 13264/2002 – HHJ Bruno Chan. In deciding on the custody or upbringing of minor children, section 3 of Guardianship of Minors Ordinance, Cap. 13, makes general provision for the Court to have regard to the welfare of the minor as the first and paramount consideration and in having such regard, the Court shall give due consideration to:

(i) the wishes of the minor, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and
(ii) any material information including any report of the Director of Social Welfare available to the Court at the hearing.

The section also provides that the Court 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.  These are fundamental principles to be applied in any such case unless expressly or impliedly excluded by statute, and are substantially the same as those set out in section 1 of the English’s Children Act 1989 where the welfare of the child is no longer expressed to be “the first and paramount consideration”, but is to be the Court’s “paramount consideration”.  Section 8 of the 1989 Act also provides that where the Court is considering whether to make, vary or discharge such an order, it must have regard in particular to the matters specified in section 1(3) of the 1989 Act, which has come to be known as “the welfare checklist”, of which Waite LJ said in Re DB and CB (minors), Southwark London Borough v B [1993] 2 FCR 607, CA as follows:

‘The Act does not envisage two potentially conflicting views of “welfare”: one to be reached by adopting an unspecific approach under s. 1(1) and the other to be reached by applying the factors to which mandatory regard is enjoined by s.1(3)(a) to (g).  The colloquial description “checklist” describes the function of s.1(3) with complete accuracy.  It is an aide-memoire designed to ensure that none of the factors potentially relevant for a court considering a child’s welfare generally in the circumstances of each particular case is left out of account.  In most cases the use of the s.1(3) checklist is compulsory.  In others, where the court’s assessment of the requirements of a child’s welfare is left to be reached at large without any statutory guidance as to the basis for its exercise, the checklist is still available for the assistance of the court; the only difference being that the court is under no mandatory duty to make use of it’.

Although we do not have the equivalence of section 1(3) or 8 in our statue, I agree that most of the matters referred in the checklist, which are as follows, would be of helpful guidance and assistance to the Court in the assessment of the requirement of the children’s welfare:

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs.

Current Leading Authority – Court of Appeal

In PD v KWW  [2010] 4 HKLRD 191 [paras 26ff] to Hartmann JA (as he then was) took the opportunity to comment fully on the law and guiding principles that the courts in Hong Kong should adopt when dealing with parental disputes over custody, care and control. Helpfully, the Court of Appeal also commented on the wider issues of the historical shift is societal values and the need to address them and Lam J made some sensible obiter observations on the long overdue need need for reform of the law in this area.  The following is an edited version of the judgment. To read the full version simply click the link above.

The Concepts of ‘Custody’ and ‘Care and Control’

As our law has developed and now presently stands, when a marriage breaks down and the court must ensure the best interests of any child of the union, it will invariably do so by bringing into play the dual concepts of ‘custody’ – whether it be sole or joint custody – and ‘care and control’.  Neither concept, however, is defined in our statute books … [and] misunderstanding … exists as to the nature and extent of the two concepts. This is most often manifested in the misperception that, if sole custody is given to one parent, that parent thereby ‘wins’ the right to determine all matters big and small in the upbringing of that child while the parent who is not given custody ‘loses’ the right to have any say in the child’s upbringing … It is to be emphasised 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 [1980] 3 WLR 626 in which Ormrod LJ said:

“It used to be considered that the parent having custody had the right to control their children’s education, and in the past their religion.  This is a misunderstanding.  Neither parent has any pre-emptive right over the other.  If there is no agreement as to the education of the children, or their religious upbringing or any other matter in their lives, that disagreement has to be decided by the court.”

In the same case, Cumming-Bruce LJ, another experienced family judge, said: “…. it (is) a fallacy which continues to raise its ugly head that, on making a custody order, the custodial parent has a right to take all the decisions about the education of the children in spite of the disagreements of the other parent.  That is quite wrong.  The parent is always entitled, whatever his custodial status, to know and be consulted about the future education of the children and any other major matters.  If he disagrees with the course proposed by the custodial parent he has the right to come to the court in order that the difference may be determined by the court.”

A non-custodial parent therefore has the right to be consulted in respect of all matters of consequence that relate to the child’s upbringing.  While the right to be consulted does not include a power of veto, it is nevertheless a substantial right.  It is not merely a right to be informed, it is a right to be able to confer on the matter in issue, to give advice and to have that advice considered.

While therefore a parent who is given sole custody is given the authority, in the event of disagreement with the non-custodial parent, to make the final decision, it should only be made after due consultation and, if the final decision that is made is considered by the non-custodial parent to be inimical to the child’s best interests, the court may be called upon to determine the matter.

Invariably, therefore, the giving of sole custody to one parent does no more than recognise that, in the circumstances of the breakdown of the marriage, the best interests of the child are secured by giving to that parent the authority, if necessary, to make a final decision concerning matters of consequence in the upbringing of the child but only after the other parent’s views have been given full and rational consideration.  In summary, an order of sole custody does no more than add a qualification to the otherwise joint endeavour of both parents in raising their child, that qualification being that the final decision will rest with one parent. For this reason it is often said that there is a thin line between sole custody and joint custody.

Before leaving a consideration of the dual concepts of custody and care and control, it needs to be emphasised that, when a court awards care and control to one parent but rights of access to the other, as in the present case, the court is effectively awarding a form of shared care and control.  This is because, when a parent exercises rights of access, especially staying access, that parent assumes care and control of the child for the time that the child is in that parent’s physical custody.  Rights of access, it is to be remembered, are given – in the interests of the child – to ensure continued bonding between parent and child [my emphasis].

A Shift in Societal Values

There was a time when the parents of a child, more particularly the father, had almost absolute authority over that child.  That is no longer the case.  The principle that the best interests of the child – not the authority of the parents – must be the paramount consideration is today almost universally recognised.  As Lord Fraser said in Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1986] AC 112 at 170:

“… parental rights to control a child do not exist for the benefit of the parent.  They exist for the benefit of the child and they are justified only in so far as they enable the parent to perform his duties towards the child.”

There was a time also, not so long gone, when the roles of the mother and the father in the raising of their child were viewed with almost equal rigidity.  The mother was best left to care for the child, certainly when the child was young.  The father was best left to provide financial support and to exercise rights of guardianship.  As for his contact with the child, visitation was deemed sufficient.  Today, such sexist views are obsolete. Social imperatives change.  When they are important and lasting, the common law can, and should, keep pace with that change.

It is widely recognised today that the long-term best interests of a child are invariably best protected if, despite the breakdown of the marital union, both parents are able to continue to play an equal role in making the important decisions that will determine the child’s upbringing. In the United States, for example, shared custody is common.  The courts routinely grant joint custody orders unless one parent is clearly found to be unfit. [Note: In the United States, ‘joint legal custody’ is differentiated from ‘joint physical custody’.  Joint legal custody is the equivalent of our joint custody.  Joint physical custody is, in our law, the equivalent of joint care and control.]

In England and Wales, the Children Act 1989 has sought to emphasise the continuing parental responsibility of both parents even if an order has been made that the child will reside with only one of them. Other common law jurisdictions – for example, Australia – have made legislative changes to similar effect, that is, where appropriate, to ensure the continued active involvement of both parents in the upbringing of the child, or children, of their marriage.

The Hong Kong Law Reform Commission Report on Child Custody and Access of 2005 recommended changes in line with the Children Act 1989 but regrettably, to date at least, little appears to have been done to give the Commission’s recommendations legislative form.

Joint Custody: the Proper Approach

Today, although there has been no change in our law similar to many other common law jurisdictions, orders of joint custody are in no way exceptional.  This is because it is accepted that, in principle, such orders are in the interests of children. In all but the most exceptional circumstances, the effect of divorce on the children of the marriage, especially children of tender years, is deeply felt.  In all but the most exceptional circumstances, such children desire that they should continue to be protected and guided by both parents.  The case before us is an example.

In the result, in the best interests of the child, the fact that, as a result of the breakdown of the marriage, relations between the parents are strained is not of itself a reason to refuse to make a joint order of custody.  Nor is the fact that the parent to be given care and control does not agree.  Such orders look to the future.  They will govern a limited area of exchange between the parents, albeit one of the greatest importance.

Accordingly, the issue for the judge is whether, with the court proceedings concluded, it is reasonably anticipated that the parents will be able to agree on the questions of importance that will determine the upbringing of their child, both recognising that, as difficult as it may be for them, this process of co-operation is in the best interests of the child. In determining this issue, the judge is entitled to proceed on the presumption that competent, loving parents possessed of sufficient objectivity to be able to make rational decisions in the interests of the child will be able to co-operate with each concerning matters of importance in the upbringing of the child.

At all times, of course, the welfare of the child remains the first and paramount consideration.  As this Court has recognised (see, for example, Y v P [2009] HKFLR 308), there may be occasions when the ability of the parents to reach any rational accord in respect of important matters concerning the upbringing of their child is so deeply undermined that to compel attempts at co-operation will not protect the interests of the child but only leave the child more vulnerable.

The Joint Custody Order made in the Present Case

In the present case, the judge directed herself correctly as to the law.

As to the exercise of discretion, she took into account and gave due weight to the relevant evidence.  In this regard, she acknowledged the very real desire of the father to play an active role in his daughter’s upbringing.  This was clearly a legitimate matter to take into account.  See, for example, Caffell v Caffell [1980] FLR 169, per Ormrod LJ, page `171:

“… there are cases in which the party who has not got the day-to-day control of the children is anxious to preserve as much of his or her contact with them as possible in the new circumstances where the parties have separated, and there is a good deal to be said for recognizing the responsibility and the concern of the father in this case by making some order which shows that the court recognizes that he is anxious to take an active part in their upbringing.”

Obiter comments by Lam J

Hon Lam J at para 78ff – I agree with the judgment of Hartmann JA.  Though the line between sole custody and joint custody is a thin one, it is still one with potential practical significance.  A parent with sole custody can determine the place of residence of the child.  The other parent, whilst he or she might have a right to be consulted, does not have the power of veto.  This could have immense significance in terms of removing a child from the jurisdiction.

Thus, when sole custody is granted to one parent, our courts usually order at the same time that the child shall not be removed from the jurisdiction unless the consent of the non-custodial parent is obtained.  This would not be necessary if we have the equivalent of Section 1 of the UK Child Abduction Act 1984.  Under that section, it is an offence to take a child out of the United Kingdom without the consent of the other parent or the court.  However, notwithstanding the recommendations of our Law Reform Commission in 2002, the proposal has not been implemented.

Likewise, as observed by my Lord, the recommendations of our Law Reform Commission in 2005 regarding Child Custody and Access have not been taken forward.  Had such recommendations been implemented, the respective rights and responsibilities of the parents towards their children would be more clearly and specifically defined.  Judging from the submissions advanced by the parties in this case, I cannot help from observing that with the implementation of such reforms, appeals like the present one could have been avoided.

Speaking for myself, I would like to take this opportunity to urge the administration to make some progress in these directions.

The other leading judgment of the CA often cited along with PD v KWW is Y v P CACV 140/2009; HKFLR 308 – Joint Custody order overturned – sole custody to the mother.

Further Informative and Often Cited Judgments

Include:

A recent ‘high conflict’ case which judgment appears to be a bold decision to stretch the principles set out PD v KWW is LMM v LKKV FCMC 1062/2013. Here the court ordered (albeit subject to a 15-month review) not only joint custody but also joint care and control in an otherwise apparently high conflict case where both mother and father were seeking sole custody and appeared to be in disagreement about almost every aspect of the 8-year old child’s best interests.

H v A FCMP 186/2003; [2005] HKEC 740 – Appropriate age for staying access. ” 25. Of course, a natural element of joint custody involves co-operation, but the mother cannot be allowed to say simply that she is unable to co-operate and thereby have the court endorse her rights to sole custody.  In my view she must be encouraged to co-operate and this can be done quite properly by way of a joint custody order …  27.  With regard to staying access whilst I am aware that D is still young, only 20 months of age or thereabouts, he is quite familiar with the Applicant and I see no reason why the Applicant should not have staying access to D once each month from Friday 6:00 pm to Sunday 6:00 pm.  I am prepared also to order that the Applicant have access to D for holidays at this stage for periods not exceeding two weeks in any year.  I do not however feel that D is old enough to be away from his mother for long periods of time so as far as holiday access is concerned.”

H v H CACV 42/2002 CA

K v W [2006] HKFLR 292

L v C CACV 333/2003; [2004] HKEC 481

L v F [2007] HKFLR 104 English Welfare checklist cited

L v N FCMC 5693/2000; [2003] HKEC 272 – Very high conflict case custody case – excessive costs – voluminous expert reports. HHJ Bruno Chan – This is the parties’ contested application for their 5 years old son M, the only child of their 6 years marriage which ended recently by these proceedings. It is however no ordinary custody dispute, at least not the usual straightforward ones that one normally sees in the Family Court. It started out in the most dramatic and hostile manner in the High Court under the guise of the Guardianship of Minors Ordinance and the Domestic Violence Ordinance involving injunction, ouster order and committal for contempt proceedings, which then boiled over to the divorce proceedings in the Family Court and eventually the custody dispute now before me, accumulating on its way thousands of pages of pleadings, affirmations and reports prepared by no less than 8 experts including psychiastrists and psychologists, and finally a trial lasting more than 5 weeks in evidence, with combined legal costs incurred by the parties of more than $5 million, which I understand to be some $2 million in excess of the total equity of their assets. With this kind of costs one has to ask whether all these were necessary or justified, or whether they could have been avoided or at least handled differently. No doubt I will have more to say about the conduct of the proceedings later, but in the meantime I will confine myself to first give a brief background of the marriage and a history of the proceedings which led to the matter now before me.

LHM v HYF FCMP 10/2010 – High conflict custody case HHJ Bruno Chan

M v H FCMP 19/2004 [2006] HKEC 830

ML v YJ HCMC 13/2006 Rec. Rimsky Yuen SC 23 May 2007

1) In considering whether to grant joint custody to both parents or sole custody to one of them, the first and paramount consideration is the welfare of the child.

(2) Whether or not a joint custody is workable depends very much on whether the parents can co-operate. A court may refuse to grant joint custody if there is no reasonable prospect that the parties will co-operate. Whether or not there is such reasonable prospect is a question of facts. If there is no reasonable prospect of co-operation between the parties, an order of joint custody can be a recipe for disaster and contrary to the best interest of the child.

(3) A joint custody order may in appropriate cases be made for the purpose of encouraging parents to overcome their differences and co-operate for the benefit of their children. Joint custody in such circumstances can serve the purpose of recognizing the role of both parents in the children’s upbringing. However, if it is clear that a joint custody order is not workable, it seems unlikely that the Court will nevertheless make such a joint custody order solely for the purpose of encouraging the parties to overcome their differences or to recognize the continuing role of the parties. As stated above, a joint custody order which is unlikely to be workable cannot be in the best interests of the children as the adverse consequences will far outweigh the benefits that it may bring.

(4)  A custody parent does not have the right to make all the decisions about the children in spite of disagreements of the other parent. Should there be any disagreements over major matters affecting the children, the party who does not have custody can bring the matter to the Court for determination.”

Naziya Aslam v Rafaqat Ali CACV 144/2003 CA; [2004] HKEC 358 – On the need to maintain status quo – 36. The apprehension that the children would not be able to settle in a new environment with relatives whom they scarcely know is, in my view, overrated. Young children are adaptable. Although the judge considered that it was important to maintain the status quo, I do not consider that the period subsequent to the children’s return to Hong Kong and prior to the hearing was sufficiently long that a change of environment would be unduly disruptive.

P v P CACV 256/1996

PCY v CYW [2009] HKFLR 382 – HK-China cross-boarder staying access

SEB v XZ FCMC 14535/2005; [2007] HKFLR 165 – citing: Dipper v Dipper [1980] 2 All ER 722; and cases (above) ML v YJ –  Aslam v Ali – P v P –  L v C.  Good discussion of the wider issues around custody care and control – per HHJ Melloy: ‘A great deal was said at the beginning of the trial about the terminology still used in our legislation and in particular what is actually meant by the terms custody, care and control and access … the Law Reform Commission’s last report dealing with issues pertaining to children, entitled “Child Custody and Access” … was published on the 7th March 2005.  There was a great deal of enthusiasm within the profession at the time about potential reforms to our legislative framework … The report however, is a useful tool, as it sets out the present state of the law on children in Hong Kong …’

Y v L HCMC 695/1995; [1998] HKEC 692

Y v L FCMC 4933/2006; [2007] HKEC 1593

YLS v TL FCMC 8396/2007; [2009] HKEC 37  English welfare checklist cited.

W v F FCMP 809/2004; [2005] HKEC 91