HONG KONG SAR, CHINA Law and Practice Contributed by: Jocelyn Tsao and Philippa Hewitt, Withers
1. The Care Provider’s Ability to Take Decisions About the Child 1.1 Parental Responsibility In Hong Kong, despite the Law Reform Commission recommending the parental responsibility model in 2005, the terminology in respect of children’s arrange - ments post-separation and the orders made by the courts daily remains “custody”, “care and control” and “access”. The legal fraternity has been very supportive of a change in terminology in the hope that disputes relating to joint and sole custody can be reduced, and in recognition that both parents continue to have an active role in their children’s lives despite their sep - aration. The law in relation to children is in need of reform and clarification, and although there is a draft bill – the Proposed Children’s Proceedings (Parental Responsibility) Bill – that embraces such change, it has yet to be passed by the government. Many of the provisions are, nevertheless, referred to in family court judgments, despite the lack of legislative change. Custody The equivalent to “parental responsibility” is “cus - tody”, being the power of the parents (or, in certain circumstances, the guardian, who can be the Direc - tor of Social Welfare) to make major decisions, such as those relating to health, education and religion on behalf of the child. The courts can make orders for sole or joint custody of the child. Joint custody is the more common order made by the court, and it is closest to the concept of parental responsibility, though courts will usually make orders for sole custody when there has been a break - down in communication between the parents and it is in the child’s best interest to order sole custody to one parent. However, it is always open for the “non- custodial parent” to make an application to the court relating to those major decisions. There is no specific definition of “custody” in leg - islation, and the law has been determined by case law over the years. (See PD v KWW [2010] HKFLR 184, paragraphs 52–57, “Joint custody: the proper approach”.)
Care and Control, and Access There is also no statutory definition concerning care and control. In practice, care and control relates to the day-to-day care of children and with whom they live most of the time; this can be sole, joint or shared. Access is the right of the child to access the parent who does not have care and control. This can be “rea - sonable access” where arrangements are left to the parents to work out between themselves, or “defined access” where an order is made in respect of school days and holidays spent with each parent. In challeng - ing cases, there is also “supervised access” when it is deemed in the children’s best interests for access to be in the presence of a third party. Where the court orders sole care and control to one party, an access order (reasonable or defined) will also be made in relation to the non-custodial parent. Where the court orders shared or joint care, a single order will be made dividing the children’s time. “Joint care” tends to be more equal in time shared, and “shared” is more like a defined access order, though the termi - nology is more conciliatory. It is not open to courts in Hong Kong to make a “no order”. The power of the courts to make orders in respect of custody can be found in the Guardianship of Minor’s Ordinance (GMO), Chapter 13, Sections 3 and 10, and the Matrimonial Proceedings and Property Ordinance, Chapter 192, Section 19. 1.2 Requirements for Birth Mothers A birth mother will have the right of custody of her child from its birth pursuant to Section 3 of the GMO Chapter 13. 1.3 Requirements for Fathers The right of custody for a father is equal to that of a mother, unless he is not married to her. If the couple are unmarried, the father does not have automatic legal rights as a parent per se, and must make an application under Section 3 (1)(d) of the GMO to sat - isfy the court that he is the father and to be granted “all of the rights and authority the law would allow him as if the child were legitimate”.
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