HONG KONG SAR, CHINA Trends and Developments Contributed by: Stephen Peaker, Yvonne Kong, Lauren Ng and Gabriel Yuen, Oldham, Li & Nie
shared its view with the public that this concept is outdated, as it erroneously identifies children as under the control of their parents, who have rights over them that can be disposed of and possessed by a parent, and thereby fails to encourage parents to make decisions that are in the best interests of the children post-separation or divorce. Contrary to the concept of “custody” and “care and control”, the concept of “parental respon - sibility” emphasises the relationship between parent and child and the rights of the child to both parents, which is far more neutral and child-friendly in nature. More importantly, the concept of “parental responsibility” serves as an important reminder to all parties involved in divorce proceedings (including but not limited to parents, members of the judiciary and legal practitioners) that the focus should be on the children’s best interests, not the parents’. The concept of parental responsibility represents the modern view in family law practice that children shall be deemed as individuals with their own rights, voice and wishes and that – in light of their vulnerability – they ought to be protected and given priority, especially those who are involved in divorce proceedings. However, that is not to say that the Hong Kong Family Court does not take into account nor prioritise the wishes of children. Under Practice Direction PDSL5, which came into effect on 28 May 2012, the family court has long since rec - ognised that – in circumstances where a child is capable of forming their own view – that child should have the right to freely express those views directly or indirectly. Pursuant to PDSL 5, the family judge has the discretion to meet with a child either upon application by the parties or on their own motion. While it is rare for a family judge to interview children, in the recent case of
I, M, also known as K, M and I, SM (2023) HKFC 66, the family judge exercised her discretion to meet the children to determine their wishes in a relocation case. Moreover, where there are disputes regarding the children’s arrangements, the family court frequently calls for social investigation reports to be conducted, with the social investigation officer acting as the eyes and ears of the court to report on the wishes of the children. Thus, while there has not been significant progress since the Children’s Bill in 2015 owing to objections from certain sectors as part of the consulta - tion process, the family court does support and ensure that children’s voices are heard. A legis - lative push to enact the Children’s Bill to bring the model of parental responsibility into Hong Kong Family law will only serve to strengthen the family court’s commitment to putting the best interests of children as the first and paramount consideration. Conclusion It is beyond doubt that various schemes, poli - cies and draft bills have been introduced and implemented throughout the years to enhance the efficiency of the Hong Kong Family Court in light of its heavy workload. As such, family law practitioners in Hong Kong are eager to see more developments both within the court and in terms of the law. Therefore, the continuous modernisation and development of the family justice system (includ - ing the introduction of electronic filing) would undoubtedly be welcomed, as it would enhance the effectiveness of the Hong Kong Family Court.
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