“Parental Responsibility” and “Custody”

Parental responsibility

In Hong Kong, despite the Law Reform Commission recommending the parental responsibility model in 2005, the terminology in respect of children’s arrangements post-separation and the orders made by the courts daily, remains “custody”, “care and control”, and “access”. The legal fraternity have 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 the children’s lives despite the separation of their parents. 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 – which embraces the change, this 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

Thus, the equivalent to “parental responsibility” is “custody”, being the power 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. Joint custody is the more common order made by the court, and closest to the concept of parental responsibility, but courts will make orders for sole custody usually when there has been a breakdown 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 court relating to those major decisions.

There is no definition of “custody” in legislation 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 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 “reasonable 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 challenging 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.

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.

A birth mother will have the right of custody of her child from its birth pursuant to Section 3 of the GMO Chapter 13.

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 satisfy 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”.

Guardianship

A non-genetic parent can obtain custody of a child if the natural and legal parent makes an application for guardianship in their favour. The Director of Social Welfare can also make the application, as can the child him-/her-self in certain circumstances (AA v BB [2021] HKCFI 1401). Once the application has been made, the court has the power under Section 10(1) of the GMO to make such custody order as it sees fit.

Relevant cases in Hong Kong have involved step-parents and grandparents.

Adoption

The adopting parents of adopted children in Hong Kong have rights of custody (see 1.7 Adoption).

Surrogacy

It is also possible for a non-genetic parent to obtain custody via a parental order as a consequence of surrogacy. In this case, at least one of the parents must be genetically linked to the child. There are numerous requirements for such non-genetic parents beyond the scope of this paper.

In all cases, the non-genetic parents (as with any parent) are required to demonstrate to the court that the arrangements to be made for the children are in their best interests, which is the first and paramount consideration of the court. The court must also take into account the views of the children having regard for their age and understanding, and any material information including any reports by the Director of Social Welfare (Section 3 of the GMO).

Marriage is only relevant at the point of birth in the context of the unmarried father who will need to make an application under Section 3(1)(d) as referred to in 1.3 Requirements for Fathers, in order to have the same rights as the mother regarding custody. Marriage at the point of conception is irrelevant.

Same-sex relationships are not legally recognised in Hong Kong. However, the courts have not shown any prejudice towards same-sex families and, as long ago as 2005, joint custody was awarded to both parents, and care and control to the mother who had left the father for a same-sex relationship (W v W [2005] HKFLR 312). More recently, in 2021, in the case of AA v BB [2021] HKCFI 1401, the court granted equal parental rights – custody, care, and control – of two children to the non-biological lesbian parent, as social investigation reports and all evidence demonstrated her to be a capable, loving, and dedicated parent to the children and it would be in the children’s best interests for her parental rights to be recognised. This confirms that the paramount consideration of the court is always the best interests of the children.

There are a number of requirements under the Adoption Ordinance Chapter 290 which have to be met by the adoptive parents to obtain an adoption order, which will give them rights of custody as if that child had been born to them.

• A sole applicant or two spouses jointly may apply, so no unmarried couples.
• The sole applicant must either be a parent or a relative of the parent, or married to a parent of the child, or over 25.
• The spouses must either be over 21, or one of them must be the mother or father of the infant.
• No sole male applicant can adopt a girl, unless in exceptional circumstances.
• There is a residency requirement – both infant and applicants must reside in Hong Kong and the infant must have been in the care of the applicant for at least 6 months before making the order, unless one applicant is a parent in which case this requirement reduces to 13 weeks.
• The birth parents must give their consent to free the child for adoption (which, in exceptional circumstances, can be overruled by the court).
• There is a stringent vetting process including health checks, criminal record checks, and an assessment by a qualified social worker.
• No one other than the Director of Social Welfare, a parent, or someone married to a parent can place a child up for adoption.
• The court, in making an adoption order, must be satisfied that this is in the best interest of the child and that the adopters are fit and proper people.
• The court must be satisfied that no reward or consideration has been made in respect of the adoption.

Where one parent wishes to move a child of the family permanently out of the family home and to a new country, this can only be done with the consent of the other parent and, if proceedings have been issued, with leave of the court.

If the required consent is not given, the parent hoping to relocate will have to make an application to the court for leave to permanently remove the child, or, if the child has been removed already, leave to remain outside the jurisdiction of Hong Kong.

The court will have to consider a number of factors in determining whether it is in the best interests of the children to relocate, which are listed in 2.3.1 Factors Determining an Application for Relocation.

Fortunately for families in Hong Kong, which is relatively small, access is readily achievable within the jurisdiction. There are, of course, disputes regarding access arrangements and sometimes complicated plans must be put in place for the transfer of children from one home to the other. The other factor in Hong Kong is that this is generally greatly facilitated by the common presence of full-time domestic carers who are able to accompany the children from one venue to the other.

At present, if there are no proceedings before the court and no prohibition on removal of the child, it is not “illegal” to remove the child from the jurisdiction without consent of the other parent or the court.

Where there are proceedings, leave of the court is required.

The Proposed Children’s Proceedings (Parental Responsibility) Bill, referred to in 1.1 Parental Responsibility and which has yet to be ratified by the Legislative Council of Hong Kong (LegCo), includes a provision which would make giving written consent to remove a child from Hong Kong for more than a month mandatory. It would also be mandatory to obtain express written consent to permanently remove a child from the jurisdiction of Hong Kong.

Hague Convention Countries

• Hong Kong is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction 1980 and the Child Abduction and Custody Ordinance Chapter 121 was enacted in 1997 to give effect to the Convention in Hong Kong.
• Therefore, where the child has been removed without consent, to another country which is a signatory, or wrongfully retained in Hong Kong, it is possible to follow the relevant procedure.
• The Secretary for Justice is designated as the Central Authority of Hong Kong (in practice, this is the Department of Justice – DOJ).
• The central authorities will co-operate with each other to secure the prompt return of the child to its place of habitual residence.

Steps to be taken include the following.

• Make an application to the High Court of Hong Kong by originating summons if the child has been wrongly removed or retained in Hong Kong, supported by an affidavit.
• Inform the DOJ of the intention to make an application by filing the prescribed form.
• The court has the power to make interim orders in addition to an order for return or otherwise.
• There is generally no oral evidence: the aim is to complete the matter within six weeks.

Non-Hague Convention Countries

• Unfortunately, many of the countries with which Hong Kong has a close tie, notably China, Taiwan, and Japan, are not signatories and such cases are more problematic.
• There was a recent case, however, which involved Taiwan, in which the Family Court Judge made it clear that the principles of the Hague Convention would guide the courts in Hong Kong in such cases and it was within the court’s jurisdiction to make a return and non-removal order. The court ordered the immediate return of the child unless the abducting father could show that there was a grave risk of psychological harm upon her return to Hong Kong: SWTQ v WE (Injunction; non-removal of child) [2022] HKFC 177.
• As with Hague cases, lawyers in the other jurisdiction would have to be involved in returning the child to Hong Kong.
• In other cases, particularly those involving unmarried parents, the inherent jurisdiction of the High Court in Wardship has been invoked to assist in getting the abducted child back to Hong Kong: YJH v LKHM (removal of child; wardship) [2019] HKFLR 418; or returned to Taiwan: C v N (Children; wardship) [2016] HKFLR 125.

As set out in 3.2 Steps Taken to Return Abducted Children, Hong Kong is a signatory of the 1980 Hague Convention.

Free Legal Advice

• Article 26 of the Convention provides that each central authority (in Hong Kong this is the DOJ, on behalf of the Secretary for Justice) shall bear its own costs in applying the Convention and that it may not require payment from the applicant under the Convention.
• However, Hong Kong has elected that it is not bound by this unless the costs are covered by legal aid. Such aid is available for relevant applications in Hong Kong. In order to qualify for legal aid, the applicant must pass the merit and means tests. In addition, the applicant, even if legal aid is granted, may be required to pay a contribution towards the costs. In short, therefore, free legal advice is hard to come by.
• There is a Bar Association Free Legal Scheme which will provide free legal advice and representation in some cases.
• Certain solicitors’ firms may take the case on pro bono.

The DOJ website provides information on making the applications under the Hague Convention.

There were approximately five Hague cases that were reported in Hong Kong between 2020 and 2022. The result for four out of the five cases were that the child was ordered to return to the child’s habitual place of residence. The one case where the Hague application was unsuccessful was because the court found that the asserted habitual residence did not acquire the necessary degree of stability to become habitual.

The Purpose of the Hague Convention

• The principle that the child should be returned promptly to the child’s place of habitual residence is upheld in Hong Kong courts.
• The application must be made within a year of the date of removal; if longer than this, the court has a discretion as to whether it is still appropriate to return the child.
• Return may not be ordered if there was no breach of the rights of custody and/or access (where the applicant did not have rights of custody – this can be problematic for unmarried fathers), or if it is found that the applicant had acquiesced to the move.
• Rarely will the defences to the Convention, namely that there is a grave risk that the child’s return would expose her/him to physical or psychological harm or otherwise place the child in an intolerable situation under Article 13, be successful. In Re P [2004] 1 HKLRD 815, it was said that a “very high degree of grave risk of personal harm” had to be established. It would not include difficulties over accommodation and financial support. Such issues are generally to be dealt with in the other jurisdiction, where a proper removal application should have been made.
• In EW v LP (International Child Abduction) [2013] HKFLR 135, the child was not returned for the reasons that he would be put into an intolerable situation due to his level of anxiety and fragility. Also, the formal application had been delayed for 11 months after removal which suggested the applicant had acquiesced. It was heard a further 17 months before the substantive hearing took place, despite directions from the court to set the matter down, due to delays relating to enquiries from the Slovak Central Authority, interlocutory applications, and finding an appropriate date.

Returning an Abducted Child to a Non-Convention Country

• To return a child to a non-Hague Convention country, the applicant will have to make an application to the court in Hong Kong. As the applicant is normally outside of Hong Kong, applications are generally made to the High Court and often involve wardship in order to ensure that the child cannot leave Hong Kong until the application to return has been dealt with.
• Applications under wardship or to the High Court are made by originating summons.
• It has been held in the family courts that the Hague principles will apply with due modification in an appropriate case: YJH v LKHM [2019] HKCFI 2030 and C v N [2016] [2016] HKFLR 125.
• It was held in YJH that the principles of forum non conveniens were sufficient to deal with that case without resorting to the Convention authorities.
• In C v N the High Court found that it was appropriate to apply the general principles of the Hague Convention with some modifications:
1. The welfare of the child is paramount (Section 3 of the GMO).
2. The court would determine which was the more appropriate forum to decide the substantive issues relating to the child’s welfare.
3. Normally the child’s best interests were served by having their future determined in the jurisdiction of their habitual residence.
4. So long as the country from which the child has come applies the principles acceptable to the Hong Kong courts, subject to the matters to be considered under Article 13 or risk of persecution or discrimination, then the child should be returned to his/her place of habitual residence.
5. It is for the abducting parent to prove that there is a defence to the child’s mandatory return and to justify why the child should stay in Hong Kong.
6. As with Hague applications, speed is of the essence.
7. In cases of return, it is normal practice of the courts to insist on undertakings to the court to safeguard the child’s welfare on return.
8. Undertakings should not hamper the freedom of the foreign court and such undertakings should be simple, clear, and easy to implement, and mainly cover the interim period before the foreign court has had a chance to fully address the matter.
9. The objection of the abducted child can be taken into account if the child is of sufficient age and maturity and is able to give valid reasons for his/her refusal to return to his/her place of habitual residence.

• In the same case, the children were returned to Taiwan and the judge decided to temporarily exercise the wardship jurisdiction to ensure a smooth transition of moving the children from Hong Kong.
• The judge found that the children’s undoubted habitual residence was Taiwan, the mother had not demonstrated otherwise, and they had been removed in breach of the father’s rights of custody. There was no suggestion of persecution, discrimination, or risk that the mother and children may face in Taiwan.

Hong Kong is a Hague Convention country.