“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.
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.
In a contested removal case, the court will consider a number of factors, the first and paramount being to determine what is in the best interests of the child.
Other factors may include the following.
The family court in Hong Kong will endeavour to keep the siblings together, particularly in cases of relocation where family support is even more important than in a determination for care and control within the jurisdiction. As the best interests of the children is the court’s “first and paramount” consideration, keeping the children together would be in their interests in the majority of cases, and normally in line with their wishes.
As set out above, the best interest of the minor is the first and paramount consideration after due consideration of the children’s views and a social welfare report. Therefore, the important aspects of the case relating to the parents, be they the primary carer or the left-behind parent, will be secondary and part and parcel of the considerations relating to the children’s welfare. It cannot be said that the courts are more sympathetic to one parent or the other. Having said that, and as mentioned, if the primary carer is moving back “home”, the bar does seem to be lower for those applicants.
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
Steps to be taken include the following.
Non-Hague Convention Countries
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
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
Returning an Abducted Child to a Non-Convention Country
Hong Kong is a Hague Convention country.
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As an international city attracting multicultural families and expatriates, child removal applications are common in Hong Kong. The special administrative region is also full of families who have very close ties to Mainland China – for example, families who live in the PRC but have a business in Hong Kong or families with children being schooled Hong Kong yet the matrimonial home is in the PRC.
All legal trends and developments in Hong Kong with regard to child relocation must therefore take into account the legal implications of ties with Mainland China. Hong Kong is a signatory to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the “1980 Hague Convention”), which came into effect in 1997 through the enactment of the Child Abduction Ordinance. The PRC is not a signatory, but some remedy has been given by the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance.
Following marital breakdown, the Hong Kong court will have jurisdiction over all children and a parent cannot remove a child permanently from the jurisdiction without the leave of the court, even by consent. Under the Guardianship of Minors Ordinance (Chapter 13, Section 3), the court must “regard the welfare of the minor as the first and paramount consideration”. This principle runs through all the cases in which the court must consider the children’s welfare, be this for custody and access or in removal cases. The court is bound to give “due consideration” to:
Trends in Removal Cases
Payne or no Payne?
Bearing in mind the paramount consideration of the court is the child’s welfare, all other factors are secondary. There is no presumption in favour of the parent seeking to move – although this was how cases generally went, historically, following the guidelines of the English courts in Payne v Payne (2001). In Payne, even though the welfare of the child was paramount, the court also considered that – by refusing the primary carer’s reasonable proposals for relocation – the impact on that parent would have a detrimental impact on the welfare of the dependent children. A child’s happiness and security depends on the well-being of their primary carer; therefore, the court should be hesitant to interfere with their reasonable proposals. Other guidelines from Payne included whether the relocating parent’s proposal was genuine and realistic, whether the left-behind parent’s opposition was genuine and the extent of the detriment to that parent if leave were to be granted, and how far could this be offset by the child’s relationship with the relocating parent’s family and homeland.
The Payne guidelines were followed by the Hong Kong Court of Appeal in SMM v TWM (2010) and in the cases that came after. However, the Hong Kong Court of Appeal reconsidered these principles in ZJ v XWN (2018) in light of developments in England (K v K (2011)) and confirmed that the Payne guidelines were simply tools to assist the family judge in making a multifactorial assessment to decide what was in the best interests of the child, after taking into account the potential impact on both parents. There should be no presumption in favour of the primary carer.
In BA v BL (2019), the Hong Kong Court of Appeal considered the principles in Payne vis-à-vis arguments in favour of the status quo. The court held that: “Payne is not to be jettisoned. The relevant factors provide a structured framework in which the appraisal is to be made holistically.”
Where there is no clear primary caregiver, as in cases of shared care, it has been held that it will be harder for one parent to succeed in an application to leave (eg, BWBP v T-KP (2012)). Conversely, it has been held that the bar is lower for applicants who wish to return “home”, as discussed in RV v AA (2022).
Welfare checklist and other factors
The court will often refer to a “welfare checklist” as an aide-mémoire to assist in making decisions regarding what is in the child’s best interests. In Hong Kong there is no statute setting out such a list – although judges regularly refer to a list from the Proposed Children’s Proceedings (Parental Responsibility) Bill, which has been before the government since 2015, with no sign as yet of it coming into law. The list of factors the court may consider include:
The judge is not required to mechanically list every factor but, rather, to consider those that may be relevant to the case and conduct a “holistic balancing exercise” (JTMW v NAV (2020)).
In practice, when it comes to removal applications, relevant factors in determining what is in the best interests of the children include:
Typically, the weight given to one factor or another is a matter for the judge to decide upon hearing all the evidence. The appellate court is usually reluctant to interfere.
Children’s wishes and the Social Welfare Report
The children’s wishes were considered by the Hong Kong Court of Appeal in YSYM v LHB (2020). In this case, the children were aged 13 and 14. It was found that the family judge had failed to take into account the strong wishes of the children to study overseas, which had been unequivocally expressed in the Social Welfare Report. The judge had also been unjustified in her decision not to allow the welfare report to hold significant weight, in view of the fact that this social welfare officer had been assisting the family for a number of years and was well acquainted with them. In Hong Kong, the court does not have to follow the recommendations in the welfare report – although reasons should be given if not.
In RV v AA (2022), the father’s appeal against a removal from Hong Kong to Bangalore was upheld in part because the judge had prioritised the mother’s arguments in relation to finances over the expressed wishes of the children to remain – in particular, those of the elder child who was almost 16 years old. Here the Hong Kong Court of Appeal found that the family court should have considered the children’s “psychological preparedness” and that, “as a child aged 16, she was entering a phase of life when support from her peer group at school – in addition to (or even sometimes in place of) parents – may be crucial to how well she faces the academic and emotional stress of university entrance examinations”.
Developments in Hague Cases
Generally, Hong Kong follows the regime set out in the 1980 Hague Convention. However, some clarification was made with regard to the definition of “habitual residence” in the context of removal cases in the appellate court in JEK v LCYP (2015). The Hong Kong Court of Appeal provided a set of guidelines in respect of parental intention (and the weight that should be attached to it) and found as follows.
More recently, this case was considered and upheld in the Hong Kong Court of Appeal in BMC v BGC (2020).
Hague principles to be followed in child abduction cases involving non-signatory countries
In SWTQ v WE also known as CWC (2022), the mother issued an application for a return and non-removal order following the father’s abduction of the child to Taiwan. The child, aged five in this case, had been habitually resident in Hong Kong since birth. As Taiwan is not a signatory to the 1980 Hague Convention, the father argued that the Hong Kong court may not have jurisdiction to hear the mother’s application. The family court made a return order and a non-removal order and further held that the court could make any interim or final order for the custody and education of a child under Section 19 of the Matrimonial Proceedings and Property Ordinance.
The judge cited an earlier case in which it had been decided that “custody” could include relocation – namely, CAW v FHFD (2018). She also cited a case from the court of first instance, C v N (2015), in which it had been held that – as the Hague Convention did not apply – wardship could be invoked and that it was appropriate to apply the general principles of the 1980 Hague Convention in such cases, albeit with the following modifications.
Developments in relation to the PRC
Prior to the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance Cap 639 (“the Ordinance”), Hong Kong orders – whether relating to children or otherwise – were not enforceable in the PRC (and vice versa). Considering the proximity of Hong Kong and Mainland China, this gave rise to serious concerns in respect of child removal. Therefore, the passing of this law in February 2022 was welcomed by all. However, while the Ordinance provides comprehensive guidance on the enforcement of orders made by PRC courts in Hong Kong, there is limited information to date as to whether PRC courts will enforce Hong Kong orders.
In a case heard in the Hong Kong Family Court shortly before the Ordinance came into law (LCG v IK (2021)), the judge was concerned about whether an order of the Hong Kong court – including any undertakings given – would be enforced in the PRC. On that basis, therefore, the judge declined to make a relocation order.
It had been suggested by a single joint expert, who advised the parties and the court on the enforceability of judgments, that the parties could issue separate proceedings in the PRC and conclude a mutual agreement on custody and specific access. If the PRC judge accepted that the agreement was legitimate and feasible, they could issue a mediation certificate with the same effect in terms of validity and enforcement as a court judgment. The judge found that, on the imminent passing of the Ordinance, the proposed order would pass the legitimacy test but not necessarily the feasibility test. On balance, the judge found that it was in the child’s best interest to stay in Hong Kong where she was habitually resident and under the continuous care of her mother.
The Ordinance contains a provision for the enforcement of Hong Kong laws in the PRC in Schedule 3, which includes custody orders but does not mention return orders. For Hong Kong orders to be enforceable in the PRC, a certificate must be acquired from the Hong Kong court that made the order and then registered in the appropriate court in the PRC.
There is now a procedure for the enforcement of PRC orders relating to children who have been removed to Hong Kong.
Conclusion
Therefore, in removal applications, Hong Kong courts will only have one principle to follow – namely, the welfare and best interests of the children. Nonetheless, guidance has been given in case law that will assist the judges in the exercise of their discretion, which is wide in children’s matters. There will be no presumption in favour of either parent and each case will be assessed on the facts. Some clarification has been given with regard to Hague and non-Hague removals or wrongful retentions, especially in terms of habitual residence, return orders and non-removal orders.
As regards the enforcement of Hong Kong orders relating to children removed to Mainland China, the courts continue to demonstrate a cautious approach – although the passing of the Ordinance in 2022 is without doubt a positive step forward when it comes to such cases. It only remains to be seen now how easy it will be to return a child from Mainland China in accordance with a Hong Kong order where the child’s habitual residence had been Hong Kong.
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