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Different Treatment on Children’s Issues between Hong Kong and PRC

Rita Ku

Partner

Withers Hong Kong

Libby Guo

Partner

Guangdong Gain Law Firm, Shenzhen, China

6th World Congress on Family Law and Children’s Rights

17-20 March 2013, Sydney, Australia

Facts

• 1 July 1997 – transfer of sovereignty over Hong Kong from the United Kingdom to China

• Economic integration with Mainland China

• Major cooperation at the governmental level

• “2-way Permit”: allows Mainland residents to visit Hong Kong

• Quota on the number of tourists from PRC to HK was abolished in 2002

Year No. of Arrivals from PRC % share of total

2011 28,100,129 67%

2003 8,467,211 54.5%

2000 3,785,845 29%

1997 2,364,223 21%

1990 754,376 11.5

1986 363,479 9%

Statistics on Marriage and Divorce in HK (1986-2011)

• 1/3 of divorces handled by HK courts involve a Mainland party

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Year

Number

Total no. of Marriages Cross-border marriages registered in HK Divorce Decrees granted

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HK Laws on Custody, Care and Control, and Access

HK Laws on Custody, Care and Control, and Access

• Dates back to the 1970s, based on legal model formerly adopted in other common law jurisdictions

• Parental “rights” and “authority” over the children

• Children’s best interests are of paramount consideration, not the parent’s authority

• Equality of parents: - no discrimination of role or gender

• Both statutes and case laws• Concepts not defined in statues

• The Courts have wide discretions

• The key statutes are: -• Guardianship of Minors Ordinance (Cap. 13) (“GMO”)

• amended in August 2012 (minor amendments)

• Matrimonial Causes Ordinance (Cap. 179) (“MCO”)

• Matrimonial Proceedings and Property Ordinance (Cap. 192) (“MPPO”)

• Separation and Maintenance Orders Ordinance (Cap. 16) (“SMOO”)

• Section 2 of the MPPO (Cap 192): -• “child of the family” in relation to a marriage means “a child of both those

parties and any other child who has been treated by both those parties as a child of their family”

• Section 19 of MPPO (Cap 192): -• “the court may make such order as it thinks fit for the custody and

education of any child of the family who is under the age of 18 in any proceedings for divorce, nullity of marriage or judicial separation…”

• Section 3 of the GMO (Cap 13): -• Before the August 2012 amendments: - “in relation to the custody or

upbringing of a minor…the court shall regard the “welfare” of the minor as the first and paramount consideration and…shall give due consideration to the “wishes” of the minor if…it is practicable to do so…”

• After the August 2012 amendments, the terms “welfare” and “wishes” had been replaced by “best interests” and “views”

Custody

• Bundle of rights that parents have over their children, which includes: -

• “care and control”; and,

• Right to make all important decisions affecting the child in relation to health,

development and general welfare (i.e. education, religion, medical treatment, and

place of residence)

• The responsibility of acting as the child’s legal representative

• Sole custody vs. joint custody: -

• Schools not usually send a child’s school reports to the non-custodial parent

• Non-custodial parent’s capacity to give consent to the child’s medical treatment may

become an issue

• Movement towards joint custody

• PD v KWW [2010] 5 HKC 543

Care and Control

• The right to physical possession

and control of the infant’s

movement, or daily care and

control -- day-to-day physical

care and supervision of the

children

• Developments towards shared

care and control

Access

• The right to have contact with

the child, such as through

letters, emails, telephone calls,

visiting the child, taking him out

or having him to stay from time

to time

P v P (Children-Custody) [2006] 2 HKFLR 305

• Mother was a housewife; Father was an airline pilot

• 20-year marriage, 6 children (of which 2 would not be of concern to the Court as they were 18 and 17 years of age)

• Father sought joint custody and joint care and control of the children

• Mother sought sole custody care and control of the children, and permanent removal to Canada

• Long and bitter litigation between the parties; parties fight on almost everything

• The Father has deep rooted distrust of the Mother: constant belittling of and undermining of her ability, his inability to see fault in himself, and his firm belief that the Mother is suffering from Factitious Disorder

P v P (Children-Custody) [2006] 2 HKFLR 305

• Family Court gave sole custody and care and control to the Mother, with defined access to the Father, and postponed decision on permanent removal application: -

• Joint custody and/or shared parenting would be the most ideal arrangement for children in normal situation where there is a modicum of understanding and cooperation between the parents

• Joint custody was rarely made in HK until recently, and joint custody care and control was almost unheard of

• The most commonly made order is sole custody to parent with a bundle of parental rights over the children, including their physical care and control and the right to make all important decisions on the children’s upbringing without consulting the non-custodial parent – this caused difficulties and created conflicts between parents in some cases and attracted criticisms

• Not necessary to show exceptional circumstances exist before a joint custody care and control order may be granted. The requirement is to demonstrate that such order is in the best interest of the children.

P v P (Children-Custody) [2006] 2 HKFLR 305

• Family Court gave sole custody and care and control to the

Mother, with defined access to the Father, and postponed

decision on permanent removal application (cont’d): -

• There is no need to be total agreement between the parties for a

joint custody Order be granted, but the Father has failed to show

willingness to cooperate with the Mother

• For joint custody to work, there must be understanding and

cooperation, if not also mutual trust and respect, between the

parents

SEB v ZX (Custody) [2007] HKFLR 165

• Father was an American and the Mother Chinese

• 2 children of the family: 11 and 13 years old at the date of the hearing

• Father sought sole custody and care and control

• Mother sought joint custody with joint care and control, or “no order” as

in the English Children’s Act 1989, suggesting an equal share of the

children’s time

• Mother maintained that she had been the primary carer throughout the

marriage

• Judge found that the Mother was volatile and had difficulty controlling

her emotions, and she was in need of psychological help

SEB v ZX (Custody) [2007] HKFLR 165

• Family Court granted sole custody to the Father and shared care and control to both parents: -

• The children were of an age where their views must be taken into account

• Considerable concern over the Mother’s ability to cope with the children

• Role of 3rd party caregivers is important, although the natural parent is to be preferred

• “no order” was not available under the present legislation -- the “no order” principle is premised upon both parties retain join parental responsibility – not the case in HK

• in any event, “no order” would require the consent of the parties and be in the best interest of the child – not appropriate in this case

• High degree of conflict between the parties

• The children’s expressed wish for “clarity and certainty”

• Joint custody is only appropriate where both parties can cooperate

• No order made for access per se, but a structure to their time with each parent was given

PD v KWW [2010] 5 HKC 543

• Mother was raised in Malaysia and is a Malaysian national

• Father was born and raised in Belgium

• 1 child of the family: L, who was 9 years old at the time

• Parties separated in 2007, and divorce proceedings were issued in 2008

• Mother was distressed by the discovery of the Father living with another woman, who is now the Father’s fiancée, but no evidence of their inability to communicate concerning matters of real consequence in L’s life

• Joint custody of L was granted by the Family Court

• Mother appealed against the Order and sought sole custody

PD v KWW [2010] 5 HKC 543

• Court of Appeal dismissed the Mother’s appeal in respect of sole custody:• Large measure of misunderstanding as to the nature and extent of the concepts of

sole and joint custody

• Misconception: parent with sole custody “wins” the right to determine all maters big and small while the parent without custody “loses” the right to have any say in the child’s upbringing

• Thin line between sole and joint custody

• Sole custody does not give an absolute and independent authority to act without further reference to the non-custodial parent

• Non-custodial parent has the right to be consulted, but does not include a power of veto

• In the event of disagreement with the non-custodial parent, the parent with sole custody has authority to make the final decision, but only after due consultation is made

• If the final decision is considered to be inimical to the child’s best interests by the non-custodial parent, he/she can ask the Court to determine the matter

• only an added qualification to the otherwise joint endeavor of both parents in raising the child

PD v KWW [2010] 5 HKC 543

• Court of Appeal dismissed the Mother’s appeal in respect of sole custody

(cont’d): -

• Thin line between sole and joint custody (cont’d)

• Potential practical significance: - parent with sole custody could determine the

place of residence of the child, whilst the other might have the right to be

consulted, did not have the power of veto – significance in removal applications

• Welfare of the child remained as the first and paramount consideration – strained

relations between parents is not itself a reason to refuse an order of joint custody

• In determining whether the parents would be able to agree on questions of

importance relating to the upbringing of the child, the judge was entitled to proceed

on the presumption that competent, loving parents possessed sufficient objectivity to

be able to make rational decisions in the interests of the child

• Care and control to one parent and access to the other: - effectively awarding a form

of shared care and control, allowing the parent to assume care and control for the

time when the child is in his/her physical custody

• Right of access is to ensure continued bonding between parent and child

H v N [2012] 6 HKC 591

• Father was born and raised in HK

• Mother was born and raised in PRC

• 2 children of the family: A and B

• Interim care and control was given to the Mother by consent

• Dispute: whether Father should be given defined access

• A has indicated that she wishes to live with the Mother

• 1st hearing on section 3(1) of the GMO (Cap 13) since its amendment

• Difference in terminology: -• “welfare” vs “best interests”

• “wishes” vs “views”

• “welfare checklist” in the English Children Act 1989: -• Wishes and feeling of the child considered

• His physical, emotional and educational needs

• Likely effect on him of any change in his circumstances

• His age, sex background and any characteristics of his which the court considers relevent

• Any harm he has suffered or is at risk of suffering

• Capability of each of his parents, and any other person in relation to whom the court considers relevant, is of meeting his needs

• The range of powers available to the Court

H v N [2012] 6 HKC 591

• Court of First Instance granted interim care and control to the Mother, with defined access to the Father: -

• The court would always put competing parents on an equal footing

• Role or gender discrimination is not permissible

• Reflected in shift in social values concerning parental responsibilities

• Change in terminology did not affect the substance of the law – the expressions were synonymous

• “best interests of the minor” – not simply a matter of putting the minor’s best interests on top of the list. It involved careful evaluation of all relevant circumstances and merits and demerits of the alternate proposals as they seemed likely to bear upon the minor’s interests

• “best interests” was not defined: -

• Given widest meaning

• Impossible to give an exhaustive statutory definition that embraced every eventuality

• Flexibility allow the court to identify and look into all the welfare issues as they arose from the circumstances

H v N [2012] 6 HKC 591

• Court of First Instance granted interim care and control to the Mother, with defined access to the Father (cont’d): -

• More or less become a standard practice in the Family Court to make use of the “welfare checklist”

• Use of the UK “welfare checklist” subject to 3 caveats: -

• Absent of any statutory underpinning in the GMO, the Courts are under no duty to have regard to the checklist. The use of the same is entirely a matter for the Judge

• When applying the checklist, the Judges are not subject to laborious necessity of expressly relating their findings in every case to its specific provisions one by one

• The checklist is an aide-memoir and not meant to be exhaustive. Judges are entitled to and should have regard to all other relevant factors even if they are not on the list

• “wishes of the minor” – vary depending on the circumstances of the case. It has to be the decision of the Court, not the minor.

• If recommendations of the SWR are not followed, the Judge should say why he had not done so, but he’s not under any further duty to spell out the reasons fro departure, unless his reasons are manifestly wrong

• Access is a basic right of a child, rather than that of the parent. Enabling the child to keep in contact with his/her parents is essential to the minor’s emotional and material growing up in the long term.

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PRC Laws on Children’s Issues

History of Custody Law in PRC

• Early in the feudal period, there were no custody fights between parents after

divorce

• The children would be raised by his/her paternal side of the family

• Now, social and family status of women have improved, and women are now

entitled to issue divorce and to ask for the custody of their own children

• Usually, when there are 2 or more children of the family, each of the parents will

have custody of one or more of the children

• Traditional concept: the Father would have custody of the boys as they are the

ones who would continue expanding the family name

• 1980’s: - one-child policy

• Vigorous battles between parents over the single child of the family in divorce cases

PRC Laws on Children Issues

• No statutory definition of “custody”

• Article 36 of the Marriage Law of the PRC: -

• Relationship between parents and child will not be set aside because of divorce

• After divorce, the parents still have the right and responsibility towards upbringing

and education of the child

• Custody should be favorable to the child’s healthy physical and mental development

based on their legal rights and interests

• Children during lactation shall be brought up by their mother after divorce

• The age of the child would usually be the first consideration of the court.

Usually: -

• Under 2 years old: custody to the mother

• 2 to under 10 years old: the courts will have regard to the living situation of the child

during the course of marriage

• Over 10 years old: the child’s wishes

PRC Laws on Children Issues

• Other factors to be considered: -

• Ability to have more children in the future

• How much time the child used to spend with each of the parents

before the breakdown of the marriage

• The respective health of the parties

• Extended families

• Gender of the child: usually girls to the mother, and boys to the

father

• Principle of equality between the parents: if there are 2 children of

the family, each of the parties would have custody of one child

PRC Laws on Children Issues

• Access: right of the non-custodial parent to contact the child after

divorce – not the child’s right

• Visitation or staying access

• Letter, video, telephone, gift, exchange of photos and so on

• The custodial parent is obliged to facilitate access

• The exercising of right of access must be in the best interest of the

child

• The child’s views should be taken into account if the child is able to

choose how access should be exercised

• Access should not be forced on the child

PRC Laws on Children Issues

• Age of the child is relevant: -

• Under 2 years old: access to take place at the home of the child

• Between 2 to 10 years old: access can take place at the home of the child

or outside, and the child’s views are not to be sought

• Over 10 years old: the child’s views should be considered and access

should be carried out by the child’s consent

• Refusal to cooperate or to facilitate access by the custodial parent may

be arrested or fined, and the Court may enforce access

• Penalties are not clearly defined

• Cannot force the child to return to his/her residence and cannot force

access on the child

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Cross-border Issues

Cross-border Issues

• Mainland Judgments (Reciprocal Enforcement) Ordinance (Cap

597)

• Covers only judgments that require payment of money in business

contracts

• Family matters are excluded

• No mechanism for reciprocal enforcement of children orders

between HK and the PRC

• Parallel proceedings in both jurisdictions, or re-litigation

• Difference in the Courts’ power

Cross-border Issues

• Hague Convention does not apply in the PRC• If the Child is in PRC: -

• Guardianship or custody orders made in HK do not have the force of law in the PRC and cannot be enforced there

• HK government can only seek cooperation of PRC authorities to help find the child and encourage the abductor-parent to return the child to his/her jurisdiction of habitual residence

• How to locate the child in China, which has a population of over 1.35 billion (2012 estimate) and an area of over 9.7 million km2, and with no centralized system for population information or movements between provinces/cities?

• If the Child is in HK: -

• Order of wardship can be obtained from the HK Courts

• Return of the child is usually only achieved by voluntarily return of the child by the abductor-parent, or through initiating legal proceedings in HK

• HK Courts have been reluctant to allow a party to remove a child to China for holiday purposes

Cross-border Issues

• HK LegCo Panel on Administration of Justice and Legal

Services initiated discussion with the PRC side on the need to

enter into an arrangement on cooperation in matrimonial

matters in May 2011

• Supported by the HK Bar Association and the HK Law Society

• No fixed time frame

Questions?