Child Custody and Access in Hong Kong

Haldanes has successfully assisted the Respondent Father in the divorce proceedings to obtain a Joint Custody and Access Order of the children of the family.

The trial commenced in December 2019 in the Family Court. It was part-heard and was initially adjourned to March/April 2020. As a result of the COVID-19 pandemic, the general adjournment of court proceedings (the GAP) and the Father’s return to Europe, the part-heard trial was further adjourned to February 2021.

The solicitor in charge of this case is Patricia Liu, Partner.

Family Background

The parties married in 2008. There are two children of the family who were aged 12 and 9 respectively at the time of the trial. The parties separated in about December 2016 and in June 2017, the Mother issued the divorce proceedings based on the Father’s unreasonable behaviour. The Father returned to Europe in March 2020 permanently. The Judge granted leave for the Father to attend the part-heard trial in February 2021 remotely from Europe via video conferencing facilities and the Father’s solicitors were allowed to communicate with the Father to take instructions via WhatsApp during the trial.

Issues at The Trial – Sole or Joint Custody and Access

The Mother sought an Order for sole custody, whereas the Father asked for joint custody. There was no argument over care and control as it was agreed that the children shall continue to reside with their mother in Hong Kong under her primary care.

The main difficulty in this case was the Father’s acknowledged issue with drugs and the incidents of alleged child abuse/physical discipline during the divorce proceedings which resulted in sentences from the Magistrates’ Court. The Father was required by the Family Court to submit a monthly drug and alcohol test report throughout the divorce proceedings. The results of the drug and alcohol test reports submitted to the Family Court were all negative except for two drug test reports submitted in 2018 and 2021 respectively. It was concluded by the Single Joint Expert that the Father was exposed to a type of drug but it could not prove regular use or addiction. The amount found in the Father’s body was in the “low use or rather lower end of the low-use category”.

The main issues of contention were:

1. Should there be an order for sole custody as sought by the Mother or joint custody as sought by the Father?
2. What arrangements should be made for the Father’s access to the children, both in the short term and in the long term?

The Law on Children’s Issues and Custody Arrangement

The main provisions regarding children can be found in the Matrimonial Proceedings and Property Ordinance and the Guardianship of Minors Ordinance. Section 19(1) of the Matrimonial Proceedings and Property Ordinance states that:-

• 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, before, by or after the final decree;

The Courts’ first and paramount consideration is the best interests of the child/children in question as stated in section 3 of the Guardianship of Minors Ordinance.

Reference can also be made to the list of factors found in the Children’s Proceedings (Parental Responsibility) Bill, which is known as the “welfare checklist”. Although the checklist is not meant to be an exhaustive list, it is a useful guide for the Court to refer to when determining issues relating to custody and access of the children.

In addition, the recommendations made by the Social Welfare Reports will also be considered by the Court and they are generally considered to be persuasive. However, the Court is not bound by the recommendations of the reports when making a decision relating to the children’s issues.

The leading authority PD v KWW [2010] 4 HKLRD 191 (CA), in which Hartmann JA (as he then was) defined the concept of “custody” and “care and control”. In short, the parent who has custody of a child will have the right to make major and important decisions about a child’s life such as his/ her education, medical decisions and choice of religion. The parent who has care and control of the child is responsible for the daily care of the child and making routine day-to-day decisions for the child. The parent who does not have care and control will have access to the child and spend time with the child on a regular basis.

In most cases, Joint Custody Order is appropriate as it is accepted that, in principle, it is in the best interests of the children that both parents are able to play an equal role and have on-going parenteral responsibility and involvement of the children’s upbringing.

The Court’s Considerations in Deciding Child Custody in this Case

In this particular case, the following questions were considered:-

1. Whether an order for joint custody, which requires some level of cooperation between the parties, leave the children more vulnerable?
2. Should the father be granted joint custody in a situation like this, i.e. where on occasions he has acted in a manner which resulted in physical discipline of the children (on his case) or assault on them (on the mother’s case), and led for a while at least, to them being afraid of him?
3. Is the fact that the relations between the parties continue to be strained, not of itself be a reason to deny the father an order for joint custody, especially as the parties currently have no direct physical contact and live many miles apart?
4. Would it be more appropriate to make an “aspirational order” in this case?

The law requires a “balancing exercise” in which all relevant factors are considered in determining the best interests of the children. The fact that, as a result of the breakdown of marriage, relations between the parties are strained is not of itself a reason to refuse to make a joint custody order.

Decision on Children’s Custody and Access Arrangements

The Judge accepted the Father’s case that there were no custody issues that were in dispute at the time between the parties and it was found that the Mother’s communication with the Father was not as difficult after the Father returned to Europe. In line with the recommendations of the two Social Welfare Reports that joint custody should be granted, the Judge made an “aspirational order” for joint custody in the hope that this would acknowledge the role that the Father had in the life of the children and that would provide the parties with a basis upon which they might be able to make important decisions going forward.

As for the Father’s access with the children, although the Mother did not think that the Father should have additional access other than the existing video call access twice a week, it was ordered that in addition to the video call access twice a week during school term, the Father shall also have video call access on some special occasions and festivals. Starting from the school Christmas holiday 2021, subject to some conditions to be met by the Father, the Father can also have visiting access with the children in Hong Kong for two weeks over the school summer holidays and half of the other school long holidays in the presence of one of his family members or the Mother’s helper.