child custody

The family courts have broad jurisdiction to deal with the welfare of children under the provisions of the Guardianship of Minors Ordinance (Cap 13), the Separation and Maintenance Orders Ordinance (Cap 16), the Matrimonial Causes Ordinance (Cap 179) and the Matrimonial Property and Proceedings Ordinance (Cap 192). Additionally, the High Court’s has broad powers under its inherent jurisdiction including wardship.

In parental disputes, generally the courts are concerned with making orders for custody, care and control, and access. These orders are distinct from questions of financial responsibility for children (i.e. ‘maintenance’). Access is the right to have contact with the child, it may be unsupervised or supervised (i.e. where there are concerns about the impact of contact on the child); undefined (sometimes ‘reasonable’ or ‘generous’) or defined (i.e. at times specified in the order); staying (a.k.a. overnight) or ‘day-time’. Care and control is the right to make day-to-day decisions about the child; it should not be confused with “shared care” and the notion of the primary caregiver. Custody is the right to make all important decisions affecting the child and it is generally awarded to one parent (“sole custody”) or shared between both parents (“joint custody”): see PD v KWW (Joint Custody, Care and Control) [2010] 4 HKLRD 191; [2010] HKCA 172.

The paramount consideration for the court is always the welfare (or ‘best interests’) of the child, this is known as the Welfare Principle (see section 3 of Cap 13). In determining the best interests of the child, the court will generally have regard to the Welfare Checklist, i.e. the ascertainable wishes and feelings of the child concerned (considered in the light of the child’s age and understanding); the physical, emotional and educational needs of the child; the likely effect on the child of any change in the child’s circumstances; the child’s age, sex, background and any characteristics of the child’s which the court considers relevant; any harm the child has suffered or is at risk of suffering; how capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs; the range of powers available to the court in the proceedings in question; and the general principle that any delay is likely to prejudice the welfare of the child: see H v N [2012] 5 HKLRD 498; [2012] HKCFI 1533.

To support mothers and fathers and ensure the best interests of children, the courts have adopted Practice Direction 15.13, which created the Children’s Dispute Resolution (CDR) scheme. The scheme applies to almost all disputed children’s matters, and provides that disputes must be submitted to the CDR procedure unless the court orders otherwise. The first stage of the scheme is a preliminary directions hearing before a judge (the Children’s Appointment), preceded by the exchange of a series of simplified and children-specific documents including a Form J (i.e. ‘Children’s Form’) (attached to Practice Direction 15.13), a sworn statement relating to the arrangements for children. The court will then make directions for the further conduct of the case and in most circumstances order a CDR hearing before referring the matter to trial. The CDR hearing is a form of alternative dispute resolution (‘ADR’), where the parties will have a chance to rehearse their arguments before the judge, who may give indications about her/his approach, and who will try to conciliate between parties to achieve settlement.

For more information on custody, including updated information on schools and our childhood timeline, see the relevant pages of Duxbury Etc.