The 16 th World Conference of the International Society of Family Law Amsterdam, The Netherlands, 25 July to 29 July 2017 Family Impact Analysis of the …

The 16 th World Conference of the International Society of Family Law Amsterdam, The Netherlands, 25 July to 29 July 2017 Family Impact Analysis of the …内容摘要：

The 16th World Conference of the International Society of Family Law Amsterdam, The Netherlands, 25 July to 29 July 2017 Family Impact Analysis of the Proposed Legislation—Children Proceedings (Parental Responsibility) Bill in Hong Kong Dr. Yuk King LAU1 (PhD, RSW). Abstract Hong Kong’s existing laws on child custody and access define parent-child relationship in terms of the “rights and authority” of each parent toward their children. Observing the law reforms in many Common Law jurisdictions, The Children Proceedings (Parental Responsibility) Bill, was proposed in 2015. The concept of “parental responsibility” emphasizes the obligations rather than the rights of the parents, and stresses the rights of the children to maintain a continuing relationship with both parents after divorce if it is in the child’s best interests. This article reports a family impact analysis on the bill. The bill is assessed to have mixed impact on families that are undergoing or have undergone parental divorce. To maximize the potential benefits of the law reform and minimize its negative impacts for all family members, a well-integrated services system is of paramount importance. The promotion of the existing ordinance on domestic violence and its integration with the legal and relationship services in the family law system is also necessary. Last but not least, with the presence of possible negative impact, rigorous evaluation research should be undertaken in order to examine the actual impacts of the law reform so as to inform the necessary remedies. Keywords: Family Law, divorce, child arrangement, parenting arrangement, parental responsibility, Hong Kong The Existing Law on Child Custody and Access in Hong Kong 1 Professional Consultant of the Department of Social Work in The Chinese University of Hong Kong. She can be contacted at yklau@cuhk.edu.hk 1 In recent decades, Hong Kong has seen a trend of dramatic rise in its divorce rate. The crude divorce rate increased sharply from 1.1 per 1,000 people in 1991 to a historic high of 3.1 per 1,000 people in 2013 (Census and Statistics Department, 2015). Hong Kong’s existing laws on child custody and access define parent-child relationship in terms of the “rights and authority” of each parent toward their children (Labour and Welfare Bureau, 2015). Sole custody to mothers persists as the norm in Hong Kong, while fathers are allowed access to the children (Melloy 2012; Jockey Club Center of Suicide Research and Prevention, 2014). Although a parent is always entitled, regardless of his/her custodial status, to know and be consulted about the major matters of the children, “sole custody” is wrongly and persistently taken to imply exclusive control and ownership of the custodial parent and the exclusion of the noncustodial parent (Hong Kong Bar Association, 2012; Hong Kong Family Law Society, 2012). The same legal model was formerly adopted in a number of other common law jurisdictions, such as England, Scotland and Australia (Law Reform Commission of Hong Kong, 2005). This custody model is described as a winner-take-all approach (Parkinson, 2006). It has been evidenced that this ‘win/lose’ adversarial model polarizes the divorcing parties as well as the legal practitioners and causes greater harm to the children by escalating existing conflicts (Firestone & Weinstein, 2004). It also gives rise to gender inequality for parents of both sexes. While most custodial mothers hold the parental rights and are thus overwhelmed by the assumption of sole responsibility of their children, nonresident fathers suffer a disadvantaged and peripheral parental role in the lives of their children. Over time, this can lead to nonresident fathers’ diminishing contact with the children or even drifting out of children’s lives altogether (Law Reform Commission of Hong Kong, 2005). The Law Reform to Implement the “Parental Responsibility Model” in Hong Kong Over the last forty years, many European countries and Common Law jurisdictions shifted away from the emphasis on parents’ rights and towards children’s rights to have contact with both parents and their continuing parental responsibility (Antokolskaia, 2007; Parkinson, 2006, 2014). For instance, the United Kingdom has adopted a radical reform by abolishing the language of custody, guardianship, and access. As a replacement for them, the Children Act 1989 provided that each parent has ‘parental responsibility,’ which continues after the dissolution of a mar