The effect of divorce on the children of the marriage, especially children of tender years, is deeply felt, and most of such children desire that they could continue to be protected and guided by both parents. 
In Hong Kong, the usual options for custody orders, as between parents, are (1) sole custody, (2) joint custody, and (3) split custody. For the split custody order, the Courts are extremely reluctant to make such order except in exceptional circumstances. For this reason, we will focus on the sole custody and joint custody in the following paragraphs.
Custody of Children
Before all else, it is important to understand the concept of custody.
According to the Law Reform Commission of Hong Kong published in March 2005 its Report on Child Custody and Access(the “Report”), custody comprises the bundle of rights that parents have over their children. This includes the right to make all important decisions affecting the child, such as decisions regarding his education, religion and medical treatment, permanently removing children out of Hong Kong, etc.
In respect of the meaning of the concept of custody and care and control, Hartmann JA (as he then was) addressed it in detail in the Court of Appeal case of PD v KWW (the “Leading Case”). Regarding custody, Hartmann JA explained that a parent having sole custody of a child has the authority to make the final decision on such matters in respect of the child’s medical treatment, education and religion, and to safeguard and promote the child’s development and general welfare. A parent vested with custody has the responsibility of acting as the child’s legal representative.
Daily Care and Control of Children
Regarding care and control, Hartmann JA further explained that the decisions to be made by a parent who has care and control of the child are of a more mundane, day-to-day nature, decisions of only passing consequence in themselves but cumulatively of importance in moulding the character of the child. They include a host of decisions that arise out of the fact that the parent has physical control of the child and the responsibility of attending to the child’s immediate care. They include decisions as to what the child will wear that day, what the child may watch on television, when the child will settle down to homework and when the child will go to bed. They also include the authority to impose appropriate discipline.
From the interpretation given by Hartmann JA, the term “custody” means the rights to make final decision on matters affecting the child’s life and the person with care and control of a child is responsible for the day to day looking after of the child, such as getting the child up for school, making sure that he is fed and watered, that he does his does his homework, etc. However, the term “custody” may bear a more restricted meaning, in particular the right to physical possession and control of the infant’s movement. This is sometimes referred to as actual or physical custody or “care and control”.
How to Decide on Custody, Elements to be Considered?
Pursuant to section 3 of the Guardianship of Minors Ordinance (Cap. 13), the best interest (welfare) of the minor shall be the first and paramount consideration in relation to any order for the custody of a child.
In assessing the best interests of the minor, the Court must have regard to all the relevant factors. Section 3(1)(a) has only prescribed two specific factors that the Court must have regard to: (a) the minor’s views, if having regard to his age and understanding and to the circumstances of the case, it is practicable to do so; and (b) any material information including any report of the Director of Social Welfare available to the court at the hearing.
In considering what is the best interest of a child, the Report has recommended a “welfare checklist” which has been contained in the proposed legislation, namely Children Proceedings (Parental Responsibility) Bill of 25 November 2015 (the “Checklist”) and which are:
- the ascertainable views of the child concerned (considered in the light of his age and understanding);
- the child’s physical, emotional and educational needs;
- the nature of the relationship of the child with each of the child’s parents and with other persons;
- the likely effect on the child of any changes in the child’s circumstances;
- the child’s age, maturity, sex, social and cultural background and any other characteristics of the child which the court considers relevant;
- the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
- any harm which the child has suffered or is at risk of suffering;
- any family violence involving the child or a member of the child’s family;
- how capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
- a broader formulation along the lines of the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
- the range of powers available to the court under this Ordinance in the proceedings in question; and
- any other fact or circumstance that the court thinks is relevant.
Notwithstanding the Checklist is not yet part of Hong Kong legislation that the judges are not required to mechanically list every factor to demonstrate that they have considered the same, the Checklist has been commonly referred to by judges as an aide-memoire. In ZJ v XWN, the Court of Appeal confirmed that the Checklist is a tool to assist a family judge in making the multi-factorial assessment to reach a result which is in the best interest of the child after taking account of the potential impact on the parents.
Joint Custody
In most cases, orders of joint custody are appropriate because such orders are in the interests of children, especially those of tender years.
The Report describes joint custody as “where the court grants custody to both parents, although physical care and control is usually granted to only one of them. Liu explains the rationale behind the joint custody order: that instead of one party being given the right to decide important matters affecting the upbringing of the child, both parties are given that right. “Such order symbolises divorced or separated parents playing a joint role in the upbringing of the child, and neither is excluded.”
Hartmann JA in the Leading Case concurred with joint role in the upbringing of the child by the parents and observed that the long-term best interests of a child are invariably best protected if, despite the breakdown of the marital union, both parents are able to continue to play an equal role in making important decisions that will determine the child’s upbringing. He took US and UK as examples and further explained that, in UK, the continuing parental responsibility of both parents is emphasized even if an order has been made that the child will reside with only one of them, similarly; in US, the US courts routinely grant joint custody orders unless one parent is clearly found to be unfit.
It is apparent that it is generally accepted that children benefit from maintaining communication with both parents nowadays.
However, it may not be appropriate to make an order of joint custody if the parents are unable to work together effectively. The leading judgment was made by HHJ Melloy in S v Z which was adopted in the Leading Case. HHJ Melloy in S v Z said at paragraphs 14 and 15:
- “Joint custody means that the parents should be able to make the major decisions concerning their children’s life together. Although there have been cases where joint custody has been ordered where the parties find it difficult or indeed impossible to co-operate with each other, the general rule of thumb is that joint custody should only be ordered where the parents are able to work together effectively.”
- “Sometimes orders for joint custody are aspirational. They are made in the hope that the parties’ will be able to work towards co-operating with each other in the future.”
Rogers VP (as he then was) in the Appeal Case Y v P concurred with the opinion that whether or not a joint custody order is workable depends very much on whether the parents can co-operate. He also considered that a court may refuse to grant joint custody if there is no reasonable prospect that the parties will co-operate because an order of joint custody can be a recipe for disaster and contrary to the best interest of the child. He further explained that despite a joint custody order may be made for the purpose of encouraging parents to overcome their differences and co-operate for the benefit of their children, if it is clear that a joint custody order is not workable, it seems unlikely that the Court will nevertheless make such a joint custody order solely for the purpose of encouraging the parties to overcome their differences or to recognize the continuing role of the parties because the best interests of the children is essential.
Hartmann JA in the Leading Case adopted a similar approach as HHJ Melloy in S v Z and held that “the issue for the judge is whether, with the court proceedings concluded, it is reasonably anticipated that the parents will be able to agree on the questions of importance that will determine the upbringing of their child… In determining this issue, the judge is entitled to proceed on the presumption that competent, loving parents possessed of sufficient objectivity to be able to make rational decisions in the interests of the child will be able to cooperate with each concerning matters of importance in the upbringing of the child”.
From the above, it reveals that there does not have to be perfect harmony or total agreement between parents before the Court can consider making an order for joint custody, the key questions for the Court are: (1) whether it is reasonably anticipated that the parents will be able to agree on the questions of importance that will determine the upbringing of their child. In other words, it seems that it will be insufficient for one parent to rely on the other’s uncooperative manner to seek an order for sole custody, and (2) whether a joint custody order will lead to argument and discord between parents that will harm their child.
Sole Custody
Before the case of Dipper v Dipper, there was a misperception that an order for sole custody to one parent gives the message that one parent is in charge to the exclusion of the other parent, or, the parent with sole custody “wins” the right to determine all matters big and small in the upbringing of the child while the non-custodial parent “loses” the right to have any say in the child’s upbringing. However, such misunderstanding was quashed in Dipper v Dipper in which Ormrod LJ and Cumming-Bruce LJ said:
“Neither parent has any pre-emptive right over the other. If there is no agreement as to the education of the children, or their religious upbringing or any other matter in their lives, that disagreement has to be decided by the court …. The parent is always entitled, whatever his custodial status, to know and be consulted about the future education of the children and any other major matters…”
In respect of the characteristic of sole custody, Hartmann JA in the Leading Case adopted Dipper v Dipper and gave the following observations:-
- if sole custody is given to one parent, that custodial parent is not thereby given an absolute and independent authority to act without further reference to the non-custodial parent;
- a non-custodial parent has the right to be consulted in respect of all matters of consequence that relate to the child’s upbringing. While the right to be consulted does not include a power of veto, it is nevertheless a substantial right. It is not merely a right to be informed, it is a right to be able to confer on the matter in issue, to give advice and to have that advice considered;
- in the event of disagreement with the non-custodial parent, the custodial parent is given the authority to make the final decision. The final decision should only be made after due consultation and, if the final decision that is made is considered by the non-custodial parent to be inimical to the child’s best interests, the court may be called upon to determine the matter;
- the giving of sole custody to one parent does no more than recognise that, in the circumstances of the breakdown of the marriage, the best interests of the child are secured by giving to that parent the authority, if necessary, to make a final decision concerning matters of consequence in the upbringing of the child but only after the other parent’s views have been given full and rational consideration;
- an order of sole custody does no more than add a qualification to the otherwise joint endeavour of both parents in raising their child, that qualification being that the final decision will rest with one parent; and
- there is a thin line between sole custody and joint custody.
Accordingly, there is only a thin line between sole custody and joint custody, the custodial parent will remain obliged to discuss with the non-custodial parent on matters affecting the child’s life and to weigh in the balance all rational advice that was given. In other words, although the non-custodial parent has no power of veto, the custodial parent will not be able to determine or make the important decisions about a child’s life free of any involvement of the non-custodial parent.
Conclusion
A joint custody order enables both parents to participate in the children’s upbringing. Whilst the best interest (welfare) of the minor shall be the first and paramount consideration in relation to any order for the custody of a child, the imperative is what is best for the child, not what is best for the parents.
In determining whether to seek a joint custody or sole custody by the parents, the parents shall give full and adequate regard to all the relevant matters in the Checklist and carry out a holistic balancing exercise in considering the best interest of the Child.