Part D - Types of orders for children
6.74The new English orders were designed to focus on the practical arrangements for fulfilling responsibilities for the child with a view to minimising disputes between the parents, rather than the previous focus on one parent controlling the other parent while he had the child physically with him. For ease of reference the various overseas provisions relating to relevant orders concerning children will be set out under the relevant types of orders.
6.75The Australian Family Law Reform Act 1995 amended their Family Law Act 1975 by the introduction of “parenting orders” and the abolition of the concepts of custody and access. These are residence orders, contact orders and specific issue orders. The latter order deals with any aspect of parental responsibility other than maintenance, residence or contact.730
6.76The language of custody orders implies something akin to ownership of a child. The fact that the common law, accepted in Hong Kong, gives the custodial parent virtually all the rights concerning the upbringing of the child inevitably leads to more cases being contested in the courts.731
6.77To say to the non-custodial parent that the only right he retains is to have access, and some undefined residual rights which he can only exercise if he finds out that these rights are being infringed by the custodial parent, is to invite continuing conflict between the parents. In some countries both parents retain guardianship rights and the right of custody has been confined to physical custody with a duty to consult the non-custodial parent on important matters affecting the upbringing of the child. We suggest that this does not go far enough, as retaining guardianship to cover both parenting and the situation of caring for a child after the death of a parent leads to confusion.
6.78It is also more consistent with our other recommendation on parental responsibility that the existing orders of custody be repealed. We recommend the repeal of provisions dealing with custody orders.
6.79Obviously there has to be a provision in the proposed legislation governing the child’s residence, and for a parent to take responsibility for a child on a daily basis. The English provision states that a residence order is an order settling the
730 See section 64B (6) of the Family Law Act 1975.
731 We noted the comment in the recent book, Hewitt (ed) Hong Kong Legal Practice Manual-Family, which states “custody equates to the legal parental rights and responsibilities borne by the parents of the child”. (1998) at 160.