Part I - Substantive Law and Practice
Background to the Present Law
1.1Part I of the Consultation Paper deals with the substantive law on guardianship and custody in Hong Kong and overseas. This chapter attempts to put the law on guardianship and custody in its social context. As so few guardianship disputes come before the courts, the focus will be on custody and access disputes arising from a divorce. A divorce must be seen both as a legal process and a psychological process that impacts on the child as well as the parents. This chapter will also look at the responsibility of the state to intervene and provide a choice of ways of handling disputes which are least detrimental to children and adults. It is also necessary to look at the broader framework of children’s rights and parental rights, within the context of international obligations under the United Nations Convention on the Rights of the Child or local obligations to comply with the Bill of Rights Ordinance (Cap 383).
Role of the State
1.2Traditionally, the judicial system has acted as the guardian of public and private interests when marriage breaks down. The welfare of children has been defined as the cross-roads at which those interests intersect.3 Clulow and Vincent query whether the best interests of children are promoted by arrangements agreed by the parents, or by arrangements suggested by others, such as divorce court welfare officers.
1.3This raises an issue of crucial importance about the boundaries between public and private responsibilities, and the effect of their interplay upon each other. When there is a dispute between parents about the custody of a child, the court has to look beyond the adjudication of parental rights in order to protect the child as a member of the community.4 However “no matter how well intentioned, wholesale intervention into the life of families is not likely to serve the interests of children”.5 An adequate legal framework for custody disputes must be permeated by an acceptance of the core values of the welfare of the child as a member of the family unit and the community.
1.4Goldstein, Freud and Solnit6 argued that parents should be presumed to have the capacity and responsibility to decide what is in the best interests of the
3 Clulow and Vincent, In the Child’s Best Interests; Divorce Court Welfare and the Search for a Settlement (1987), at 206.
4 Saskatchewan Law Reform Commission, Tentative Proposals for Custody Law Reform Part I, Substantive Law, Preface at iii, (August 1979).
5 Ibid at iv.
6 Before the Best Interests of the Child, (1979).