children and the family. Parents should have the first opportunity to meet the needs of their children and maintain family ties without state intervention. Folberg7 argued that the state doctrine of parens patriae provides for a responsibility for the welfare of the children only when parents cannot agree or cannot adequately provide for them.
1.5“Divorce has been constructed as a prominent social issue, a symptom of conflicts which have activated, and been activated by a shifting personal, social, and economic landscape.... Justifications for State involvement in the private sphere of family life are usually expressed in terms of the need to protect children from harmful influence and experience.... It is proper for the State to ensure that the interests of children exposed to its [divorce] effects are adequately safeguarded. However, when the State intervenes in family life it effectively undermines the authority of parents and encourages an abdication of their responsibilities.... It is analogous with the iatrogenic effects induced by some forms of medical treatment.... The public argument for overriding parental responsibility is justified in terms of the interests of the community as defined by the knowledge and beliefs of the day”.8
1.6It can be seen that there is much controversy about the degree to which the state should intervene in the lives of children and the family. There is a constant tension between the extent of the substantive powers the state should have to intervene in the family and how it exercises its discretion in implementing those powers.
Bill of Rights Ordinance (Cap 383)
1.7The Bill of Rights Ordinance (Cap 383) lays down some parameters for the exercise of the powers of the state which intrude into the lives of family members. Article 14 of the Bill of Rights Ordinance (Cap 383)9 provides that “no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence [and] ... everyone has the right to the protection of the law against such interference or attacks.” Article 19 (equivalent to article 23 of the International Covenant on Civil and Political Rights (ICCPR)) acknowledges that the family is the natural and fundamental group unit of society and thus entitled to protection by society and the state. It also states that in the case of dissolution, provision shall be made for the necessary protection of children. It recognises that spouses have equal rights and responsibilities as to marriage and dissolution.
1.8Article 20 (article 24 of the ICCPR) ensures that “every child shall have the right to such measures of protection as are required by his status as a minor, on the part of its family, society and the State”. These provisions must be taken into account when we proceed to analyse the various ordinances, so as to ensure that any proposals for reform are compatible with the letter and the spirit of the Bill of Rights
7 “Divorce Mediation: Promises and Problems”, paper prepared for Midwinter Meeting of ABA Section on Family Law, (Jan. 1983), contained in Goldberg, Sander and Rogers, Dispute Resolution, (2nd ed, 1992), at 311.
8 Clulow and Vincent, supra at 17-18.
9 Article 17 of the ICCPR.