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Where does family responsibility end and state responsibility begin?16

1.17A further issue which Hong Kong law has not addressed is whether its concentration on the two parent nuclear family reflects the cultural reality of the importance in children’s lives of grandparents and other relatives, in particular where the child is physically residing with this extended family.

Divorce as a complex process

1.18Lawyers tend to see divorce as a legal process whereby a couple dissolve their marriage contract and then become free to remarry.17  Therapists see divorce as more of a psychological process.  A more recent perspective is to see divorce from an ecological perspective.  This views divorce :

“as a process composed of the interaction of a variety of elements, including statutes and psychological states, but also patterns of interpersonal relating ... child development and the risks to its normal progression, demographic factors (such as ethnicity and income), relations among peers, and community resources (such as the involvement of professionals and agencies)”.18

Stages of divorce

1.19Researchers categorise the process of divorce in different terms.  Bohannan19 suggested there are six categories: emotional, legal, economic, co-parental, community and psychic.  Wiseman20 referred to five psychological stages - denial, loss, anger, reorientation and acceptance.  It is important to put the resolution of custody cases in this broader context.  If parents are going through these various psychological stages, and at different times, then what impact has this on the parenting of children during separation and divorce?  Are parents really in a fit state to decide to make final decisions about custody of children if they are locked in denial, loss or anger?  Is a parent who insists on litigation over the children prompted by anger rather than reason?

1.20Where counselling is available, it may enable a parent to recognise that emotion is clouding his judgment.  A counsellor may, for instance, suggest that a client work through his anger before making a decision committing himself to a contested hearing.  Unfortunately, the court has no power to refer parties to counselling.  The function of the social welfare officer is to investigate the family and assess the parenting of the children, which is separate from that of counselling the parties to “uncouple” the spousal relationship.

16 Idem.

17 Paragraphs 1.14-1.36 and 1.43 were taken from an unpublished dissertation by Paula Scully, Obstacles to Referral, Planning and Implementation of Family Mediation as a Dispute Resolution Process in Hong Kong; Reflections based on Foreign Systems, April 1996.

18 Irving and Benjamin, Family Mediation - Contemporary Issues (1995), 9.

19 Divorce and after (1971).

20 “Crisis theory and the process of divorce”, Social Casework, 56(4), (1975), 205-212.

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