"Hong Kong’s Children’s Proceedings (Parental Responsibility) Bill: The Need for Further Reform and Multi-Disciplinary Collaboration"
Abstract: Many comprehensive reviews of family justice systems have been undertaken in common law jurisdictions over the past 20 years, all seeking to provide more meaningful affordable access to justice for families and children. Hong Kong is also under pressure to enact legislative reforms originally proposed in 2002-2005 which deal with children’s matters and more broadly, with family and matrimonial issues. Legislative reform was anticipated when the Government announced the long awaited Children’s Proceedings (Parental Responsibility) Bill (“Children’s Bill”) in 2015. After significant public consultation, however, the Government announced in 2018 that it would delay implementation of this draft legislation. Unfortunately, Hong Kong is still governed by an out-dated and confusing family law system that is failing its children and families. While family law reform remains stalled in Hong Kong, other jurisdictions are reviewing their family justice systems and have introduced new family laws. The federal Government of Canada and the province of Manitoba have recently enacted new family legislation. Singapore and the UK enacted family law reforms in 2014 with the UK now considering further extensive reforms. Scotland, Australia and New Zealand are all currently in the midst of comprehensive family justice reviews.
This article evaluates the need to reform Hong Kong’s family justice system. Particular focus is on promoting children’s best interests, ensuring children’s voices are heard, providing support to high conflict families, addressing family violence issues and enhancing child support services. The provisions of the draft Children’s Bill are analysed and the current lack of comprehensive family justice reform discussed. The Government’s cautious approach to legislating doctrinal reform away from a “custody, care and control” and “access” approach to that of “parental responsibility” is reviewed. Suggestions for further revision are made, with reference to comparative models of legislative reform and best measures and practices. As in many jurisdictions, the challenge in Hong Kong is transforming the rhetoric of children’s participation into successful effective practice. Some Judiciary-led initiatives are discussed, along with “views of the child” reports and independent child advocates. The importance of providing multidisciplinary family support measures assisting children and families going through separation and divorce is considered. Finally, the creation of a formal independent “Hong Kong Family Justice Commission” is proposed to implement effective and timely family law reform and to help integrate more comprehensive multidisciplinary responses and services.