VIII. Custody of children and guardianship
Article 19 of the Convention requires States Parties to “take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child” . Protective measures should include social programmes to support the child and those caring for the child for preventing, identifying, reporting, referring, investigating, treating and for following up on child maltreatment by judicial involvement where necessary.
A. Appointment of a guardian by the Court
The Protection of Children and Juveniles Ordinance (PCJO), Cap. 213 is a key Ordinance in the protection of children and juveniles. It is a close companion to the Juvenile Offenders Ordinance. The words “child” , “young person” and “juvenile court” have the same meaning in both ordinances. A child is a person under 14 years of age. A young person is a person who has attained 14 years of age but is under 16 years of age. A “juvenile” for the purposes of the PCJO is a person of 14 years of age or upwards but under the age of 18 years. A juvenile court for the purposes of the PCJO is a juvenile court according to the Juvenile Offenders Ordinance .
Under section 34 of the PCJO , a juvenile court, either on its own volition or upon the application of the Director of Social Welfare (“the Director”), which is satisfied that any person of or above the age of seven years brought before the court, or any other person under the age of seven years, is a child or juvenile in need of care or protection, may appoint the Director to be the legal guardian of such child or juvenile. Alternatively, the court may commit the care to any person, whether a relative or not, who is willing to undertake the care of the child, or to any institution which is willing to do so. The court can also order parents or guardians to enter into a recognizance to exercise proper care and guardianship or place the person for a specified period, not exceeding three years, under the supervision of a person appointed for the purpose by the court.
The PCJO enables police officers and social workers to take action to protect a child or juvenile in need of care or protection. Police officers and social workers authorised by the Director have the responsibility to intervene to protect a child or juvenile in need of care or protection. According to section 34(2) of the PJCO , a child or juvenile in need of care or protection is a child or juvenile who:
- has been or is being assaulted, ill-treated, neglected or sexually abused;
- or whose health, development or welfare has been or is being neglected or avoidably impaired; or
- whose health, development or welfare appears likely to be neglected or avoidably impaired; or
- who is beyond control, to the extent that harm may be caused to him or others; and
- who requires care and protection.
In those situations a care or protection order may be sought from the Juvenile Court. In deciding whether or not to apply for a care or protection order all the circumstances of the child, his or her family, and any possible adverse long term effects on the child or juvenile, must be considered.
Article 9 of the Convention requires States Parties to ensure that children are not separated from their parents except when the competent authorities decide that separation is necessary for the best interests of the child, for example in cases of neglect or abuse by the parents.
Article 3 of the Convention provides “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Not every suspected child abuse or child neglect case will therefore warrant an application for a Care or Protection Order under the PCJO . The possible adverse effects of care and protection proceedings make it realistic for the Director and the police to solicit the co-operation of parents and careers before resorting to action to remove a child from the family.
B. The Guardianship of Minors Ordinance
The Guardianship of Minors Ordinance , Cap. 13 plays an important role in arrangements for the long term welfare of children. Sections 6(1) and 6(2) of the Ordinance enable parents and current guardians to appoint other people to act as future guardians for their children who are still minors in the event of the death of the parents or current guardians. In April 2012, the Labour and Welfare Bureau of the HKSAR Government prepared a standard appointment form with explanatory notes to assist with appointing guardians. That form should be used if you need to appoint a guardian to look after your children in the event of your death. It may be accessed here ).
A separate form is needed for each appointment of a guardian. The appointment form must contain the names, addresses, and identity card numbers of the persons making the appointment, and the names and identity card numbers of the person(s) being appointed as guardian or guardians. The appointment form must confirm that in making the appointment the views of the minor have been taken into account so far as this is practicable with regard to the minor’s age and ability tounderstand. A guardian, or guardians, can be appointed to act together with a surviving parent. An appointment may be made by two or more persons acting jointly.
Appointment forms must be dated and signed either by the person(s) making the appointment or by another person at the direction, and in the presence, of the person(s) making the appointment; and attested by two witnesses. An appointment has no effect unless the appointed person(s) accept(s) the office either expressly or impliedly by conduct. Ideally the person appointed should sign the appointment form to confirm his/her acceptance of the appointment.
A person appointed as the guardian of a minor has, on assuming guardianship, parental rights and authority with respect to the minor. A guardian appointment terminates when the child reaches 18 or dies. It similarly ends if the guardian dies or is removed from guardianship by the court. A guardian appointed by a parent or guardian may be removed by the court if the court thinks this is in the best interests of the minor. When considering appointing a guardian, both the relationship between the child and the intended guardian(s), and the child’s views on the intended appointment, should be considered so far as this is practicable depending on the child’s age and ability to understand.
1. When and how guardianship takes effect
Under section 7 of the Ordinance a person appointed by a parent or guardian as the guardian of a minor automatically assumes guardianship over the minor upon the death of the appointing parent or appointing guardian if:-
- the appointing parent or appointing guardian has a custody order over the minor immediately before he or she dies; or
- the appointing parent or appointing guardian lived with the minor immediately before dying AND
- the minor does not have any surviving parent or other surviving guardian when the appointing parent or appointing guardian dies.
In all other cases, a person appointed as aguardian may, after the appointing parent or appointing guardian dies, apply to the court to assume guardianship over the minor. In those cases the court may order the person to act jointly with the surviving parent or surviving guardian; to act as the guardian after the minor no longer has any parent or guardian; to act as the guardian of the minor at a time of, or after the occurrence of, an event specified by the court; to be removed as a guardian; or to act as the guardian of the minor to the exclusion of the surviving parent or surviving guardian.
2. Disputes between joint guardians
Joint guardians should be appointed with sufficient care that they can work together in the best interests of the children. When considering whom to appoint as a guardian, thought must be given to the relationship the child has with the intended appointee, the child’s views about the intended appointment, and how that relationship is likely to develop over time. Under section 9 of the Ordinance, where two or more persons act as joint guardians of a minor and they are unable to agree on any question affecting the welfare of the minor, any of them may apply to the court for its direction, and the court may make such order regarding the disagreement as it may think proper. This could include the removal of a guardian, as the welfare of the child is the first and paramount consideration. Under section 21 of the Ordinance, where one of the disagreeing joint guardians is the surviving parent, the court can make such order regarding the custody of the minor; and the right of his or her surviving parent to have access to the minor, as the court thinks fit having regard to the best interests of the minor. Orders can be made requiring the surviving parent to contribute to the financial support of the child depending upon the means of the surviving parent.
Matters relating to Guardianship and attendant disputes are heard in the District Court, though they may be removed to the Court of First Instance on the application of either party under section 24 of the Ordinance if the Court of First Instance thinks this is appropriate in the particular case involved.
3. Revocation of guardian appointment
An appointment of a guardian under the Ordinance revokes any earlier appointment (including one made in a will) made by the same person in respect of the same minor, unless the purpose of the later appointment is to appoint an additional guardian. An appointment (including one made in a will) is revoked if the person who made the appointment revokes it by a written and dated document that is signed either by the person who made the appointment or by another person, at the direction, and in the presence, of the person who made the appointment and is attested by two witnesses. An appointment under the Ordinance (other than one made in a will) is revoked if, with the intention of revoking the appointment, the person who made it destroys the document by which it was made or instructs any other person to destroy the document in the person’s presence. If an appointment under the Ordinance is made by two or more persons acting jointly the appointment may be revoked by any of them. The person who revokes the appointment must notify all other persons who jointly made the appointment of the revocation.
C. Custody of children
In Hong Kong, proceedings relating to the custody of children are contained in:
- the Guardianship of Minors Ordinance (GMO), Cap. 13 ;
- the Matrimonial Causes Ordinance (MCO), Cap. 179 ;
- the Matrimonial Proceedings and Property Ordinance (MPPO), Cap. 192 ; and
- the Separation and Maintenance Orders Ordinance , Cap. 16 .
1. The Guardianship of Minors Ordinance
The GMO governs court proceedings relating to the custody and upbringing of children. Under the GMO the welfare of the child in question is to be the first and paramount consideration of the courts. Under section 3 of the Ordinance, in any proceedings before any court relating to the custody or upbringing of a minor or the property of a minor, the best interests of the minor are the first and paramount consideration. Due consideration should be given to the views of the minor where it is practical to do so having regard to the minor’s age and understanding and to available information from the Director of Social Welfare.The rights and authority of the mother and father of a child are equal. Where the child is born out of wedlock however, the mother has all the parental rights and authority. Even so, an unmarried father may be granted some or all of the rights and authority he would have had as a father had the child been born legitimately (that is, had he and the mother been married).
2. Custody of children in matrimonial proceedings
The MCO overns divorce whilst the MPPO deals with ancillary and other relief in matrimonial proceedings. Section 19 of MPPO states that the court may make such order as it thinks fit for the custody and education of a child in matrimonial proceedings such as divorce. Sole custody orders are currently the norm rather than the exception. Under a sole custody order the child lives with one parent, the custodial parent, who has the right to make the decisions regarding the upbringing of the child. The non-custodial parent is usually granted access, which enables contact to be maintained with the child. There is however increasing support for replacing custody orders with parental responsibility orders to emphasise that parents have a responsibility to work together in the best interests of their children and that protracted legal disputes over custody are not in best interests of children.
For more details about matrimonial matters, please click here .