Category Archives: Best Interests of Children

Deed of Guardianship: Do You Need One?

The world is struggling with the Covid-19 pandemic and as a result, many individuals are taking into account the legal paperwork needed in the event of a “worst case scenario.” One legal document that parents may want to consider is a Deed of Guardianship, which sets out guidelines for the caring and well-being of minor children in the event of both parents passing away.

A Deed of Guardianship is a legal document signed by both parents and two witnesses. It is a document separate from a Will and unlike a Will, a Deed of Guardianship will set out specific guidelines regarding the care of your minor children in the event of passing. A Deed of Guardianship will set out the minor children’s primary caretakers and can also identify temporary guardians until such time the minor children can be in the care of their permanent guardians. Many times, individuals will also choose to create a separate document called a Temporary Deed of Guardianship, allowing parents to set out clear guidelines on who will be the children’s temporary guardians to assist in the care of the minor children and set out the intention of the parents pending a permanent move to the permanent guardian’s household.

Deed of Guardianships may be especially important to expatriates living in Hong Kong, especially when family members are not in the same jurisdiction. For many expatriates, there is a concern that in the event of both parents’ death, the minor children would then be taken into government custody (eg. Social Services). If this occurs, the government then makes a decision on who will be the appointed guardian. Any disagreements among potential family member guardians can cause delay and result in the child/children remaining under the care of Social Services. By having a Deed of Guardianship, the parents can have assurance on how and who the children will be taken care of should the death of both parents occur.

It is important to speak with a solicitor who can draft a Deed of Guardianship on you and your spouse’s behalf. You may also want to consider establishing not only the guardians, but also alternate guardians in the event the guardians pass away before your child/children reach the age of 18 (which is the age when the guardianship terminates) or if the appointed guardians is unable or unwilling to act as a guardian for the children.

Deed of Parenting

When you speak with your solicitor, you may also want to consider discussing a Deed of Parenting as well. What is a Deed of Parenting? A Deed of Parenting simply states that you and your spouse are the legal parents of the children. This is important in circumstances where you and your spouse are traveling cross-border and there is any question by immigration and customs officers as to the parentage of your children and whether they are with appropriate caretakers. Many times, customs and immigration officers may question parentage when you and your spouse have a different surname than that of your child/children.

Speak with your solicitor about whether a Deed of Parentage is something to consider, especially as customs and immigration agents are becoming much more critical about travel and the necessity to have essential travel documents requirements.

Parental Child Abduction In Divorce

Hong Kong is home to many expatriates and in a divorce, the issue of where a child will reside and grow up after a divorce is a distinct area of discussion among parents. Whilst the majority of parents do come to an agreeable conclusion as to a child’s future place of residence, there are those few highly litigious cases when removal of a child from the jurisdiction of Hong Kong can occur without the permission of one parent and without leave of the court.

When this occurs, it comes within the realm of parental child abduction and the courts take this very seriously as many countries are members of the Hague Convention; a multilateral treaty developed by the Hague Conference on Private International Law and which provides an expeditious method to return a child internationally abducted by a parent from one member country to another. Hong Kong is a member of the Hague Convention and The Child Abduction and Custody Ordinance (Cap. 512)(CACO) was enacted on 5^th September 1997 to give effect to the Convention in Hong Kong. It is important to note that the People’s Republic of China itself is not a contracting state to the Convention, but yet Macau, another Special Administrative Region is. Thus, at this time there is no mechanism in place between Hong Kong, Macau and Mainland China for the return of abducted children to China.

In Hong Kong, removal occurs when a child who was previously in the country of his/her habitual residence is taken away to another country. Retention occurs where a child who has previously been for a limited period of time outside the country of its habitual residence, is not returned on the expiry of that limited period.

In the event that you are concerned that your ex-spouse may unilaterally remove a child from the jurisdiction of Hong Kong, there are steps you can take to prevent this from occurring:

First and foremost, speak with a family law solicitor to discuss the filing of an application to restrict the removal of the child from Hong Kong. This application should be made within the main divorce suit and can be made on an ex parte basis, which is essentially an emergency hearing. If you are successful in obtaining an order restricting the removal of a child, be sure to speak to your solicitor about ensuring this order is adhered to including providing a copy of the removal restriction order to Hong Kong’s Immigration Department who will then have notice of this removal restriction should your ex-spouse attempt to leave Hong Kong with your child.

If you believe that your ex is plotting to remove your child from Hong Kong, be prepared and take preventative measures such as notifying your child’s teachers, babysitters and other caretakers of a possible threat. Record any and all threats made by your ex-spouse and keep updated photos of your child. Gather all documents related to your child such as passports and birth records and make sure you have copies of all documents and that the originals are safely stored in a secured place, accessible only by you. It may also be worthwhile to keep the lines of communication open between you and your ex-spouse, as it may help reduce any potential flight risks that you may be concerned about.

If your ex-spouse has already left Hong Kong with your child without your permission and/or without the leave of the court, it is imperative that you take immediate steps including the following:

Contact Police: Contact local authorities to report parental child abduction. This is especially important if you are concerned about the safety and well-being of your child and/or you’re concerned that your ex-spouse will be going into hiding with your child.
Seek Legal Counsel: As this is a situation which requires immediate attention, get into contact with a solicitor who can assist you with the return of your child. You will want a solicitor who is well-versed in Hague Convention related matters and one who has previously successfully obtained the return of a child from a foreign jurisdiction. Once a child is taken out of Hong Kong, there are many hurdles a parent must go through and if you are not properly armed with an outstanding legal team, it will be that much more difficult. If you are concerned about the whereabouts and well-being of your child, it is very important to keep your solicitor apprised of all communications with your ex-spouse and your child.
Make An Application: Once you have reached out to your solicitor, he/she may suggest that you file an application for the return of your child, but may also suggest that you make a request directly to the Secretary for Justice by filling in the necessary paperwork from the Department of Justice.
Do Your Own Research About The Hague Convention Treaty: Read up on The Hague Convention Treaty and become familiar with it so that you are knowledgeable about what situation you are dealing with. Not all countries are part of the Hague convention so it is vitally important to initially determine whether the country holding your child is a party to the treaty. Do your research and do not be afraid to ask your attorney tough questions about how the Hague Convention Treaty will affect your case and the likelihood of success of having your child return to Hong Kong.

It is important to note that a court will have discretion to refuse the return of a child to Hong Kong. The courts will consider factors such as consent, acquiescence in a removal, grave risk for a child’s return both to physical or psychological harm and/or the court may even consider a child’s maturity and his/her views about a return.

If you are the parent who wishes to remove your child from the jurisdiction of Hong Kong, the route is of course is to go through the legal system which includes negotiating and resolving issues related to child custody and access in your divorce case through mediation or having it resolved by a court order. It is understandable however that many parents find this to be a frustrating process as the courts in Hong Kong are dealing with backlog of cases resulting in delay before there is an adjudication of matters and even then, one parent may not be happy with the result. It goes without saying however, that at no point should a parent take matters into their own hands and resort to parental abduction of a child which can have detrimental effects especially on a child.

If you wish to remove your child from the jurisdiction of Hong Kong, speak to your solicitor about filing an application to remove your child permanently from the jurisdiction. If you and your ex can agree, a consent summons can be filed with the court. Remember, an ill-thought-out plan with little research and planning will not convince a judge that it is in a child’s best interest to be removed from the jurisdiction of Hong Kong.

Children’s Views In Divorce Proceedings

In litigated custody battles, clients frequently ask if their child can testify before the judge. However tempting this is, there are many factors to consider before placing your child into the front lines of a bitter divorce battle.

In Hong Kong, family court judges are cautious and historically, children’s views are only accepted through a social welfare report and/or any expert evidence such as a child psychologist. However, similar to what is being seen in the USA, Hong Kong courts are now recognizing the importance of a child’s view and it is being promoted.

In Hong Kong, as part of its obligations under Article 13 of the United Nations Convention on Rights of the Child, the court will acknowledge that where a child’s interests are affected, a child’s viewpoint can be taken into consideration if that child is capable of forming his/her own views whether it be in person or through a representative. In practice, a child’s viewpoint is taken in the form of the following:

Judicial Interview: Under his/her own discretion, the judge may grant an interview and the mechanism for conducting an interview of a child. This interview is not for the purpose of gathering evidence (which is the responsibility of the social welfare report) but rather it is to enable a judge to listen to the views of a child.
Appointment of Legal Representative for the child: This is similar to what has been seen in California cases where a minor’s counsel is appointed under California Family Code section 3151 which allows the appointment of an attorney to look after a child’s best interests. Here in Hong Kong, the appointment of a legal representative for a child is pursuant to Rule 72 and 108 of the Matrimonial Causes Rules and the purpose is to reflect a child’s interests and not necessarily a child’s wishes. A legal representative for a child is not an automatic right and an unlikely appointment if a child’s view is adequately reflected and evidenced in a report before the court.

Whether a judge will allow your child’s views to be heard or not is dependent on a number of factors including: whether a child is suffering from harm due to access disputes; cases which are exceptionally difficult and involve foreign elements such as immigration or removal; an older child is opposing a proposed course of action; where there may be parental alienation from one or both of the parents; cultural and/or religious differences affecting a child; complex medical/mental health issues that need to be determined; serious allegations of physical, and mental or sexual abuse or in circumstances where neither parent seem to be suitable guardians.

Before a consideration is made with respect to allowing your child to testify or express his/her views to a court, you may want to ponder upon the following:

Is Your Child’s Testimony Necessary? Ask yourself tough questions including why you want your child to testify. What is the real reason? Can your child truly assist the judge to understand the circumstances in your home and how the custody arrangement is affecting your child? Generally speaking, there should be a strong reason behind having your child testify against the other parent rather than simply you wanting more custody time and/or harboring resentment/revenge against your ex-spouse.
What Are The Long-Term Effects On Your Child? Consider the long-term effects testifying will have on your child. A divorce is already a traumatizing experience for most children. It is even worse if the parents are engaged in a bitter and litigated custody battle. Consider factors such as whether it will be difficult for your child to testify because it will make him/her feel guilty for picking sides. You need to consider the psychological effects this will have on your child and how it will affect his/her relationship with your ex-spouse.

Remember that it is in your child’s best interests to have a healthy and communicative relationship with your ex-spouse, who is, after all, your child’s other parent. Allowing your child to testify will undoubtedly affect the relationship dynamic between you and your ex-spouse and your child. Also, try and determine why your child is expressing an interest in testifying.

In making any decision relating to your child, be sure to focus on what is in your child’s best interests and the right decision will follow.

Misconduct In Divorce

In what will be considered one of the most stressful times in an individual’s life, it is no surprise that many people behave badly during a divorce. It is a stressful life event, that many reckon to be on par with the death of a family member. With that being said, it is important that if you are going through a divorce, your conduct throughout the proceedings is important and it could have an impact on your divorce. To behave poorly is a reflection not only on your character but also affects the actual outcome of your divorce.

In a divorce, your conduct in the course of proceedings can be taken into account by the judge, although generally speaking misconduct during the proceedings is more properly dealt with in an adverse application for costs against you.

What are some examples of “bad behaviour” and misconduct in a divorce? Wanton dissipation/reckless dissipation of assets is one form of misconduct. In KMD v PIB [2011] HKFLR 351, the husband was excessively spending on his lifestyle as well as his hobby of flying helicopters and this was taken into account by the court, resulting in HK$1.2 million being “added back” from his 50% shares into the matrimonial pot for division. In MKKWH v RKSH [2013] HKFLR 540, the husband maintained three (3) other families over a period of years and post-separation the wife sought to add back an equivalent sum of monies that her husband had spent on his other families. In this case, the Court of Appeal refused the wife’s application to add back these funds on the basis that the funds had been received post-separation. In A v B [2017] 1 HKLRD 187, the court held that payments to a girlfriend of HK$1.2 million was “wanton” and “reckless” and “extravagant” in view of the marital assets and the standard of living, and the court therefore added back into the matrimonial pot, the non-marital spending.

Material non-disclosure is another form of misconduct in litigation such as monies being hidden. In SANK v PGN [2011] HKFLR 390, the court considered whether a husband’s non-disclosure and refusal to mediate should result in a costs award to the wife. The court concluded that “[t]here are many reasons which may affect the court in considering costs, such as culpability in the conduct of the litigation; for instance material non-disclosure of documents.” Parties to a divorce have a duty of full and frank disclosure and by failing to disclose, the courts will take this misconduct into consideration.

Another form of misconduct is a refusal to attempt to settle. In LWF v LMF [2015] HKFC 146, the wife’s failure to respond and attempt to negotiate was a relevant factor for the husband being awarded costs. The same misconduct label is also attached to litigants who refuse to provide evidence and/or participate in proceedings such as filing necessary paperwork and/or attending court hearings. By refusing to participate, the court will have no choice but to see the case as one-sided and only make decisions based on the actual evidence in front of the court.

The courts in Hong Kong have a duty to have regard to the conduct of the parties to a marriage. Negative marital conduct can be detailed in sworn affidavits filed with the court and will be considered by the court as a material factor in allowing the court to depart from equality (See LKW v DD). However, it is to be noted that if there is a departure from equality, the courts will look for “obvious and gross” misconduct for it to be taken into account.

Round-Up of Divorce News

Spring has arrived and what better way to ring in the Spring season than to summarize some of the few highlights from Divorce news stories circulating the Web.

Gender and Diversity In Divorce

South China Morning Post published a story about a decision by a Court in Beijing, China ruling that a Husband should compensate his Wife for housework she had done over a period of five (5) years. The penalty? US$7,700. Whilst there may be some housewives out there that might scoff at the idea that 5 years’ worth of housework was only worth a penalty of US$7,700, it is in fact an interesting ruling as it places a monetary value to chores and housework.

According to the SCMP article, there has been and continues to be a larger debate in China about the role of women who stay at home rather than enter the workforce. This is the first ruling of its kind in China since a marriage law came into effect on January 1, 2021. With the new law in place, it will be interesting to see how this plays out and how women (who continue to mostly be in charge of housework in China) will be compensated as they are now entitled to request relief from the Court.

Chasing After The Sun

In a recent Miami Herald article, it was declared that Florida is fertile ground for love such that divorced men are choosing the state of Florida as their primary destination to move to after a divorce. Could it be that it is perhaps the sun and that sun-kissed glow attracting newly single men to flock to the sunny Florida state?

According to the article published by the Miami Herald, a study by MagnifyMoney confirms that Florida is welcoming nearly 2,581 men in the 12 months after a divorce. The study states that the real reason men are choosing Florida over other states is due to job opportunities and career advancement along with the lower cost of living offered by Florida as an incentive to move. Given the current state of affairs around the globe, it also would make sense for individuals to move where space is a luxury, as is outdoor recreation activities. After Florida, men are choosing California, then North Carolina as their second and third best destination option.

If men are heading to Florida, then where are women heading? According to the study, women opt for Texas, followed by Florida, then Georgia.

Divorce and Daughters

In a new article published by The Economist, there are several studies conducted in America which confirm that having a female first-born does in fact increase the risk of the child’s parents divorcing, particularly in America and the Netherlands. This study conducted by Jan Kabatek of the University of Melbourne in Australia and David Ribar of Georgia State University in Atlanta, Georgia, USA also states that “daughter-divorce” risk emerges only in a first-born girl’s teenage years. According to the researchers, the primary reason behind the “daughter-divorce” risk is based upon the fact that parents quarrel more over the upbringing of teenager daughters versus teenage sons.

Covid-19, Depression and Divorce

In unsurprising news, the BBC reports that due to the Covid-19 pandemic, there has been a rise in depression and stress among parents resulting in fears, worry and anxiety. This has led to frequent arguments among couples, thus placing additional stress on the relationship and opening the door to couples considering separation and divorce. Demands faced by parents are becoming increasingly stressful as parents not only are dealing with Covid-19 related fears, but the resulting effects of Covid-19 including lockdowns, home schooling mixed in with the pressures of work commitments.

According to the report, Oxford researchers are now tracking both children and parents’ mental health throughout this crisis.

Those are some of the more interesting stories hitting the web. Stay tuned for additional summaries of interesting stories circulating the web related to divorce.

Deed of Guardianship: Do You Need One?

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