Category Archives: welfare of the child

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.

Custody and Access of Children of Unmarried Parents

After the breakdown of a relationship, matters of child custody and access can become a thorny issue for the parties involved. This is equally the case whether the parents are married or unmarried.

What are the rights of unmarried fathers?

Some unmarried fathers may believe that they automatically have the same rights and authority as the mother. While this may be the case for married fathers, it is not so straightforward for unmarried fathers. Under the Guardianship of Minors Ordinance, where a child is born out of wedlock, only the mother has automatic parental rights and authority. An unmarried father will have to apply to the Hong Kong Court for an order that he shall have some or all of the parental rights in respect of the child.

But what does it mean to have parental rights? Generally speaking, the rights and authority of a parent includes:-

the right to live with the child and control the child’s day-to-day upbringing;
the right to the physical “possession” and “services” of the child;
the right to choose the child’s education;
the right to choose the child’s religion;
the right to choose the child’s surname;
the right to inflict moderate punishment on the child;
the right to consent to medical treatment for the child;
certain rights to enter into contracts on the child’s behalf;
the right to act for the child in legal proceedings;
the right to administer the child’s property;
the right to appoint a testamentary guardian for the child;
the right to consent to an application for a passport for the child;
the right to arrange for the child to leave or emigrate from the jurisdiction;
the right to consent to the child’s marriage;
the right to consent to the child’s adoption.

In practice, it is prudent for the unmarried father to register his name on the child’s birth certificate which may help in resolving any disputes in the future.

When deciding on whether to grant an order that an unmarried father shall have some or all of the parental rights in respect of the child, the Court will consider the following factors:-

the degree of commitment which the father has shown towards the child;
the degree of attachment which exists between the father and the child; and
the reasons of the father for applying for the order.

Custody and access arrangements for children of unmarried parents

It is ideal for unmarried parents to come to an agreement in relation to the arrangements for their child to avoid the stress and cost of having to go to Court. However, where the separation is acrimonious or where there are disagreements over matters such as what school the child shall attend, where the child will live, when the child shall have access with the father, these matters can be brought to the Court to be resolved.

As is the case with married parents, the best interests of the child is the first and paramount consideration of the Court when deciding on custody and access arrangements. The Courts tend to favour joint custody orders as being in the best interests of the child in order to recognise the joint involvement of both parents in the major decisions relating to the child. The exception to this would be where there is very high conflict between the parents and they are unable to communicate or cooperate each other, in which case an order for sole custody may be more appropriate.

For young children of unmarried parents, it is generally ideal for the child to have the stability of living with one parent (usually the mother) on a day-to-day basis and have regular and structured access with the father. This can be organised in numerous ways. For instance, the unmarried father may wish to have evening access with the child on weekdays after school to enable him to have dinner with the child and continued involvement in the child’s studies and homework. Access on weekends may also be considered to let the unmarried father have quality time with the child and to take the child out for fun activities such as the cinema, theme parks and the beach. The unmarried father may also be allowed to have telephone calls with the child. For holidays, it is usually considered fair to allow an unmarried father to have some access during the holidays and for the father to take the child overseas for trips, if appropriate. The appropriate arrangements, however, will vary depending on the age of the child and the suitable arrangements for a baby or toddler will be very different from a teenager.

It should be noted that any order in relation to custody or access will not be enforceable if the parties are living together and an order will cease to have effect if the unmarried parents continue to reside together for more than 3 months after the order is made.

For more information about the financial obligations of unmarried parents for children after separation, please see our previous article on the topic.

Child Maintenance And Access If One Parent Leaves Hong Kong

Hong Kong is a cosmopolitan city with people from all over the world. Over the years, many expats have chosen to settle down and start a family in the city. When relationships breakdown and parents separate, this can have a huge impact on the family dynamic. This is even more so when one parent chooses to relocate overseas either to return to his/her home country, for work opportunities or because of a new partner.

What happens to access arrangements when a parent relocates?

Upon divorce, orders will be made by the Hong Kong Court regarding child maintenance and access arrangements. Generally, the parent who does not have day-to-day care of the child (the ‘paying parent’) will have to pay child maintenance to the parent who does (the ‘receiving parent’). When separated parents continue to live in the same city, access with the child can be arranged fairly easily. However, this will be complicated if the paying parent relocates while the receiving parent and child continue to remain in Hong Kong.

Once the paying parent moves to a different country, it will be more difficult for the paying parent to maintain contact with the child and the paying parent’s access with the child will inevitably decrease. Flying back on forth between countries frequently to see the child may not be economically viable especially if the paying parent has moved very far such as to the United Kingdom or Canada. While social media and online modes of communication such as WhatsApp and Skype have made it easier for families to stay connected, the time difference may make it difficult to arrange a mutually agreeable time that fits into the child’s school schedule especially as the child grows older and has more extracurricular activities. Ideally, both parents should be able to agree to the relocation and access arrangements so they can be adjusted to accommodate the move.

Enforcement of child maintenance if the paying parent relocates and stops paying maintenance

The paying parent still has a duty to maintain their child regardless of how much time they get to spend with the child or what country they live in. However, if the paying parent stops paying maintenance after relocating, the receiving parent may encounter very real difficulties in trying to enforce an existing child maintenance order. The receiving parent will have to go to the Hong Kong Court to try to take enforcement action. The enforcement of Hong Kong maintenance orders overseas is governed by the Maintenance Orders (Reciprocal Enforcement) Ordinance. Whether a child maintenance order made in Hong Kong can be enforced overseas will depend on the country which the paying parent has moved to and whether it is a reciprocating country. Currently, only 15 countries and places are designated as reciprocating countries:-

United Kingdom
Bermuda
Manitoba, Canada
Saskatchewan, Canada
Ontario, Canada
Isle of Man
Australia
British Columbia, Canada
Brunei
Malaysia
New Zealand
Singapore
Solomon Islands
South Africa
Sri Lanka

If the paying parent has moved to any of the above reciprocating countries, the receiving parent can apply in the Hong Kong Family Court for the child maintenance order to be sent to that country for enforcement.

Parents cannot enforce an arrangement made informally between them, it must be made an order of the court first. Moreover, the receiving parent will need to provide the overseas address at which the paying parent can be found. Enforcement can be further complicated if the paying parent moves to another country with the intention to avoid having to pay child maintenance and the receiving parent does not know where the paying parent is living.

Enforcement of maintenance orders overseas can be complicated. If you are seeking to enforce a maintenance order overseas, it is important to seek legal advice from a family lawyer.

Deed of Guardianship: Do You Need One?

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