Reform means fewer kids caught in crossfire of divorce
Updated: 2016-03-29 08:43
By Tim Hamlett(HK Edition)
All court reporters discover that the law's attempts to sort out domestic matters present the spectacle of a clumsy giant trying to repair a broken eggshell.
There is ample goodwill and good intentions. But the implements available - fines, jail, orders, bans - are sledgehammers in a situation which requires one of those little screwdrivers which you use on your glasses, if indeed it will respond to outside tinkering at all.
Still, there are some situations where legal processes cannot be avoided. We would not now wish to go back to the days when you had to be very rich to get a divorce. Progress has been slow, and you can see why when you look at the government's latest consultation paper on Child Custody and Access.
The history of this desirable reform goes back to a consultation paper issued by a subcommittee of the Law Reform Commission in 1998. This in turn produced a series of four reports, of which the last one concerned our topic, and came out in 2005. This fell into the lap of the Labour and Welfare Bureau, which conducted "informal meetings with some stakeholders" in 2009 and 2010.
This was followed by a consultation paper on "Whether to Implement the Joint Parental Responsibility Model by Legislative Means", produced by the bureau in December 2011, with responses to be received by April 2012.
And so to the current further consultation, which started last year and finished on March 25 and features a draft ordinance as well as the consultation paper. The draft ordinance is, as it no doubt should be, very heavy reading, but the basic idea is to change the courts' and parents' approach to what happens to the children of a divorced couple.
The notion of guardianship will go. It dates back to the days when administering the estates of aristocratic orphans was a major source of income for the Crown.
Also discarded are the notions of "custody" and "access". They will be replaced by the idea of "parental responsibility", in the hope that couples will regard the care of their children as a duty to be undertaken together rather than a prize to be fought over.
All the old terminology will be replaced with a "child arrangements order", which will not only cover such matters as where the child lives and how it will meet the other parent, but will also stipulate major matters which parents must decide jointly.
There is also provision for a child who wishes to have independent legal representation.
The idea is to have a stronger focus on the child's best interests, with provision for the child to express a view if desired, and a wider role for the parent who is not the main giver of daily care after the marriage break-up.
It would be surprising if anyone had serious objections to the basic idea that the system should be focused on the interests of the children involved. To the extent that the new terminology embodies that aspiration it will be welcomed.
On the other hand, I fear there are going to be cases where the hope that the parents will be able to decide important matters jointly will not be realized. It is a sad fact of life that divorced couples sometimes have very strong hostile feelings. The woman scorned after devoting her prime to a partner, the man betrayed and cuckolded
So what happens if they really cannot bring themselves to agree on anything? In that case the matter goes back to court and the court will make the decision in the best interests of the child.
That will be all very well in the vast majority of cases, no doubt. The parents will hack out an agreement somehow, even if they cannot stand the sight of each other.
You have to wonder, though, about the possibility of abuse in cases where the level of venom runs high and one partner, or both, can afford an extensive exploration of the legal possibilities.
There could be lots of "major issues". After all, there may be more than one child involved. So there could be lots of trips to court, possibly followed by appeals, applications for reconsideration in the light of changed circumstances, applications for variation of existing orders, and so on.
Involving both parents is a fine principle. But there may be cases where the best thing for the children is to keep the parents as far away from each other as possible.
(HK Edition 03/29/2016 page7)