The Barrister Series S5E3 | Discussing Divorce and Children Matters with Felix Li

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TRANSCRIPT

Tune in for Series 5 of the HIP talks, a podcast series of discussions on legal issues hosted by Hugill & Ip Solicitors, an independent boutique law firm in Hong Kong providing bespoke legal services and exceptional client service to individuals, families, entrepreneurs and businesses, both locally and internationally. The forthcoming podcasts are The Barrister Series. Over six episodes, the team sits down with preeminent Hong Kong barristers to discuss contentious issues related to civil litigation, employment, family, trusts and estates as well as increasing awareness about the importance of the role of barristers in court proceedings and the relationship between solicitors and barristers when acting for clients.

Hugill & Ip provide expert advice across a variety of dedicated practice areas both contentious and non contentious and outstanding team of solicitors who have achieved exceptional results and recognition in the areas of dispute resolution, probate & trusts, family & matrimonial, corporate & commercial and employment & immigration. Hugill & Ip applies modern thinking to legal services, uses technology in a contemporary office environment and is fully committed to giving back to the community.

Raphael Wong  01:16
Hi, my name is Raphael Wong, and I’m pleased to be joined by Felix Li, a practicing Barrister in Hong Kong. Hi, Felix.

Felix Li  01:26
Hello. Thank you for inviting me. I’m very happy to be here.

Raphael Wong  01:31
So today’s talk is mostly about children. And before we go into that, perhaps you can tell us a little bit more of your background.

Felix Li  01:42
My background, okay, sure. I have been a barrister for almost 20 years now. I got my qualification in the UK and then, but I didn’t practice there. I came back to Hong Kong immediately and I started practice around 2006. So, it’s been almost 20 years now. And since day one I have I have had experience in a range of cases as it is quite usual for junior barristers. But I have had family cases since day one. So, I was quite lucky.

Raphael Wong  02:27
Yeah, I remember when I was still a trainee solicitor, I had a case with your mother actually. She was yes, she was as a mediator, and we settled the case actually… a very messy family case as well.

Felix Li  02:45
I see. I see. Yeah, it is not unusual for people in our profession to have family members. Grandfathers, mothers, fathers and son, mothers and son, mothers and daughters. And then eventually some may even go on the bench. So, you have you’ve had it’s part of the tradition…

Raphael Wong  03:09
So is there any particular reason why barrister over solicitor?

Felix Li  03:14
For me? Yeah, for you? Yeah, there’s a range of reasons. Number one I, I am I don’t think I can work so well repetitively in an office for long hours. So I have since the beginning thought, I either become a barrister, which I know it’s self-employed and now that you’ve mentioned I have family members who who’s who’s also a barrister, so I know exactly what I was going to get. As opposed to going into a sort of office hour work. So, at the beginning, it was either barrister or do something else.

Raphael Wong  03:59
Presumably that something else will be music.

Felix Li  04:02
Maybe or something of my yeah, yeah other interests. It’s more suited to the character.

Raphael Wong  04:10
Right. So we all know that in divorce settings or family disputes, we usually have to deal with two main areas, one is children and then the other one probably is money matters. Yeah. So, between the two, do you have like a preference for yourself?

Felix Li  04:26
I like children cases. I always think money matters. It’s easier to resolve by the parties. They should come to some sensible decisions. Whereas children matters sometimes I can understand they are in deadlocks, especially modern days where both parents take active roles. They’re fully entitled to think their way of thinking about what is best for the child trumps over the other one. There’s no solution in their world, there’s no solution, so they really come to you frustrated. Whereas money in a certain way, I think they, it’s it’s like a commercial decision. And they know what they’re playing at. So out of the two, I feel I can make myself more useful in the area of children.

Raphael Wong  05:26
Right. And we all know that supposedly, in an ideal world, children matters and money matters are separate matters. But have you seen cases where the party is trying to link the two matters together?

Felix Li  05:40
Of course, always. I suppose that’s where we come in. Exactly. It’s It’s not wrong for them. Well, first of all, when you know, divorce is like having a surgery. If you are lucky, you never need to experience that. So I respect clients in a way that they are going through a phase of life they’ve never come across before. They don’t know what is right. And for laymen, when they talk about divorce, of course, they mixed children and money matters. I’m sure you also we have a lot of clients, which I think whoever gets to custody needs to maintain the child financially. Yeah, so I think it’s, that’s why we need lawyers. Correct. And we need good solicitors.

Raphael Wong  06:34
Right. And for the purpose of this podcast, maybe we should briefly define when we talk about children, who exactly are we talking about.

Felix Li  06:47
Sure. I think without going into any specific legal terms, I can say, the existing legal system covers almost all kinds of situation. If I put it in another way, there aren’t any loopholes or there won’t be a situation where a child in Hong Kong needs help, but the law doesn’t cater for it.

Raphael Wong  07:19
I remember there are some odd and weird cases where, for example, the parties getting married, and then they turn there’s a child, but years after it turns out that that child does not belongs to that husband or the so-called Father. What would the court do in such a situation then?

Felix Li  07:43
Well, again, without going into the legal terms of things, parties can be rest assured that the court has a duty to look after any children. Right. However, when parties in a divorce setting, there are certain thresholds that they need to satisfy in order for the courts to accept what we call the child being a child of the family. So, again, I don’t want to be too legalistic about it, but in short, if you have treated the child as your own, you have lived together, you have basically lived a life of a family where the child and the parent treat each other as parent and child, nobody needs or should be worried.

Raphael Wong  08:42
Okay, now we have defined basically, as you said, the children of the family being the subject matter, then how about we talk about the role of the judicial system? Probably this is what the listeners are most concerned with what they can expect from the courts from the lawyers and how the courts would pretty much help them resolve the issues.

Felix Li  09:06
Sure. For me, personally, I think this is I find this interesting too, because I always put myself into client’s shoes. It must take them a lot of courage to walk into a law firm and ask for execution of a divorce. Whereas I can, I can only imagine, they must have spent so much time before that, either research team researching on their own or talking to friends, talking to professionals in a friendly manner. Yeah, and unfortunately for me, if I can, if I can make this analogy, I’m like the, it’s almost like the surgeon. So, when the patient comes to me, they’re already pushed into the room, and I’m about to perform the surgery. So, I never get to see the first parts.

Raphael Wong  10:11
Well, that is, in fact, the key distinction between the role of a solicitor and a barrister.

Felix Li  10:17
Yeah. So, in a way, I’m always intrigued how, how these people take the courage and make the choices to come to you. And then of course, you’re asking me the role of the judicial system. Perhaps I’m now putting the question back to you, because I’m just thinking that would be one of the one of the things that as lawyers, be it solicitor or barrister, when you first see a client, you need to comfort them, as well as giving them the reality that now that you have decided to use the judicial system, and if the divorce unfortunately, is contested, which means you need to fight. And then fight needs time. So…

Raphael Wong 10:24
…and (it’s) costly too.

Felix Li  11:12
Well, of course but time is priceless. The time is usually when clients come to me, I would I would run them through, I would tell them, look, if you’re going to dispute this dispute that which you may be right to dispute them or you don’t dispute, but the other side may want to dispute, it’s going to take this amount of time, you may need to go to court, how many times and are there windows of opportunities for you to settle at different stages. And usually, when I say usually 99 out of 100, that timetable comes out to be longer than what they want. And if I’m in their shoes, I would be a little bit surprised too. For example, if we have a divorce, where the marriage itself is around three to five years, and if we tell them it takes the equal amount of time for you to go through the divorce, it doesn’t make sense to them. So I don’t know, is this the kind of judicial system you want to talk about or you want to be, you want more exact…

Raphael Wong  12:35
I think what I wanted to ask mainly is, from the court perspective, certainly they are not teaching what the parents should or should not do. After all, as you said the divorce, say maximum three years. But the court’s jurisdiction over children matters, maybe until the children’s are 18, so the court process is going to end sooner, relatively compared to the whole 18 years of the children’s life. So very, very often the courts, at least my personal experiences that the courts very much encourage the parties to come to a settlement themselves, because there’s only so much the court can do. Absolutely. They can, of course is the is the role of the court to make a decision on behalf of the parents. But my experience is that if it is a decision made by the courts, then there’s only winners and losers. So, one party is bound to win when the outside is bound to lose, or sometimes both of them just lose, because neither of them get what they want. So at least my experience is that parties are often better off if they reach an agreement themselves. And it seems to me that this is where lawyers can add value to their clients. Very often layperson, they might not have received legal advice, and they will have trouble the courts, and the courts might spend extra time just to explain to them the position and what they should or should not do. You sat as a deputy judge, what was your experience in relation to this? I’m not talking about specific cases, obviously. But as your experience as a judge, what what do you observe when you deal with people who has no lawyers?

Felix Li  14:39
Not easy. But before we get to that, you’ve raised some very, very core and I think very, very good points about the area of children within a divorce setting. First of all, settlement is always, always encouraged, whether from the eyes of the court. Yeah, I have, I’ve served the judiciary a few times. And I can tell you for sure that it’s nothing to do with workload. It’s never the case. If lawyers come to court and think the judge walks out and want a settlement, because the judge doesn’t want to work, that is very wrong, in fact, is one of the first principles, I think that if possible settlement, it’s always good for parties in divorce, in family settings, because after all, we all know it could be a marriage of 30-40 years. And as much as lawyers gives you all the attention, as much as the court gives you an appropriate amount of time to fight over whatever issues, how much time in reality, can the court give you? A 10 day trial? But you’re talking about the 40 year marriage, of course, that jumps to another area, which talks about how much the court will see or how little the court will see the conduct over the over a long marriage of sort of for 30-40 years, but generally speaking, yes, settlement is always encouraged. That brings to the next question, whether the parties can always have the right type of lawyers… I’ll come back to your question later about parties having no lawyers, I’ll talk about that. But before that, because Raphael, you you are in you are in a very prestigious firm, which specializes in areas including matrimonial but we all know in in the daily world, there are all sorts of different types of lawyers. And there’s no barrier to entry in the family courts in the sense that you can get any types of lawyers representing their clients coming to the family court, but they don’t have this settlement-minded thoughts or maybe lack of experience in this area. So that’s, that’s the other problem, or I shouldn’t say it is a problem, it’s it’s a reality. So the quality, the types of lawyers, the courts has to deal with. That’s, that’s another thing as well… right, right. And it is important, whether it is solicitors or barristers, for example, I can only speak for myself, there may be other types of barristers, there may be other even in matrimonial practice, we all have our different personalities. We all have our little subtle differences. I’m sure you can tell, can tell.

Raphael Wong  18:07
I understand that some barristers only focus on say, for example, money matters. And they said they do not do children matters. Yeah.

Felix Li  18:14
Yeah, well for for myself, because I have slowly I can’t use the word specialized. I’m still learning every day, we are. But as my practice went on, I found them more and more matrimonial cases coming to me. So that it got to a point where there would often be clashes of diaries, it became it became not, I felt less comfortable doing the whole the full range of civil, criminal, matrimonial, so at some point, I decided, okay, I, I’ll cut down the other practices and focused on matrimonial. So that’s how I built up my practice in this area. And as I said, there are different kinds of barristers with different preferences or different takes to to a case, but I can you all know me, pretty well, we’ve worked together for a long time. I’m always settlement-minded, and I’m always very, very open about that. So, in front of clients in front of solicitors in front of solicitors that I’ve never met, even in court, they all know that I’m always up for a settlement. And that just for me, is the right thing to do. Right. But then bringing that back to when it always takes two to tango, we all know that and if the other party, let’s say they don’t have a lawyer, or they have a lawyer, which specializes in some other areas of law, you’ve never seen them in the family courts, then you need to be extra careful. Right?

Raphael Wong  20:18
Yeah. So…

Felix Li  20:21
Well, perhaps let me answer you. Also, when, when both of them are not represented. So that’s the, that’s the interesting experience, I can only get by surfing the judiciary, I didn’t, I didn’t come to think of it as much because we as lawyers, whenever we go to court, that means our client is represented… correct. So, at most you we get us versus the other side, who is acting in person. But we’ve never been in situations where both of them are acting in person with no lawyers and in person, generally, it’s a lawyer’s term, it means neither party are legally represented, none of them have lawyers. So, so I had the great opportunity to experience that when I was serving the judiciary, so you get one day you walk out, the whole room is just full of… no lawyers. So, you have the husband acting for himself, you have the wife acting for herself. It’s not necessarily all bad, in the sense that the parties can tell you more directly what they want, whether they know what they’re doing. Right. But I’m sure you can imagine, whereas when a lawyer comes, he or she will have a bunch of things they want to say, or he or she has already advised the client outside court that when I go in, when I see the judge, I’m going to say this, that and then I’m going to get A, B and C for you. So, it becomes more difficult if that A B and C it’s something not sensible. Whereas if both persons that they don’t have lawyers, so in a sense, if the lawyer is not a good lawyer, so allow me to use the word contaminated, so they’re not contaminated, they can tell the court exactly what they want. And you can’t assume people who don’t hire lawyers are unreasonable people. That’s a wrong assumption. Some people come in very timid, very educated, very well spoken, and make good choices. So that’s it’s a mixed experience, it’s not necessarily bad.

Raphael Wong  22:57
Now, you also we also briefly talk about the so called division of labour between barristers and solicitors. Usually, when the client first comes in, they will have to approach solicitors first Yeah. And then they instruct a barrister. Yeah. So, what do you think that so I’m sure you’ve worked with a lot of solicitors from your perspective, how to the solicitors add to the value in trying to resolve the matters?

Felix Li  23:31
Wearing the hat of a barrister of course, I am always very grateful for solicitors having filtered a lot of information. So, when usually when the client comes to me as the barrister, I know that they’ve been taken care of by the solicitors already in the sense that the solicitor would have elicit all the relevant information, so that makes my life a lot easier. I suppose the downside is as a barrister in in matrimonial context, I always prefer to come into the picture as early as possible. And of course, that I suppose everyone would say that to bring the case to me earlier.

Raphael Wong  24:28
Yes, it also makes sense because sometimes the case develops on a regular basis and if you are in the picture earlier, then you’ll stay on top of things. And otherwise, sometimes some details might might be lost. And so even as a solicitor’s right, we have contacts with the client sometimes on a regular basis, daily basis and sometimes on the weekend because children matters can be unpredictable, things could have happened over the weekends, for example, like access time pick up drop off, there may be some difficulties. And those are the times when the client would come to the solicitor’s office first, obviously…

Felix Li  25:13
and, and that’s the time when I, when I, again and again think okay, I’ve made the right choice. I didn’t regret this expressly I wanted to say, I if I were to become a solicitor, I’m not so sure if I have, I have the time and patience to deal with matrimonial clients. And that is why I’m not just saying this I’m truly grateful for, for solicitors handling clients. I think I can, I can perhaps say in family cases, I see myself as part of the team in the sense that the traditionally solicitors of course, you handle clients, it’s client based, whereas traditionally, there’s desegregation, because barrister supposed to be more impartial, you should have. So the judges can take your words, they know that you can build up the rapport between the bar and the bench, the bar table and the bench, etc. But in family cases, it’s always teamwork. I always tell the junior barristers or sometimes my pupils, you cannot expect solicitors bring in clients and then you put up a barrister look, and then you think, okay, I do ABC, and D E, F, G H, I, J K, that’s not my part. That’s wrong. It’s teamwork. It’s barrister needs to handle client as well during the times when we see clients. But, but we know every holiday, and it’s very annoying because for you for you are the peak season so to speak, the Christmas holidays or the important days, summer time when you yourself would want private time, so you have all these people calling you during weekends during Christmas Eve. Oh, no, he’s promised me six o’clock at the lobby. Now it’s 6:15. What do I do? He now says the child has to has a low temperature. He’s throwing a temper not coming down. So what do I do? Well, at the beginning of divorce, you can have a client calling you 20 times a day, should I change the lock? Should I change the lock? Or should I kick him out? Or should I leave? What if I leave? I can never come back to the house. So, I appreciate all that…

Felix Li  25:13
Yeah. That’s why we work so well. You’ve talked about what you discuss just now as it comes to my mind the so-called legal principle when deciding matters, because we said Oh, in situation, for example, or urgent decisions to be made by the court, there’s only one guiding principle that is the best interests of the children. Yeah. And what intrigues me the most, according to the common law system, or under the common law system, is that there’s no definition of best interest. It seems to me that different judges given the same or similar factual matrix, based on their background experience, they might come to a different outcome.

Felix Li  28:43
Well, but funny enough, it’s only fair that words, big words like this best interest of a child, you. If we look at it the other way we cannot possibly have list. As long as you can make that list from I don’t know, one to 100, there’s always that 101. And the thing to think with children cases, which is so different from any other cases in the world of litigation is that and I always tell this to people. If you think about however complex a criminal case, let’s say there was there was a massive big fight and then someone ended up dead. However much scrutiny you can put into that situation that the incident it happened, maybe over it could be as short as one minute, two minutes, let’s say five minutes, or sometimes in sexual offenses may be over a period of time. But you’re always still talking about scrutinizing the period of time in the past. And the court plan gives a ruling. Same for civil cases, be it water leakage from upstairs, or any type of civil cases you can name more, in the commercial world, there are lots of commercial contracts as breach of contract, etc. You’re always looking at something that happened in the past. And then both parties, of course, they collect evidence, and then the court will rule. But children, children is completely different, because we all know, the child will grow. So the court’s decision is not about in the past, who was right and who’s wrong. Neither was it’s all about the best interest of the child in the past, right. So, you don’t come to the family court complaining of a child suffering under the care of let’s say, one parent, and then ask the court to make a ruling of that, unless that’s child abuse, that’s different. So, you will hear the family courts always say, well, we’re not magicians, we don’t have the crystal ball. We can’t tell you exactly what will pan out for your child. If your child if if the two of you are now going through a divorce, and your child is only three years old, how can anyone predict what will happen until 18, not even a feng shui master. So for me, that’s the interesting part. And that’s, that’s partly why I like children’s cases so much, because it’s, it’s lateral, you cannot look at it in a linear form. And there’s no right or wrong, in a sense, that who did what in the past. And that brings Raphael back to your question. So best interests of the child? I think one way of looking at it, and hopefully the listeners would relate more to is, it’s not really talking about the past, it just in a sense, because in the legal system, somehow, judges still needs evidence. And when you talk about the word evidence, it has to mean something that has happened in the past, and you’re trying to save will happen again. But and it’s a big but. When you talk about the best interests of a child, in the true sense of the word, it has to be what the child is going through now. And for the foreseeable future. It’s it’s never defined in such a way and courts will never say, are now making a ruling, or I’m writing up a judgment up till now the child is six, I can only foresee reasonably up till maybe he’s 9 or 10 or 12. You never see that. But the reality is, how can anyone predict a 6-year-old up till 18 or even beyond because the law allows. Usually, when we talk about interest, it can go up till the completion of full-time studies. So, you’re talking about 21-22 year olds. So as much as the courts come to a decision over a child, when I say child means child arrangement, the court can only do its best to reasonably foresee a period of time, but without defining that… right,

Raphael Wong  33:46
So from your perspective, after you have been in this area of practice for quite some time, do you see the Court’s interpretation if I can call it of best interests, a change something that’s changed over the course of the years?

Felix Li  34:03
Yes, definitely, in terms of culture, and I can only speak for my experience as a practicing barrister in Hong Kong. So in that sense, I can only I can only speak on behalf of the culture as I understand it now in Hong Kong when it comes to child care. I think the obvious point is because nowadays, men and women are more equal in every sense of that word. So, it’s normal for fathers to pick up childcare roles were in a traditional especially Chinese setting, we always have the saying “the men takes care of the external and the women takes care of the internal within a marriage or family”, so that it’s no longer accurate. Because in modern society in Hong Kong, men and women take up almost equal roles. Really, really equal in the sense that if you walk around the streets, now, you can see it father’s having tissues with his left hand, right hand is holding the milk bottle of carrying all this baby stuff, and you don’t see that as abnormal. You just think, okay, this is the father performing his duties. And of course, then you see, you see all the women in suits, working, finishing work, going back home and taking care of children. So, in that sense, men and women equally accepting each other as child carer. So, of course, every family is different. And we all know that. But generally speaking, so that makes it more difficult compared to historically speaking compared to before, when parties go through a divorce, both parents had been hands on, rightly so. And they cannot split the child. Right…

Raphael Wong  36:29
Yes. You mentioned a great point, because my experience is that some perhaps more mature clients, they will come to being asked, or under the assumption that Oh, since I’m the mother, or since I’m the father, do I automatically get only care and control or get only access rights, they are still operating under the assumption that oh, if she is the main carer or if she is the mother, then she will have automatically have custody of the child. That brings me to the because recently, we talked about the law change, right? We tried to change the children, at least the legal principle related to children matters we want to get away from those legal terminology like custody, care control and to some more neutral wording, say parental responsibilities. So how do you think about this, this idea of changing the legal system, or at least changing legal principles…

Felix Li  37:36
I think it is a good idea to take away the labelling. As you have rightly pointed out, parents walk into the courtroom, and you can’t blame them, the layman and they’re going through probably one of the worst times in their lives. You can’t blame them for thinking that I’ve invested time, resources, I’ve got good lawyers like yourself to fight and of course you cost money and then I want a result. And if I don’t get that result, I’m not winning. So, you’re right, in a sense that the court room does give automatically people a sense of winning and losing. Even to us, as much as we try to detach that, of course, when you get everything you wanted from the judge that day, you would brand that a good day. Whereas you’d get shouted at reasonably or unreasonably, then you perhaps after work when you go for drinks with your friends, you tell them I’ve had a bad day. Yeah. So, it’s only normal for people to have this winning losing mentality. But again, that goes back to how special the area of children is. Yes, because we’re talking about a child and it’s not just the law, but the society accepts and I can I think I can boldly say, not just Hong Kong, Asian countries, Western countries in I can’t say globally, but the parts of the world that we are more familiar with, it’s all running the same concepts. It’s now child-focused. So when the world accepts children these days are born and they are being nurtured in more sophisticated manners, then it is only right for the court to look at the child, so the court is it’s only doing what the parents and the rest of the world has been doing all over the years: child-focused, so the court is also child-focused. But the problem is the child never ever goes to court. This is something that laymen they will know, perhaps in the first conference when they come to you, but if the general public listeners to this podcast then a lot of them don’t even know, they should know, children never go to court, except in very special situations where the judge wants to meet the children. Right, right. But generally when children don’t go to court, and the court is solely focused on the children’s best interest. So that’s, that’s the difficult part. So in the eyes of the court, there’s no winner or loser, because mothers only fighting what the mother thinks is right for the child. And equally, the father is fighting for the same. And there should only be one winner, and that winner is never in the room. So that’s something that needs time to digest for anyone.

Raphael Wong  41:06
Well, I can, I can easily put myself into the client’s shoes, I must say that, before I have children of my own, my interpretation of best interest is, it’s quite different, frankly. Because very often you have clients fighting for additional hour over the week, or maybe two bests, and then they would just spend thousands, if not millions of dollars, just to argue for the additional hour. But after having children of my own, I’ve often asked myself, if I’m put into the client’s shoes, if I only get to see my child, one hour per week, I think I would go crazy as well. So, I have to constantly remind myself that whenever I’m advising clients, it will have to be the best interest of the children, not necessarily myself. So it it my my personal experience, teaches me how to keep in mind that whenever I give advice, I need to think from the child’s best interest point of view. But very often that the client would think that they are making decisions based on the best interest of the child. But very often, the court might not see it the same way. And this is how we will need to manage clients expectation and perhaps this is how we can help the court to resolve the matters, because not only that we are acting for the clients, but we are also officers of the courts, we have a duty to assist the courts in resolving the matters as well.

Felix Li  43:00
Well, yeah, one point you’ve raised in, it’s very true, is that you get a lot of parents fighting for time slots. And, again, you need to respect the parties in the positions that they are in. That’s all they can do. That’s what they think. That’s all they can do. For example, you get a lot of where the fathers or mothers, they would think they are entitled to half of whatever time that is left of the child. So like you say they would, they would go very far to fight for that extra hour. They think it’s unfair otherwise. But this is this is another problem where the court sees things differently. It’s not the quantity, but the quality of time. So, giving a parent, let’s say 50%. Okay, if you call that being fair, but however, one parent is left with the 50% of time where the child is in the middle of school week, whereas the other parent gets the weekend time to play when the child is more relaxed when the child has less pressure from homework. So do you call that fair? So, but however, the court cannot help parties by making an order that you must have quality access with the child. The court can give you for example, a weekend. But what you do with it, it’s entirely the parents responsibility or your choice. Right. So how often do we get parents fight and fight and fight and eventually yeah, they get the weekend, and what do they do? Have the child sit at home, the parent does his or her own things. And then the child watches TV or iPad. And then when the child goes back to tell the other parent, the other parent goes to the lawyer and said, look, I’ve spent so much time fighting for this or fighting against this. Now he got it. Look, he’s just wasting the child’s time, and then go back and fight another round. Exactly. So Raphael, perhaps this, this brings to another big point where I think maybe I can only speak for myself, but I, I think in children cases, another special feature and it’s, and it’s so different from any other types of litigation, is that the courts can only step in and help parties for a particular period of time. Meaning whatever issues that you have with your child post-divorce, it is ultimately still, the parent. It’s impossible for the court to become the parent of the child. And if that’s what the parties want, then they are most irresponsible. From a practicing barristers point of view, sometimes when I’m when I’m into a child case, sometimes I get that feeling too, perhaps after long conference with client, or maybe even in the middle of a trial, sometimes I do get that feeling. So why why are these people shuffling all these decision makings, responsibilities to us: solicitors, barristers, judges, why? Because it wants to see justice. But you’re looking at a child’s growth when nobody can, can tell you. Yes, that’s a divorce, we all empathize that, but still, it should be the parents. So again, probably this then comes down to the division of labour between us. So barristers and solicitors how we educate the client, and support them in the right manner, in telling them look, we can give you guidance, the courts can give you a glimpse of guidance. It’s like going to a fortune teller, the fortune teller can then tells you look, I can only tell you what will happen in this particular year, or maybe next year, but I can’t possibly tell you further on. So it should be the same. I think it’s the relationship or the communication between the legal team and the client in this respect that we should let the clients know it’s your child. It’s your and your divorced partner’s child, you two need to deal with it in the end.

Raphael Wong  48:31
Exactly. So that’s why I said it can be a vicious cycle. If if the parties operate off the mindset that the fights until their teeth, then it often becomes a situation where they’re obviously very hostile, and the more hostile they becomes, the less they’re able to co parent the child and the more issues down the road. So that’s why perhaps that is why the courts would often encourage the parties to reach a settlement between themselves because this is just they will have to deal with it. They are parents for life. Basically, the court may be able to resolve this imminent issue for you once or twice. But ultimately, it’s you who are the parents that have to look after the child. So ultimately, the parents will have to work with each other but not against each other and going to court probably doesn’t help that much.

Felix Li  49:29
Well, yes. You’ve raised the word co-parenting. I think this is correct. This is trendy. This is the way to go. And there are social reasons behind it as well. Nowadays parents, compared to the traditional historic Chinese pattern, parents were the you back in the days the women don’t work as much or they don’t get educated as much, but these days are, as we’ve just discussed, they are men and women are equal.

Raphael Wong  50:05
And more and more families are having domestic helpers, so that both parents can work.

Felix Li  50:12
So in that sense, neither of them can have any excuse for not learning how to continue to be parents, when to marriage don’t work, of course, socially, that that may be another topic for another day where you have you, you have different people making the decision to divorce for different reasons now compared to perform where maybe I just give one or two examples to to make my point clear. So traditionally we’ve faced with the clients coming to you maybe after the children have grown up, or when the couple in they’re 60s. But these days, you we have a lot of relatively young couples getting divorce with children. Of course, socially, we all know the reasons because now the men and women are equal. So for the mothers, they would often tell us that they still they still have choices. And they’re able to raise the children by themselves. So, the point in time when people get divorce has changed also. So that affects how the court deals with children. And that partially explains why the court is now faced with a lot of divorce cases with young children. Because socially, they now have the courage to do it, the young couples. And with these children left behind, under a divorced family at a young age, so that is what cause for co-parenting. Right. Whereas traditionally, when normally, if the children are more in the teenage, closer to 18, or even beyond 18, then arguably you it’s up to you to co-parent or not because you’re almost dealing with an adult child. But nowadays, why we’re getting more and more clients with very young kids, or kids of all various spectrum of ages. That are relatively preteens. I think that is that’s a valid point as well. And that calls for co-parenting. So if they don’t learn how to be parents, but a divorced couple, then it’s bad luck for the child in a sense.

Raphael Wong  52:58
So in the co-parenting, it’s something quite important. And equally important, from my experience is that the parties need to learn how to explain things to the clients as well as or explain things to children. Sometimes, I mean, ask questions like, oh, how should I explain to the child of a party separation? How should I tell my child that the father still loves him? He might not have abandoned him. The fact that he doesn’t want to see (him), he’s spent a little time with you doesn’t mean he doesn’t like you. So, I find it very beneficial for the clients to engage help from third parties as well, such as psychologists, for example, where they can learn how to speak with the child. And a very occurring theme in divorce cases is that Swan parties my bet mouth, the other party’s in front of a child. It’s quite, it’s very damaging to the child. And quite frankly, is this sad to see these cases? And I’m sure you’ve dealt with a lot of alienation cases as well. These are often very difficult cases and sometimes frustrating to a point that a court order by itself might not be able to resolve the issue.

Felix Li  54:31
Yeah, this is no doubt a difficult area. You are absolutely correct, that if it comes to a point where professional third party help is clearly beneficial, then of course go get them. But there’s always the counter argument of trying to protect the child from seeing different professionals especially whether or not they are really distressed or have problems themselves is an issue. So a lot of a lot of parties, in such situations they would brand, or they would suspect the child to be suffering from some from some special issues.

Raphael Wong  55:20
And they will rush to bring the child to see a third party’s expert, and then to produce evidence in court.

Felix Li  55:27
And I’ve read many of these reports. And a lot of them will say, either boldly or nicely that your child is actually okay. But he or she is just distressed over the parental conflict. So it’s a weird, we’re trying to avoid that situation. But there’s no simple answer to it. The area of alienation in reality, is difficult. I can only say from my experience that if something like this seems to be a theme, in a divorce case, try to help the parties. First of all, not to involve other family members. It’s already difficult just between the two of them. If you add on all these grandparents, you add on all these relatives, sometimes they live together, and it’s unavoidable. But try as much as they can. So we can only advise one client, of course, we can’t advise both. But we can only do our best to tell our own clients, look, keep it between you and the other side, the other parent. Don’t involve your other family members and look at the situation first look in your child. Don’t jump to these professional help yet. See what the problem is first, right. But of course, for some cases, if the child is reacting, for example, both physically or, or the child loses sleep, or the child refused to go to school. So there are all sorts of reactions in a child, sometimes the child is just looked sad, or, or distressed. But sometimes there are other more visible reaction from a child, for example, refuses to eat. So if it comes to those, of course, we need to protect the child as well. But the and the other point, you raised this also right. So what if you have a very reasonable and good parent on one side, and the other parent is acting so unreasonable? Yeah, yes. And he’s, he or she might be the culprit of alienation sent. So what? What do you want the court to do? A lot of clients will say, okay, punish him, punish her. Send, send them to jail. There is such a procedure, right, Mr. Lawyer? Yes, there’s such a procedure, but they’re not committed, they’ve not committed murder, you’re not going to send this person away forever. If you manage to get the court to act so robust, to send an unreasonable parent to prison, because let’s say she or he obstructs the child from seeing the other parent so badly with all these alienation, whatever term you want to call it, at most, it may be a, it may be a prison term, or for off a few weeks, a few months. Then what happens? You think after that coming out, that person no longer qualified to be your child’s parent? No, he or she, that parent has just gone to jail, will forever still be the parent? Exactly. And that is why the court really doesn’t like this part at all. The court will be most reluctant to send a parent to jail, or, or any sort of punishment, because that punishment is not forever, after that punishment if that parent who’s just got punished want to seek revenge, so the game is forever going. So, it’s a difficult area. Indeed.

Raphael Wong  56:17
Indeed. Now, so far we’ve talked about divorce or children matters in general. I wanted to highlight a few things that are not necessarily unique but more relatively more unique in Hong Kong compared to other jurisdictions, when it comes to children matters. Now, now, we talked about how domestic helpers is, it’s very usual in Hong Kong. Yes. And how often do you see domestic helpers come into play, or being weaponized, for example, by the parties in in children matters in resolving children matters.

Felix Li  1:00:39
The parties will be keen to involve domestic helpers as part of the ammunition presented to the lawyers. So in that sense, parties will always come to you or come to me and say, Is this useful is this useful? But I’ve got the domestic helper on our side, or the domestic helper has, has evidence or witnessed or something’s witnessed something. So that’s one area, namely, to use the domestic helper as an eyewitness, or maybe use that because of, of the text messages he has, she has with the other parent. The other aspect usually would be the for a party to say, look, he’s fighting, care and control. But in effect is just a domestic helper doing audit duties. The father or the mother actually needs to go to work, or she or are they have their own affairs, they don’t really spend time with the child, it’s to domestic helper. So that’s the other aspect. Generally speaking, the Hong Kong courts, of course, they know the reality of many parents relying, especially working parents relying on domestic helper and this is generally accepted. So I’ve had clients coming up to me and ask, so can I limit the other parent whenever he or she spends time with the child, he or she has to be present. And, and the client thinks this is this is basic, because I can’t remember it was a he or she been, but that parent doesn’t need to work. So all the time, all the time that parent gets with the child, he or she can spend really, personally, whereas the other one has to work. So I said to him, look, it doesn’t work like this, you can’t limit then of course, then then that client didn’t understand that, well, the access is for the parent, you get. You asked him to court to give them access between the domestic helper and the child. Well, that’s the best the situation can be. So, to answer your question, if I don’t know compared to maybe some Western countries where this domestic helper culture is less developed, or not preferred, this is this is one thing that the Hong Kong courts will generally accept, that working parents rely on domestic help on child care, this is this is not abnormal.

Raphael Wong  1:03:44
And you will often see cases where the party was simply fight for the custody of the domestic helper or the win over the contract of that domestic helpers so that they will enhance the chance of getting the the care and control…

Felix Li  1:04:00
Well, that’s a matter of evidence, because as we all know, the domestic helper if she sided with one side, and then whatever she says, how much can the court really take into account? Or, like you say, the contract is signed between and it always is one parent and the helper, so there’s an element of self serving in there in that even if you present this person in court, even if she does well under cross examination, how much weight can the court really put on a domestic helper and after all, it is not the domestic helper is a domestic helper we, generally speaking we all know it’s all it’s always subject to change.

Raphael Wong  1:04:49
Indeed, well this this topic can be quite broad because after all, apart from domestic helpers, you can also have grandparents helping to look after the kids, so this just goes on and on but it’s just simply highlights that children matters sometimes although we try to limit it between the husband and wife, unfortunately, some third parties interests may be involved and this is just a guess just part of life. Now, apart from domestic helpers I also just wanted to discuss with you which I personally have difficulty with is the ECA – extracurricular activities. In Hong Kong kids simply are subject to countless ECAs. We all know that after school, they will have ECAs and I have seen judges where they commented that, hey, the parents time over the kids should trump ECA. But obviously, we need to strike a balance. We need to have some degree of ECAs. And at the same time, we need to look after the child’s, the ability to spend time with the parents, perhaps this judge, how would you find this exercise? Is it difficult for you to gauge or how much time we should give the child to have ECAs and allocate the rest of the time to the parents having access?

Felix Li  1:06:26
Well, first of all, every family is different. How long is a piece of string? We can’t say there is a right number of ECAs. It all depends. Each family is different and it’s also dependent on the type of education, schooling and they’ve committed to children to. But I think generally I can, I can, I can add to that is if the parties are already going through a divorce, which means the time spent with a child has now been split, when before as the family the father and the mother can spend time together with the child when the child is free. And, and Raphael when you talk about ECAs, we are talking about children generally speaking from primary school onwards. So the parents need to understand that being child-focused, and when the court look at the interests of the child, there’s only certain amount of free time in a child’s routine. Since primary education, assuming it is full time, which means a normal school day, which be, let’s say from eight to three in the afternoon and then plus all these ECAs, homework, need to eat, need to wash up, need to sleep, there’s really not much time in terms of the child and the child needs to relax also. So even if for families which are not going through divorce, they are also facing the same problem of spending quality time with their child because the child is made so busy. And I’m not going to comment whether that’s right or wrong. That’s a cultural thing. But you’ve raised a topic of ECAs, so on the assumption that child children do go to ECAs and do go to full time school, full day’s school, then, if you look at it from a child’s point of view, there’s really not so much time left, or perhaps the weekends. So the parents in a divorce setting, say need to appreciate the fact that they are now splitting the already limited free time off the child into two slots because they’re no longer able to see the child and spend time together. So seen from that light that again, they shouldn’t argue because there’s only so much time if you really care about the child and want the child to have of course you want to see them and you want the child to continue to love you, that we all understand. But from the point of view of ECAs if it got, if it got to a point where a parent’s say, look, you can’t even see the child over the weekend because I have lined up ECAs from Saturday 9am till 6pm, if you really want I can give you those times, but you have to take the child to do this and then that and then you can you can travel with the child you can talk to the child in between, you can go for fast food, have a McDonald’s before the next class… if it gets to that, my personal view is, look, if we take a million steps back and treat seeing the non-residing parent or I don’t like labelling, but Raphael you, you know what I mean to access parents or whatever you call it now, but in future hope it’s just called the parent which is not normally residing with the child, if we take a million steps back and think meeting the other parent is an ECA, that is a must trump over all other ECA, nobody in their right mind would accept the child needs to go play football, needs to go taekwondo, needs to play the violin, over seeing the other parent. That’s crazy. To me.

Raphael Wong  1:10:54
I totally agree with you and my experience is that this is unfortunately a very common theme, where during the litigation, one party would just jam-packed child’s diary with nonstop ECAs. And let’s just explain or described, the party would request that the other parties do take the child to attend to all the ECAs and assume that he or she can spend quality time with the child, even after the tiring ECAs. So it’s just unfortunate that this is one of the recurring theme that we see often…

Felix Li  1:11:32
Well look at it the other way. If you look at adults now, look at ourselves. Of all the things that you tried to learn during your childhood, be it taekwondo, be, you know, all the sports or the music or the other things: how many of those have you managed to continue up to today? Well, maybe some for you. But generally not a lot, for a lot of people none. So, if you look at it that way, but do you still talk to your parents? Of course you do. So, it’s a no brainer. Cannot compare ECAs with seeing the other parent. Yes, it’s it’s the wrong starting point.

Raphael Wong  1:12:19
Indeed, indeed. Now, another thing that I want to explore is, which is probably more unique to Hong Kong, is that space are limited. And very often families will live in a very confined space, and they have limited resources to find alternative accommodations. From your perspective, does it promote more arguments between like divorcing spouse? And if so, how that affects children who might have, unfortunately, witness or hear the parties’ arguments, sometimes physical, sometimes police might be involved.

Felix Li  1:13:07
Yes, but that is unavoidable. It’s a fact that Hong Kong has limited living space. That’s why the house is skyrocketing. That’s why we’re now known to be one of if not the most expensive city to live in. So this is a social problem. When argument arises within those four walls, yes. I think you’re absolutely correct, whether it is divorce or not. A lot of parties, they don’t go through divorce, but they argue every other night, then the child witnesses, that’s equally bad. But if putting it back into divorce context, my only comment would be if the parties have decided to get a divorce, then they should be responsible enough to make the first move and acknowledging the most important move is to be physically apart. Well, I don’t want to go into the law, but the generally speaking, if nowadays, if one party wants to get a divorce, eventually he or she will get it. Yeah. However much the other party will want to contest. So and a lot of times even at the very beginning, only one of them want to get a divorce. After a few months, it would become a situation where the other party would also want to get a divorce because of the things the other one has done to him, him or her. So my only comment would be once that decision is made and Raphael we have a lot of clients coming when coming to us, we find them still living in the same room. Yes. And it could be for ridiculous period of time. And some of them are even more ridiculous when you find out they have to resources to move out. So I’ve had cases when they, they are certainly not confined to small places, they have to financial resources. They just don’t move out for technical reasons obviously, for whatever reasons. And it’s, it’s irresponsible. So I can, I can’t resolve the living the space problem for anybody. If anything, I would say, for people who have decided to get divorced, you must have a plan to be separate, physically separated with the other with the other party. When there’s when there’s children involved. It’s never good for them.

Raphael Wong  1:16:04
Now, Hong Kong being international city, right. And it’s very easy for one parent to take the child to leave Hong Kong. And we’ve done cases as well, where we need to help a party to say return either return the child from overseas to Hong Kong, or, or prevent the child from leaving Hong Kong. What’s your take on this? Like, what is the court’s role in this respect, and how can a lawyer help the client in protecting the child?

Felix Li  1:16:40
My take is whether we like it or not, this will be a popular topic. And this, there will only be more and more cases of such nature. Namely, we are talking about people moving in and out of Hong Kong, I’m not necessarily using the word relocation in the sense that in the Chinese context, we talking about moving to another place and never coming back again. I think in this day and age, we talk about global citizens, people can make choices at different phases of time, living at some places. But we all know the mobility is very advanced these days, everybody is just one plane ticket apart, physically. And of course, we have all these electronic devices to keep in touch instantaneously. So, the world has evolved in such, it makes traveling much easier. And it makes this kind of decision to go somewhere for a period of time, more and more popular. So seen from that, then we get cases where, for example, a family decides to go to a new country together. And then somehow it doesn’t work out as they thought. And that led to the relationship also not working out, then ended up one party coming back to Hong Kong, with or without the child, then the other party would shout, say where’s my child? Why have you taken? You cannot call this an abduction. So that’s one type of cases. The other type is simply people families in Hong Kong every day, I’m sure many of them are contemplating the possibility of moving out. Yes, again, I try to avoid the word relocation. So trying out different places, and maybe that leads to a divorce or sometimes it’s the other way around. When the relationship don’t work, when parties accept, this is the end of their relationship. There needs to be a divorce, then they react by moving to another country, for example, if they have relatives in another country, or they want to start anew or they’ve met a new partner elsewhere. So we get all these types of different reasons and all legitimate and sensible. It’s it’s all understandable. So what I’m trying to say is that there’s no malice in these types of applications to court in in that usually nine out of 10 is driven by the genuine intent, yes. But again, then the problem is you can’t split the child physically into two. So it’s it’s always a problem of these kinds of cases when you talk about the child arrangement.

Raphael Wong  1:20:02
So you try to avoid the word relocation, but unfortunately I have to bring you back in. Alright, because I’ve heard that I’ve heard, heard that relocation is probably one of the hardest decision a judge will have to make simply because the implication that it will it will have on the child, as you just said, if one party has remained in Hong Kong, and the other party is decided to take the child overseas, for whatever reason, then they will be split apart for sure. And how to balance the courts, the child’s time with one parents and the other would be quite tricky, and very often a factual exercise. Do you agree that relocations are probably very, if not the most difficult question, a judge can…

Felix Li  1:20:56
Well, I can’t speak on behalf of judges I can. I’m fortunate enough myself both as a barrister and I’ve had opportunity to help as a judge. But mostly throughout my experience as a barrister, I’ve been fortunate enough to to be involved in quite a number of relocation cases. I suppose if you look at the end results, you could say it is, in my experience, one of the most difficult areas because it ended up fighting, it ended up having full judgment published on this, whereas a lot of my cases are settled. And I take pride in that. So sometimes I do, I do realize that too, how come out of the cases that I fight, the ones usually ended up having a judgment and having to trouble the courts to go through a full trial a lot of them are relocation. And that speaks for itself. So the one party wants to go to another country, the other party doesn’t. That’s enough. And there’s not that much room to have a complete settlement. So usually, when I’m faced with these kinds of cases I still encouraged to parties to at least narrow down the issues. And realistically looking at that the country, the physical distance, because nowadays, it could be as far as the other side of the world, or it could be as close as just across the border. So we get all all types of relocation cases. And if it is physically closer, there are the possibilities. It’s not as dramatic as the word may seem. And the issue of relocation usually links also with the issue of custody, yes. Where some, some people might think, well, it’s obvious when I’m allowed to take the child to the other half of the world, hours away from you, and then, of course, then the custody should follow. Then there are people who counter argue that is exactly because you’re taking the child away from me, and I already lost that kind of daily control or information of what my child is doing, then we should have joint custody. So these are academic discussions, but generally speaking, I stick to my word. Even with relocation cases, parties still try to settle. Even if realistically, you know, the chances of a complete settlement is very slim. They’re always they’re always points that you can agree to, to narrow the scope of argument and that would be beneficial to the parties because Raphael you and I both know how busy the family court diary is. If you tell the court I’m going to argue this, this and that and that A to Zed. Are you asking the court for a 10 day trial? If you insist Sure. Wait two years. Yeah. Right. Then if you if you manage to narrow the scope, okay, we still need to fight it because the issue of relocation itself cannot be resolved. Still, there are many, many small points in sight, you can still come to not necessarily an agreement, but you can, you can make the courts life a bit easier to say, look, if the child is allowed to go to another country, I would accept this, this, this, this and that. But I still fight for the child remaining in Hong Kong. Whereas the other side can equally do the same. If the child remains in Hong Kong, I would then accept this, this, this and that. But I still fight for the child leaving with me to another country. So that is beneficial to the parties themselves, because then they can, there’s a better chance that they get the determination, the trial dates, and eventually the result earlier.

Raphael Wong  1:25:44
You also talked about good point that’s relocations, not only that it is very difficult thing from the courts perspective, or from the lawyer’s perspective, it’s also very time sensitive. Sometimes the parties might need to take out the relocation application very quickly. But simply the court doesn’t have time to accommodate. And it takes a very long time for the court to come up with a decision. And not only that, it takes time, but it’s also very expensive, or it could be very expensive, because you need to supply the courts with a lot of information, there are a lot of groundwork to be done. And this brings me to my next point, which is cost orders in general in children matters. Because I think, from a lot of parts perspective, this is quite important. Unlike normal litigation, where if you win, if I can call it that way, or if you succeed in your request, then you might be able to recover some costs. But a very unique feature on children matters is that you usually do not get cost because the cost perspective is that both parties are trying to act in again, the best interest of the child, so the court is unlikely to penalize the party by way of costs. And how do you what’s your view of this idea of no cost orders on children matters and how does it affects, for example, when you’re giving legal advice to the client?

Felix Li  1:27:21
I think it is correct. I think it is up to us as lawyers to explain to the clients, perhaps piggybacking on what I said earlier on, we need to tell clients that fighting children cases are so unique in the legal system, that it calls for special treatments, almost loosely use that word. And it’s really for us lawyers to tell the clients up front that look, if you want to fight children matters. You’re not fighting for yourself, you’re fighting for the child. And therefore don’t expect the winning/losing scenario, and don’t expect legal costs being recovered. But then assure them of course, that goes that cuts both ways. You’re also not expected to be paying the other side’s legal costs, even if eventually the court rules more in favour of what the other side is proposing. Right. So that gives, and I think the principle must be correct, because that gives the comfort zone for parents to genuinely fight for what he or she thinks is best for the child. And, of course, they’re not in agreement, they’re going through a divorce. And at this day and age, there are a lot of relationship breakdown actually coming down from the different take on how to raise a child. So it’s it’s only normal that they are in polarized positions. But I’m quite sure currently the this no order as to cost principle as a starting point. One of the big rationale behind is to provide that comfort zone for the parent in so far as whatever you propose is sounding reasonable.

Raphael Wong  1:29:37
Yes. We have covered quite a number of topics today and children matters is so broad that obviously we can’t just cover every single topic in just this podcast. There are other areas such as like guardianship matters or parent deeds or Cap. 481 which we call the, essentially the child making a claim against their estate. And you have this whole idea of whether this children matters is a social issue versus a legal issue and all these matters. So we just have to leave these things to another podcast.

Felix Li  1:30:19
Sure. It’s been a pleasure talking to you.

Raphael Wong  1:30:21
Thank you very much for coming. Thank you.

1:30:28
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