Raphael Wong discusses the complexities of divorce in Hong Kong, particularly focusing on the best interests of children involved. He outlines key concepts such as custody, care and control, and access, explaining how the courts prioritize children’s welfare over parental preferences.
Raphael emphasizes the Family Court’s jurisdiction, the importance of co-parenting, and the role of mediation in resolving disputes. Moreover, he warns against parents using children as bargaining chips, stressing the need for open communication and cooperation to create a stable environment.
To conclude, Raphael advocates for prioritizing children’s needs to minimize the negative impacts of divorce.
SHOW NOTES:
00:30 Custody, care and control, access
02:27 Jurisdiction of the Court
03:54 The best interest of the child
04:38 What parents should avoid!
05:27 The importance of communication
06:28 Always putting children first!
TRANSCRIPT
Care and Control and Best Interest of the Child
Divorce can be a challenging endeavour for the parties, and everyone involved, especially when children are in the picture. In Hong Kong, the best interest of children plays a crucial role in how the courts decide on children matters. Today, we’ll explore what it means and how they shape the decisions made by the Court.
Custody, care and control, access
When parents decide to separate or divorce, the court steps in to ensure that the child’s best interest is protected, and that means the court’s decision might not necessarily be in line with what the parents want. Very often, the biggest dispute between the parents is care and control of the child, that is, to put it simply, who should the child live with, on a daily basis.
Unlike the concept of custody, which provides for the right to make important decisions, care and control refers to the everyday decisions and responsibilities for the child’s upbringing. This includes matters like studying, discipline, healthcare, and daily routines. The parent who does not have care and control shall have access. When a parent is having access to the child, the care and control temporarily shifts to that person. So, it is better to understand the concepts of care and control and access simply as division of time. The parent who has care and control generally means the child would spend most of the time with him or her, but he or she would also take on the responsibility to look after that child. Unfortunately, the responsibility aspect is often overlooked by the parents when they are fighting over care and control.
Care and control can be granted solely to one parent or jointly to both. However, in order for joint care and control to happen, apart from the ability of each parent to look after the child and the child needs, there should be good rapport and a strong collaborative effort between the parents.
Contrary to care and control, custody is usually granted to both parents jointly as the Court acknowledges the role of the parents to their children which should not be extinguished upon divorce.
Jurisdiction of the Court
It is important to bear in mind that the Court retains jurisdiction to make orders on children’s arrangements until they are 18. So, before they turn 18, these arrangements can always be varied based on the needs of the Children and the circumstances of the case. Thus, the parents would need to co-parent with each other even after separation. The court always encourages the parties to discuss and agree on children matters between themselves. If the parties are unable to do so, the Court would have no choice but to make a ruling. To aid the Court in making relevant decisions, typically the Court would call for a Social Investigation Report in which a social welfare office, an independent 3rd party and also trained personal, would act as eyes and ears of the court, and then to make non-binding recommendations to the Court as to what would be the children’s best interest. In complex situation, the Court might also call for clinical psychologist report to assess the needs or wishes of a child or even to interview the child directly. If the Court sees fit, a parties’ access right might be limited to defined access at certain time and place or for it to be supervised. The Court has very wide discretion when it comes to making children arrangements.
The best interest of the child
As mentioned above, the court has very wide discretion when it comes to children matters provided that it is in the children’s best interest. When determining what is the best interest of the child, the Court is not limited to consider any particular factor or factors. However, generally they would follow a “welfare checklist” which includes several factors, such as family background, the ability of the parents, the child’s age needs and his/her wishes or feelings. The goal is to create an arrangement that promotes stability, continuity, and a healthy parent and child relationship.
What parents should avoid!
Divorce can be challenging, and very often in heated dispute, the parents turn hostile and forgot to act in the best interest of the Children.
Any loss to parenthood in the end is a loss for the child. Therefore, it is crucial for parents to prioritize the well-being of their children and avoid using them as bargaining chips in divorce proceedings.
Using children as bargaining chips can have detrimental effects on their emotional and psychological well-being. It can create feelings of insecurity, confusion, and resentment towards both parents. Children should never be put in the middle of conflicts or used as leverage to gain an advantage in divorce negotiations.
The importance of communication
Instead, parents should focus on open communication, cooperation, and finding solutions that prioritize the best interest of the child. This means considering the child’s needs, maintaining a positive co-parenting relationship, and working towards a fair and equitable resolution. By doing so, parents can create a stable and supportive environment for their children during and after the divorce.
In the interest of the children, the Court would often direct the parties to attempt mediation, as a form of alternative dispute resolution. In mediation, Parents can discuss and negotiate various aspects of children matters with the help of a neutral 3rd party.
If a party unreasonable fails to attempt mediation, there is a possibility that the Court would make an adverse costs order against that party.
Always putting children first!
After all, it is not the court’s role to be the parent of the child, or to teach the parties how to be a parent. It is also impossible and impractical for the Court to rule on each and every dispute between the parties on children matters. In the end, it is up to the parents themselves to raise their own children, even if they decided to part ways.
Remember, children deserve to grow up in an atmosphere of love, support, and understanding. By putting their needs first and avoiding using them as bargaining chips, parents can help minimize the negative impact of divorce on their children and foster their healthy development.
This video is for informational purposes only. Its contents do not constitute legal or professional advice.
