The government's Social Welfare Department is mounting a publicity campaign, with this slogan: Marriage may end, but parenthood goes on. It is intended to foster a change in people's mindsets on the tricky matter of who should take care of the child of a broken home, following a divorce. A current public consultation covers this and other important points, and it is only right that the public's views on these matters should be carefully gathered and evaluated. Enacting laws covering the highly contentious areas of child custody and child access is an exercise fraught with numerous potential pitfalls, which the results of this public consultation process may well help to iron out at this pre-legislation stage.

The background to the current consultation stretches back over a decade. The present exercise is called the "Public consultation on the proposed legislation to implement the recommendations of the Law Reform Commission report on child custody and access". Hong Kong's Law Reform Commission has issued four reports on these topics, the last of which contained 72 recommendations to change the laws of Hong Kong in this regard.

The government's Labour and Welfare Bureau conducted an earlier public consultation on this same topic, back in 2011-12. The results of that were that, generally, the move toward introducing "the model" (see below) here in Hong Kong was welcomed by the public. However, at that stage many reservations were expressed about drafting the most appropriate actual legal provisions. Some respondents also questioned the level of social support to be provided. After re-thinking about them, and assurances that government and non-government bodies would step up their support services, the public again has the chance to comment on these revised draft legislative measures.

The legal changes proposed here would bring Hong Kong up-to-date with modern thinking on family law issues; Australia, New Zealand and England have already enacted similar legislative changes. Generally, there is a move toward legislating for "the model". This means that after a family break-up in a divorce, continuing responsibility for the child's welfare should become a requirement of both parents. The older approach was that one parent was often given custody of the child in these tricky circumstances. That too often led to diminished access, and certainly a diminished sense of responsibility, on the part of the parent denied custody. The child often effectively - but lamentably - "lost" one of his parents.

The move these days is for courts to order more "joint custody" arrangements, giving parity to both parents, and allowing the child to get the benefits of keeping in closer touch with both his mother and his father. My own view is that a child needs input from both a father and a mother, differing as these inputs will be, to help him or her to grow up secure and happy. These proposed laws will make it more likely for that to happen.

These proposed legal changes may help to reduce the incidence of parents fighting over who gets the child, which itself is important. These steps seek to link parental rights to facilitating parents in fulfilling their parental responsibilities. These parental responsibilities would end legally, if not morally, when their offspring reach the age of 18. A further proposal is to reduce the age at which a young person can get married without parental consent from the present 21 to 18.

A guiding principle here is of course that the best interests of a child from such a broken home should take absolute priority. Indeed, these recommendations rightly include introducing better mechanisms for the child's own views to be taken into account. The general idea is to better protect the child's rights - a goal that surely nobody can object to.

Under these proposals, major decisions concerning the child's upbringing would require the express consent of - or, at least, the notification to - the other parent in all cases. A new range of court orders is proposed on child custody, consolidating current and new practices in this regard.

The parents of children under the care of the Social Welfare Department would be able to apply for a court order to gain reasonable contact with their children in care. An unmarried father could acquire legal parental responsibility simply by signing the birth register as his child's father, rather than (as currently) requiring a court order to achieve that same objective.

The consultation now being conducted included a public forum last month. Views are also sought in writing, from members of the public. This public consultation ends on Friday, so if you would like to comment, please do so soon. Write to: parentalresponsibility_consult@lwb.gov.hk or to Team 1 at the Labour and Welfare Bureau, CGO, Tamar, or by fax to 2524 7635.

Let us hope this modernizing legislation, on a trouble-prone subject, will be enacted here in Hong Kong without any further delays.

(HK Edition 03/23/2016 page9)