Court/Judicial body: Hong Kong District Court
Date: 20 April 2008 CRC
Provisions: Article 18: parental responsibilities
Case summary
Background: H applied for joint custody of his two children and leave to bring the children to reside in New Zealand, where he had moved following his separation from W because he could not find suitable work in Hong Kong.
Issue and resolution: Custody of children. The Court made an order for joint custody, but granted W the final decision in the event of disagreement over matters concerning the children.
Court reasoning: The Court found that the starting point in such cases is to grant joint custody unless there is a good reason not to do so, and that joint custody may be ordered for the purpose of recognizing the role of both parents in the children’s upbringing. Since the parties in the present case had demonstrated some willingness to communicate and co-operate, the Court made the order for joint custody.
Excerpt citing CRC and other relevant human rights [46] From what I could gather from H’s Written Submissions, his grounds are: (i) Article 18(1) of the UN Convention on the Rights of the Child obliges state parties to use their best efforts to ensure recognition of the role of parents in protecting the interests of children and that both parents have common responsibilities for the upbringing and development of the child. … [58] It is clear that a joint custody order may sometimes in appropriate cases be made for the purpose of encouraging parents to overcome their differences and co-operate for the benefit of their children. Joint custody in such circumstances can serve the purpose of recognising the role of both parents in the children’s upbringing. [emphasis added]
CRIN comments: CRIN believes that this decision is consistent with the CRC. Courts should recognise of the role of both parents in a child’s upbringing and consider the workability of any joint custody arrangements with a view to the best interests of the child.
Citation: [2008] HKCU 949; FCJA 973/2004 (30 April 2008)
Link to full judgement: http://legalref.judiciary.gov.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=61443&QS=%2B&TP=JU