In fact, the LRC’s consultation document does recognise the issue of domestic violence and says the courts will need to take special care in “applying the new joint parental responsibility model where family violence is alleged.” It goes on to say, “…while it is generally in the best interests of the child to have regular contact with both parents, in a small minority of cases, protecting the children and a spouse from the threat of violence is a more important consideration.”
In the document, the LRC points to what it calls serious shortcomings in Hong Kong’s current law on domestic violence and calls for a review and reform of the legislation to improve its effectiveness and scope. It also recommends the courts be given the power to suspend access and contact orders when there are incidences of family violence.
However, some legal experts and advocates are still concerned. They say there is a lack of sensitivity and understanding of family violence issues throughout the legal, law enforcement and even social welfare systems in Hong Kong.
Shirley Kong Sui-ting, a post-doctoral fellow at the University of Hong Kong, has done extensive research on domestic violence, especially intimate partner violence. This occurs when partners are not in a domestic setting, but remain in close contact with each other. Victims tend to suffer from multiple forms of violence, from physical to psychological to sexual.
Kong says Hong Kong has not caught up with the international definition of intimate partner violence and this increases the risks of co-parenting where there is a history of domestic violence. Likewise, the lines defining child abuse are blurred. For example, it is not considered child abuse for a child to witness intimate partner violence. Yet, seeing one parent being battered by the other can cause psychological issues and trauma. In the UK, intimate partner violence can constitute an offence that bars the abuser from contacting their child.
Kong thinks there should be an official assessment framework in place to assess the risk of co-parenting. Such a framework would be welcomed by Ms C, who has joint custody of her daughters aged two, four and six with her ex-husband.
Ms C says she was not the only one who suffered family violence in her marriage, and that her daughters were also targets of abuse. She went through six months of mediation before starting divorce proceedings. As a former kindergarten teacher with a background in early child education and psychology, she says she was fully aware of the drawbacks of raising a child in a single-parent environment. But she believed that growing up in a violent household would be much worse.
“My children have been going to counselling sessions and play therapy since being abused,” she says. Even now, Ms C says abusive acts still take place during their father’s visits, and police have had to intervene on several occasions.
“My daughter told the welfare officer ‘I don’t want to see my daddy. My daddy used to always hit me’,” says Ms C. However, the officer told Ms C that the words of a five-year-old were not trustworthy. “If a five-year-old is not trustworthy, then why would the judge believe in a 30-year-old businessman?” says Ms C, raising her voice. The rationale for joint custody may be that it is in the best interests of the child and their rights to have contact with both parents, but Ms C questions if her child had the opportunity to be heard.
Meanwhile, Ms C says her ex-husband gives her the impression that he only shows up when he feels like it. “Every time he messages me a few hours prior [to visits] and says he doesn’t feel well.” One time, she says she saw him tagged in a friends’ social media post – out drinking after he skipped out of a visit with his kids. On top of this, Ms C says she is in dire financial straits because he fails to make his child support payments.
Ms C feels like she is the only one who has been fulfilling parental responsibilities since the joint custody order was made. “I have always agreed with the concept of co-parenting,” she says, but adds that when the other parent does not value their relationship with their children, she cannot see the point in granting them parental responsibility.