1

Children's Rights: The Child Welfare System in Hong

Kong

15 July 2016

Azan Marwah

Part 1: Basic Principles

Children are special!

(i) Govt/Courts have duty to protect them(ii) Best Interests/Welfare Principle

Positive Duty of HKSAR (1)

Positive duties on the Government and the Courts to protect children

• Common Law, • Statutes, and • Constitutional Law

Positive Duty of HKSAR (2)

Common law• “Parens patriae” principle – Sovereign is the

ultimate parent of all (see Calvin's Case [1572] Eng.R. 64, (1572–1616) 7 Co.Rep. 1a, 77 E.R. 377)

• Extended to protect children and non compos mentis adults

• Exercised by High Court, s 12 of Cap 4 – especially in wardship jurisdiction (see Re Y (minors) [1984] HKLR 204 at 206 per Jackson-Lipkin J)

Positive Duty of HKSAR (3)Constitutional and Statutory

Hong Kong Bill of Rights (Cap 383, s 8): Article 14 ‘Protection of … family…’

(1) No one shall be subjected to arbitrary or unlawful interference with his … family ... (2) Everyone has the right to the protection of the law against such interference or attacks.

Article 19(1) ‘Rights in respect of … family’The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Positive Duty of HKSAR (4)Constitutional and Statutory

Hong Kong Bill of Rights (Cap 383, s 8): Article 19(4)

Spouses shall have equal rights and responsibilities as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

Article 20(1) Every child shall have … the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.(2) Every child shall be registered immediately after birth and shall have a name.

Positive Duty of HKSAR (5)

Basic Law Protections for Children

Article 4The Hong Kong Special Administrative Region shall safeguard the rights and freedoms of the residents of the Hong Kong Special Administrative Region and of other persons in the Region in accordance with law.

See also Articles 36, 37, 38, 39, and 41, and Chapter VI

Positive Duty of HKSAR (6)Convention on the Rights of the Child (1)

• Life, care and protection (arts 3, 6); • Non-discrimination (art 2); • Recognition and protection of personhood including name,

nationality, identity, privacy and liberty (arts 7, 8, 16, 37); [cf. HKBOR art 20(2)]

• Civil and political rights including freedom of expression, thought, conscience, religion and assembly (arts 13, 14, 15);

• Economic and social rights including health care, standard of living and social security (arts 24, 26, 27);

• Cultural rights including education, development, play, leisure, indigenous and minority rights (arts 28, 29, 30, 31);

• Protective rights for those deprived of their families, refugees, placed in care, from violence, drugs, abduction and all forms of exploitation (arts 19, 20, 21, 25, 32, 33, 34, 35, 36); and

• Procedural rights including the right to be heard and protections in penal law (arts 12, 40)

Positive Duty of HKSAR (7)

Convention on the Rights of the Child (2)

Develop the common law See Derbyshire County Council v Times Newspapers [1992] QB 770, [1992] 3 All ER 65 (CA)

Interpret statutesSee Ubamaka v Secretary for Security (2012) 15 HKCFAR 743, 763 at para 43

Best Interests Principle (1)Best Interests of the Child

Guardianship of Minors Ordinance (Cap 13) (GMO)Section 3(1)(a)(i)

In relation to the custody or upbringing of a minor … in any proceedings before any court … the court shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to (A) the views of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and (B) any material information including any report of the Director of Social Welfare available to the court at the hearing

Best Interests Principle (2)Welfare Checklist (slimmed down)

• Wishes of child • Child’s physical, emotional and educational needs; • Relationship of child with parents and others• Effect on child of any change in circumstances• Child’s age, maturity sex, social and cultural background and other

relevant characteristics• Attitude demonstrated by child’s parents• Harm child has suffered or is at risk of suffering• Family violence • Capability of parents, and other relevant persons of meeting child’s

needs …

Best Interests Principle (3)Welfare Checklist (slimmed down)

• … • Practical difficulty and expense of contact and effect on child’s right

to maintain personal relations and direct contact with parents • Range of powers available to the court in the proceedings in

question; and • Any other relevant fact or circumstance

Applies in HK: SMM v TWM (Relocation of Child) [2010] HKFLR 308see also P v P (Children: Custody) [2006] HKFLR 305

Best Interests Principle (4)Limits to Best Interests

Carefully balanced against rights and freedoms of others (and the public)

See UN CRC General Comment 14, paragraph 39

Other statutory schemes (eg immigration) May be totally negated e.g. diplomatic immunity

Part 2: Issues in Child Protection

Positive and Negative Concerns(i) Positive rights: e.g. Birth registration, education,

healthcare, play (ii) Negative concerns: Abuse, neglect, abandonment etc.

Positive ConcernsStatutory protections & lacunae

• UNCRC – list of positive rights• Education Ordinance (Cap 279) - ss 3(1) and

74(1) • No specific protection for many others: e.g. Art 2

(LGBT discrimination), Art 24 (healthcare), Art 31 (right to play)

Negative Concerns• Violence, exploitation (prostitution, marriage,

labour), abuse (physical, sexual, psychological)• Abandonment and neglect• Corporal punishment (HRC Concluding

Observations (2013) at §16)• Inability to care

See OAPO ss 26, 27; Crimes Ordinance ss 123, 124, 135 etc

Part 3: Institutions(i) Courts(ii) Police, Immigration, Customs (law enforcement)(iii) Medical professionals(iv) Educational professionals(v) SWD(vi) NGOs (religious, non-religious)

Institutions (1)Courts

• Juvenile Court:- Care or Protection Orders

• Family Court (DCt):- DCRVO orders, Custody, Adoption

• High Court:- Wardship, inherent jx… (HCO s26)

Institutions (2)Social Welfare Universe

• SWD• IFSCs (general social work)• FCPSUs (protective services)• AU (adoption)• CFCU (foster care)• RWs• Subvention / NGOs• Procedural Guide / MDCCs

Part 4: ProblemsAll is not well… what can we do?

See e.g. UNCRC Concluding Observations (2013)UN Doc CCPR/C/CHN-HKG/CO/3 (2013)

Concluding Observations (1)i. No comprehensive plan to protect children’s rights (paras

10, 11)

ii. In effective allocation of resources to vulnerable populations of children (paras 13(c), 14(c)) “resource allocations to education and social welfare remain inadequate and do not effectively target the most vulnerable groups, particularly children of ethnic or linguistic minorities, asylum-seeking children, children living in poverty and children with disabilities”

iii. No reliable data collection (paras 17, 18, 60, 61)

iv. No independent monitoring / Children’s Commission (paras 19, 20)

v. Persistent discrimination against certain vulnerable populations of children (paras 29, 30, 60, 61)

Concluding Observations (2)v. Lack of legislation providing for best interests (paras 31,

32)

vi. Lack of consultation with children (para 38)

vii. Prevalence of sexual exploitation and abuse of children (paras 45, 46)

viii. Children in care left there without review (paras 53-55)

ix. Lack of mental healthcare services (paras 71, 72)

x. Segregation of ethnic minority children in “designated schools” (paras 77, 78)

(i) Child abandonment(ii) Children in care: delay, bureaucracy, resources(iii) Inadequate knowledge: Govt and NGOs(iv) FGM(v) ISIS(vi) Child Drop Boxes(vii)Duty to report?(viii)Unified Child Protection Court? (ix) Specialist judges, advocates?

Contemporary issues (3)

(thank you)