By The Association Concerning the Legal Rights of Victims of Domestic Violence
The government’s proposed co-parenting bill is a serious threat to the well-being of victims of domestic violence. It will empower perpetrators to continue their abuse after a marriage ends in divorce.
The bill, which is based on the Law Reform Commission’s 2005 Report on Child Custody and Access, looks good on paper. But it fails to give sufficient consideration to the unique circumstances of families with a history of domestic violence; it would increase the power of the perpetrator of abuse and risk escalation of violence – physical, psychological, financial and emotional.
In the Legislative Council’s welfare panel meeting on October 4, the Association Concerning the Legal Rights of Victims of Domestic Violence (ACLRDV) joined single mothers, women’s rights activists and social workers in objecting to the proposed co-parenting bill, which was tabled by the government and supported by the Law Society of Hong Kong.
On the same day representatives from single parents’ associations and women’s rights groups met legislators and several family lawyers to discuss child maintenance, or child support.
This is an issue that has been raised for decades: single mothers have little recourse if their ex-husbands delay or withhold child maintenance. This is essentially a form of financial abuse and enables the husband to exercise continued coercive control.
Globally, domestic violence is the most common form of violence experienced by women, and Hong Kong is no exception. Around 25% of Hong Kong’s families experience intimate partner violence, with women comprising the majority of victims
The ACLRDV’s submission on the co-parenting bill underscores how it is a cause for significant alarm, given that studies in different countries show that families with domestic violence cases make up the vast majority of family court cases.
Global data verifies this: in one court in Beijing, domestic violence has been cited as the main basis for filing for divorce, with 85% of women initiating applications stating they suffered from domestic violence.
According to the Inspectorate of Court Administration (HMICA) in the United Kingdom, domestic violence features in 70%-90% of cases going to family courts. According to academic Peter Jaffe, cited by US-based NGO DV Leap, domestic violence is raised in 75% of contested custody cases in US family courts.
Contrary to common belief, domestic abuse doesn’t end when a relationship ends, especially when the partners have children. Child custody and child maintenance often intersect with domestic abuse because many abusers use the culture of impunity in child maintenance and custody cases to exert power and control on their families.
The government’s unabashed insistence on implementing a co-parenting bill which effectively hands the perpetrator further tools to continue this abuse from afar, and its protracted inaction in resolving the issue of unpaid child maintenance, reflect the government’s apathy or ignorance when it comes to understanding the power dynamics at play in domestic abuse, and the need to protect women and children from further abuse.
Despite the prevalence of domestic violence in family court cases, only a few of them end in children being given no contact, indirect contact or supervised contact with the perpetrator of the violence.
This permissive system equips abusive men with ample opportunities and enables them to continue abusing and controlling their families.
This is regularly cited as a source of significant fear, stress and continued concern for their well-being by victims of family violence in Hong Kong, where the family court already operates on the presumptive joint parental custody model.
This arrangement has taken a high toll on abused mothers and children, ranging from psychological to physical harm. Mothers who raise genuine concerns about their abusive ex-partners often lose custody and/or parenting time with their children due to the court’s predisposition to see them as cunning, manipulative and uncooperative parents.
Abused mothers are also pressured to enter mediation with their abusers, despite research showing that child custody mediation greatly disadvantages and fails to protect victims.
Puja Kapai, Associate Professor of Law and Convener of the Women’s Studies Research Centre at the University of Hong Kong, refers in her submission to Legco to: “…the many stories of survivors who continue to battle with this mindset which unfortunately, appears to be fairly pervasive, and filters across the professional support that the women rely on, including legal professionals who advise clients not to raise arguments pertaining to domestic abuse in custody proceedings because the ‘court is applying the joint parental responsibility model as a default position and such arguments are viewed unfavourably by family court judges and could cost you access to your child’ and judges, who would treat suspiciously the circumstances in which such claims are raised (for example, at a custody hearing where such claims had not surfaced in earlier matrimonial proceedings).”
There is an extensive body of research from the UK, Australia, US, New Zealand and Canada – from which Hong Kong’s proposed model for its own co-parenting bill is drawn – which provides evidence that abusive parents, the majority of whom are fathers, often use family court and child contact to continue abusing and controlling their family.
The consequences can be lethal, with children paying the ultimate price with their health – physical, psychological and emotional – and sometimes, life.
Fortunately, there are signs that some family courts overseas are turning the tide, thanks to survivors’ campaigns. Earlier last month, on 2 October 2017, a new guideline for family courts in England and Wales came into effect, which would give children protection from abusive parents in custody disputes.
It put an end to the presumption that there should be “contact at all costs” with both parents, especially where the involvement of a parent in a child’s life would place the child or other parent at risk of physical and emotional harm.
Aside from child custody, child maintenance is another way for abusive parents to control and abuse their families. According to a UK study conducted by the Cooperative Bank and Refuge, a charity helping women and children experiencing domestic violence, 71% of women experiencing post-separation financial abuse reported that their former partner refused to pay child maintenance. In Hong Kong, there is little single mothers can do if their former partners refuse to pay.
Instead of pushing for the co-parenting bill, Hong Kong’s priorities ought to lie elsewhere. First, help stop financial abuse of divorced mothers and their children by setting up a maintenance board that will compel fathers to pay maintenance.
Second, do a comprehensive review of the way the family court handles child custody cases and extrapolate lessons for reform to address the significant and systemic gaps which enable the continuation of abuse.
Third, implement mandatory gender-sensitivity training on domestic violence for all professionals who work in the family court system, from social workers and psychologists to lawyers and judges. This is necessary to end biases against survivor mothers and to ensure that they and their children are protected from further physical and emotional harm.
Fourth, the family court ought to develop guidelines that are not only gender-sensitive but reflect an understanding of patterns of abuse evidenced by a checklist of mandatory considerations and declarations for cases that involve history and allegations of domestic violence.
Fifth, Hong Kong also needs an update of its Domestic Violence Ordinance and related protections in the Crimes Ordinance and the Offences Against the Person Ordinance, to ensure that financial abuse and coercive control are incorporated as offences, in line with the latest development in England and Wales, and also Scotland.
For far too long the Hong Kong government has neglected the critical plight of abused women and their children. As a progressive city, why Hong Kong’s proposed bill is a decade old in terms of its ideological basis is impossible to understand.
As jurisdictions around the world begin to listen to the voices of survivors and are moving beyond the reforms proposed here, it is time for our government to pay heed and do the same too.
November 25 marks the countdown of 16 Days of Activism to end violence against women, which will culminate on International Human Rights Day 10 December.
UN Women has declared that the theme for this year’s 16 Days of Activism is “Leave No One Behind”.
— UN Women (@UN_Women) November 22, 2017
Let’s take our cue and address the plight of abused women and children – a group with distinct vulnerabilities – and make sure they are not left behind.