GBA Lifestyle News
By Kate Springer | July 27th, 2016

Foreign domestic workers in Hong Kong face many personal and legal obstacles on a daily basis — and so do their Hong Kong-born children, particularly those without proper identity documentation. Pathfinders’ CEO Kay McArdle discusses the situation, legal hurdles, and how the city’s social welfare system is failing these mothers and children.

A little background

PathFinders works to protect migrant mothers and their vulnerable children with counseling, food, shelter, legal support, educational workshops, and access to healthcare. Launched in 2007, the nonprofit has served more than 3,600 women, children and babies so far — and more than 400 in the first half of 2016 alone. A former lawyer who has lived in Hong Kong for 20 years, CEO Kay McArdle joined the group in 2013 and has been instrumental in influencing the policy and legal landscape.

5 things you should know, according to McArdle

1. The number of foreign domestic workers is on the rise

We’ve seen an exponential increase in foreign domestic workers coming here — 343,000 at the moment. This is a roughly 50 percent increase since 2006. One in seven Hong Kong women of childbearing age is a domestic worker. What blew my mind when I first started [at Pathfinders] was that about 10 percent of Hong Kong households employs a foreign domestic worker.

To be able to afford that, you’d assume that with financial stability would come education. And you might assume that these educated households would understand that some of these women will reproduce. But when they announce a pregnancy, or an employer discovers that they’re pregnant, they are treated in the most appalling way.

2. Education is a huge problem

I think it’s largely down to a fundamental lack of knowledge. Employers call us to ask what to do, and they are horrified to learn that they are expected to provide maternity leave, protection and medical checkups. So there’s still a lot of education that needs to happen.

The lack of training of employers is a problem. In Singapore, you at least have to do an online training course. Here, there’s no training, no background check — anyone can employ a domestic worker. I think the Equal Opportunities Commission would do well to educate people that harassment and discrimination issues apply to domestic workers and they have those same rights, just like any other employee.

3. Employee discrimination laws are supposed to protect FDW

The Employment Ordinance prohibits termination on the grounds of pregnancy, and the Sex Discrimination Ordinance protects foreign domestic workers against discrimination. Both of those statutes carry civil and criminal sanctions. But the deterrents for employers not to break the law are insufficient because the labor department has enforced low to zero criminal prosecutions.

Women are left with the option to pursue a civil claim; but with no victim support, housing or income the reality is that the system is stacked against them. Most cannot afford to stay and pursue justice. The employer moves on and hires a replacement worker. Meanwhile, the foreign domestic worker is prohibited from working again until her legal claims are settled and even then, is typically blacklisted.

4. The biggest victims are the children

Women who lose access to health care [after an employer fires them] are giving birth on the street or in the park. They’re thrown into mental desperation — begging for food and living in deplorable conditions. Children then born to these women are often homeless too, without any access to healthcare.

The child’s immigration status follows that of the mother or, in the rare case where the father is still around or traceable, the father. If the father is around then the child can acquire the father’s nationality and sometimes also Hong Kong residency status. We help the children and women to trace the fathers. However, in most cases, the father is no longer around.

In the cases where the child follows the mom’s immigration status,  if the mom is an illegal immigrant or a Recognizance holder, then the child will have her status and typically no identity documentation. We work to establish the child’s paternity if the father can be traced. We also help the child obtain nationality papers, passports and documentation in the mother’s home country as well. In 2015, 71 percent of the fathers were living in Hong Kong.

5. Hong Kong’s child protection laws are wildly outdated

The whole of the social welfare system fails these people and especially the babies. To be born an immigration overstayer with no access to food, shelter, healthcare or justice is wrong. Our child laws date back to the 80s. The whole system is broken.

There’s an upcoming Children’s Bill in LegCo. The idea is to create for the first time an umbrella piece of legislation that looks after every aspect of a child’s life. The reality, however, is that the legislation, in our opinion, fails to do this. All it does is collate the existing pieces of legislation, which are largely divorce-related, and add a couple of new things.

It’s insufficient, and it means that the most vulnerable, neglected and abused children in Hong Kong are still utterly failed. It’s unacceptable that these kids are being born on the street, and a small charity like ours is filling a massive social and welfare gap. We are actively working with LegCo and we are making in-roads to have collaborative discussions. But we need more of them. And we need to see change.

And looking toward the future?

What’d I’d like most urgently is to see all children in Hong Kong  being given the opportunity to register as ‘existing,’ and to be given an amnesty against being prosecuted as overstayers provided they register within a certain timeframe.

Whether it’s through Hong Kong or an international process — the courts and the system needs to recognize their existence. To be unrecognized and have no papers in life is heartbreaking. It’s unacceptable to have kids in Hong Kong in this position. They didn’t ask to be born, they just are.

Another aspirational goal would be for a dedicated government unit to deal with issues impacting migrant workers, train employers and do background checks. A big issue is the ping pong game you have to play — the shuffling between the police, the Labor Department, the Hospital Authority, Immigration, or birth registry, or the consulate.

I would also like to see a clear set of guidelines to be published, explaining to employers and employees what a healthy, happy, successfully managed pregnancy and maternity leave looks like for anyone who is imported labor in Hong Kong.