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THE LAW REFORM COMMISSION OF HONG KONG - page 108 / 360

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3.162Cretney and Masson pointed out that wardship (or the court’s inherent jurisdiction) is still valuable for the following cases:504

(a)where the superior skill and authority of the High Court is required (unless the rules relating to transfer succeed in allocating cases appropriately),

(b)where the speed with which orders can be obtained is critical,

(c)where injunctions are required to control the behaviour of a third party (unless reforms of the domestic violence legislation are introduced),505 and

(d)where some ongoing supervision by the court may be desirable.

Chapter 4

Comparative Law: Scotland

4.1This Chapter examines the Scottish Law Commission proposals in their Report on Family Law506 and the subsequent legislation implementing their recommendations.  The Children (Scotland) Act 1995 does not merely follow the precedent set by the English Children Act 1989.  The Scottish Commission had the opportunity to see what aspects of the 1989 Act were working and those that were not.  There have been calls over the years in Hong Kong from family lawyers and others that Hong Kong should follow the Children Act 1989.  Much can be gained in analysing why the Scottish Law Commission did not follow some of the English provisions and this has guided us in drawing up the most appropriate proposals for reform in Hong Kong.

Parental responsibilities

4.2The Children (Scotland) Act 1995 changed the law on the responsibilities and rights of parents.  Section 1 provides that a parent has a responsibility to his child:

(a)to safeguard and promote the child’s health, development507 and welfare,

(b)to provide in a manner appropriate to the stage of development of child

(i) direction,

(ii) guidance to the child,

504 Cretney & Masson, op cit at 579.  Wardship is only one use of the High Court’s inherent parens patriae jurisdiction.  It is open to the High Court to make orders under its inherent jurisdiction in respect of children other than through wardship.  See Bromley & Lowe, op cit at 459.

505 See Part IV of the Family Law Act 1996.

506 (1992: No. 135).

507 The United Nations Convention on the Rights of the Child, 1989 refers in article 18 to the parental “responsibility for the upbringing and development of the child”.

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