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THE LAW REFORM COMMISSION OF HONG KONG - page 118 / 360

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good faith.  The Commission’s recommendations543 were incorporated into section 6(2), which provides as follows:  

“A transaction entered into in good faith by a third party and a person acting as legal representative of a child shall not be challengeable on the ground only that the child, or a person with parental responsibilities or parental rights in relation to the child, was not consulted or that due consideration was not given to his views before the transaction was entered into”.

Views of the child

4.39Article 12(2) of the United Nations Convention on the Rights of the Child provides that:

“For this purpose,544 the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”

4.40The Commission made recommendations in the light of article 12 of the United Nations Convention, which are now incorporated into section 11(7) and (10) of the Act.  The Commission noted that in section 1 of the Children Act 1989 a court is bound, in opposed proceedings for a “section 8 order” to have regard to, among other things, the ascertainable wishes and feelings of the child.

4.41The Commission argued that:

“the fact that the two adult parties to ... a divorce action are content with proposed arrangements for the child does not necessarily mean that it is any less important to have regard to the child’s views.  ... There are many cases in which evidence of the child’s views is before the court even although the application relating to parental rights ends up by being unopposed.  It seems to us that it would be difficult to justify a provision which appeared to regard the child’s views as of less importance merely because an application was, or ended up being, unopposed.”545  

4.42The Commission recommended that:

“Rules of court should ensure that a child who is capable of forming his or her own views and who wishes to have his or her views put directly before a court in any proceedings relating to parental responsibilities or rights, or guardianship or the administration of the child’s property, has a readily available procedural mechanism for

543Ibid at 2.66.

544 “States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”

545 Supra at 5.26.

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