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THE LAW REFORM COMMISSION OF HONG KONG - page 119 / 360

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doing so.”546

4.43Section 11(7) provides that:

“In considering whether or not to make an order ... (relating to parental responsibilities or rights, or guardianship or the administration of a child’s property) the court:

(b) taking account of the child’s age and maturity, shall so far as practicable

(i)give him an opportunity to indicate whether he wishes to express his views;

(ii)if he does so wish, give him an opportunity to express them; and

(iii)have regard to such views as he may express.”

4.44Section 11(10) provides that:

“Without prejudice to the generality of paragraph (b) of subsection(7) above, a child twelve years of age or more shall be presumed to be of sufficient age and maturity to form a view for the purposes both of that paragraph and of subsection (9) above.”

This was intended to reflect “the long-standing Scottish approach to the views of minors above the age of puberty but would also, and more importantly, recognise the actual capacities of most young people in that age group.”547

Separate representation

4.45Section 11(9) provides: “Nothing in paragraph (b) of subsection (7) above requires a child to be legally represented, if he does not wish to be, in proceedings in the course of which the court implements that paragraph.”

4.46The Commission suggested that, even though the child is the “central figure”, it is unrealistic to recommend that separate legal representation had to be arranged in every case where a court was considering parental responsibilities and rights.

“However attractive such an idea may be in theory it would certainly be ruled out on grounds of cost to the legal aid fund.  There would be similar objections to any solution which made a report on the child’s views mandatory in every case.”548

Guardianship

Appointment of guardians by parent

546 Ibid at 5.29 (for example, by lodging a minute).

547 Ibid at 5.25.

548 Ibid  at 5.29.

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