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THE LAW REFORM COMMISSION OF HONG KONG - page 138 / 360

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Delay

5.31The Council recommended that the Family Law Act be amended to include a provision requiring the court to process matters relating to children in a timely and expeditious manner.620  This has not been implemented.

Involving the child

5.32The Family Law Council, in their 1995 Discussion Paper, Involving and Representing Children in Family Law, suggested that there were three aspects to involving the child:

“(a)to give children the opportunity, as far as this is practical, to express their wishes in relation to decisions which will directly affect them;

 (b)involvement in the processes which arise from the functioning of the Family Law Act, as appropriate; and

 (c)ensuring that children do not feel a sense of exclusion from decisions or matters which directly affect them.”621

5.33The Family Law Council suggested that this approach was justified, not only from the research literature on how children handle divorce but in following the spirit of the United Nations Convention on the Rights of the Child.  The child’s wishes can be brought to the court’s attention by being included in a counsellors report, by appointment of a separate representative, by a court expert’s report, by interviewing the child, or (rarely) by proceedings issued by the child or on his behalf.

Wishes of the child

5.34Section 68G(2) of the Family Law Act 1975 deals with how the court informs itself of the wishes expressed by a child:

“The court may inform itself of wishes expressed by a child:

(a)by having regard to anything contained in a report given to the court under subsection 62G(2); or

(b)subject to the Rules of Court, by such other means as the court thinks appropriate.”

5.35Section 68H goes on to provide that “nothing in this Part permits the court or any person to require the child to express his or her wishes in relation to any matter”.

Separate representation

5.36The term “separate representative” usually describes a lawyer representing a child in family law proceedings.  This is similar to the role played by

620Recommendation 2, paragraph 22.

621 Ibid at paragraph 3.06.

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