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THE LAW REFORM COMMISSION OF HONG KONG - page 141 / 360

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where the court’s welfare jurisdiction is being exercised, in particular relating to the medical treatment of children, and the child’s best interests are not adequately represented by one of the parties, and

in cases involving allegations of child abuse, whether physical, sexual or psychological.

Guidelines

5.42The existing guidelines of the Family Court describe the duty of the separate representative as, inter alia “to ensure that all matters and witnesses relevant to the child’s welfare are before the court and to assist the court to reach a decision that is in the child’s best interests”.632  Representatives should ensure that proceedings are not delayed by the parties and that the child is not subjected to unwarranted psychological testing.

5.43It is important that the separate representative is perceived as an officer of the court and as neutral and independent of the parties.  The separate representative can cross-examine relevant witnesses to ensure that all the information relevant to the best interests of the child are brought out.  In certain cases, a child may be mature enough to be represented as a party to the proceedings.  The original report of the Family Law Council recommended that in such a case, an advocate for the child receiving instructions directly from the child would be appropriate.  This would not be the role of the separate representative.633

Court orders for separate representation

5.44Section 68L(3) of the Family Law Act 1975 makes provision for court orders for separate representation.  The court may make such an order:

“(a) on its own initiative; or

(b)on the application of:

(i)the child; or

(ii)an organisation concerned with the welfare of children; or

(iii)any other person”.634

632 “Guidelines Promulgated by the Family Court for separate representatives of children appointed pursuant to section 65 of the Family Law Act”, Attachment A of the Family Law Council Discussion Paper, Involving and Representing Children in Family Law, (May 1995).

633 Representation of Children in Family Law Proceedings, June 1989, Paragraph 17.  In contrast, the separate representative would act as amicus curiae to ensure that all the relevant evidence on the welfare of the child would be placed before the court.

634 Section 68L(3).

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