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THE LAW REFORM COMMISSION OF HONG KONG - page 146 / 360

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5.58The Guardianship Act 1968, as amended, now makes it mandatory for the Family Court to ascertain the wishes of the child if the child is capable of expressing them.  It is also mandatory to take account of the wishes “to such an extent as the court thinks fit, having regard to the age and maturity of the child”.  Henaghan noted that the majority of custody, access and guardianship disputes are resolved by counselling and mediation, and yet there is no legal requirement for the child’s views to be taken into account in those processes.648  

5.59While there is a statutory requirement to take the child’s wishes into account in any court disposition, care must be taken that those views are genuinely expressed and are not the result of blandishments or other inducements held out to the child by one of the parents.  Equally, questions asked of the child to determine his views must be carefully worded:

“For children to be treated with respect and dignity, their views must mean their views, not their responses to adult questions based on the needs of an adult dispute resolution process”.649

Counsel for the Child

5.60Chart noted that it is usual for the legal counsel appointed to represent the child to attend the mediation conference.650  Counsel for the Child can also undertake informal conciliation or mediation between the parents.  In practice, the counsel “plays a critical role in ensuring the child’s interests are protected”.651

5.61The court must appoint Counsel for the Child if there is to be a contested hearing in custody or access matters, unless no useful purpose would be served by such an appointment.652  There has been much debate about whether counsel represents the child’s wishes, which would be consistent with article 12 of the United Nations Convention on the Rights of the Child, or whether counsel represents what counsel thinks is best for the child.653  

5.62Flatley warned that the reduction in resources for the Counsel for the Child which has occurred in recent years in New Zealand, was a false economy.654  If firm directions and decisions are not made at an early stage, the case is more likely to go for a defended hearing and then may be settled at the last minute by the counsel assisting the parties.  Ludbook suggested three roles for the Counsel for the Child: independent overview; advocate; and mediator.655  Flatley responded by stating that in practice Counsel for the Child have to combine all three approaches.  He therefore recommended that “rigorous” training in issues of child development and law are

648 Henaghan, “The 1989 United Nations Convention on the Rights of the Child”, in Rights and Responsibilities, papers from Symposium on Rights and Responsibilities of the Family, Wellington, October 1994, 32, 36.

649 Idem.

650 Section 30.

651 Chart, supra at 606.

652 Section 30 of the Guardianship Act 1968 as inserted by section 18 of the Guardianship Amendment Act 1980.

653 Henaghan supra at 36.

654 “Family law practice; the preventative versus the reactive approach”, in Rights and Responsibilities, papers from Symposium on Rights and Responsibilities of the Family, Wellington, October 1994, 161.

655 New Zealand Guide to Family Law, (1988), at 149.

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