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THE LAW REFORM COMMISSION OF HONG KONG - page 147 / 360

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required as the principles of social work decision-making play an important role in this work.656

Conflict of interest

5.63Counsel for the Child are family law specialists, they may in future be called upon to act for one of the parties.  Also, many of the lawyers are members of the regional legal aid committee and they may be required to make decisions about legal aid for the family in dispute.  Indeed, one committee asked Counsel for the Child for an opinion as to the chances of success of one of the parties in the proceedings.  He concluded “this intermingling of duties and responsibilities creates difficulties and impinges on the rights of family members as parties to proceedings”.657  The decision on legal aid should be made independently of those involved in that area of law.658  Certainly, there seems to be a conflict in counsel representing the child’s interests and subsequently acting in another capacity for the child’s family.

Children’s right to initiate proceedings

5.64Henaghan argued that children could apply to initiate proceedings under the provision that “any other person” can apply to court.659  Even though this may be doubtful, children over 16 can clearly apply for a review of any decision by a parent or guardian on any important matter.  The Guardianship Act 1968, as amended in 1991, enables a child of any age to apply to be placed under the guardianship of the Family Court in custody and access proceedings because of the difficulties created by these proceedings, or their duration.660  The court can appoint an agent to care for the child.  This provision was used by an 18 year old to free herself from the domination of her mother.661  However, the legislation does not allow a child to apply for access to the non-custodial parent.  Henaghan commented on the irony that unwilling children can be ordered by a court order to see a parent, but unwilling parents cannot be ordered to see their children.

Role of Counsel for the Child

5.65The prominent role of Counsel for the Child in the New Zealand system, despite the criticisms, is a way of protecting the interests of the child, rather than leaving that role exclusively to the judge, albeit aided by a social welfare officer’s report.  The Counsel for the Child often plays a mediating role for the parents in trying to persuade them to focus on the child’s needs.

656 Supra at 161.

657 Ibid at 162.

658 Ibid at 162.

659 This is section 11 of the Guardianship Act 1968.  Henaghan in Rights and Responsibilities; papers from Symposium on Rights and Responsibilities of the Family, Wellington, October 1994, 36, at 37.

660 Section 9A (1) and (3) of the Guardianship Amendment (No. 2) Act 1991 inserted into the Guardianship Act 1968.

661 X v X and X - Family Court of Hastings, 20 August 1992, Judge Inglis, unreported.

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