Options for Substantive Law Reform in Hong Kong
6.1This chapter brings together a range of options for reform of the law on guardianship and custody which we believe are necessary to protect and ensure the best interests of children, in accordance with the United Nations Convention on the Rights of the Child. Some of these reforms have already been suggested in Hong Kong. Others draw on experience in other jurisdictions, including legislative measures such as the English Children Act 1989, the Children (Scotland) Act 1995 and the Australian Family Law Reform Act 1995. The adoption of the reforms we propose will necessitate considerable legislative amendment, both to the Guardianship of Minors Ordinance (Cap 13) and to guardianship and custody provisions in a number of other matrimonial ordinances.
6.2Family law and family dispute resolution systems are at a critical stage of their history with many choices as to the way forward. There is a shift to an emphasis on parental responsibility; the encouragement of parenting plans; and more attention to the voice of the child in the whole process, either directly, or through increased use of separate representation. The sub-committee believes that there are considerable lessons to be learned from comparative experiences, and it is fully convinced that its underlying principle, that the reforms proposed should be tailored to the needs of Hong Kong, has been adopted.
Part A - General principles
6.3The English Law Commission formulated669 the following principles which should govern guardianship and custody law and proceedings:
(i)“to separate, as far as it is possible, the issues relating to the children from those relating to any remedies sought between the parents or other adults involved, and to give priority to the former;
(ii)to recognise and maintain the beneficial relationships already established between the child, other children in the family and his parents or other adults who have been important to him and to encourage the continuation of these relationships to the maximum extent possible in the light of changed family circumstances;
669 Review of Child Law: Custody, (Working Paper No. 96: 1986) at paragraph 3.7.