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THE LAW REFORM COMMISSION OF HONG KONG - page 152 / 360

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(iii)to promote a secure and certain environment for the child while he is growing up, in which the confidence and security of the person who is bringing him up may be an important element;

(iv)to protect the child from the risk of harm to his physical or mental health, his proper physical, intellectual, social or emotional development, or his general well-being;

(v)to recognise, to the greatest possible extent, the child’s own point of view, by ascertaining his wishes and feelings wherever practicable and giving due consideration to them, according to his age and understanding;

(vi)to ensure that, where parental responsibility is divided or shared, the people concerned understand what legal responsibilities and powers they can and should exercise in relation to the child;

(vii)to secure that, to the greatest extent possible, the legal allocation of powers and responsibilities reflects a state of affairs which is workable and sensible in everyday life.”

6.4The English Commission recommended that priority should be given to principle number (iii) rather than (ii) if there was a conflict.670  We consider that these objectives provide a useful guide in determining appropriate reforms for Hong Kong.

Welfare principle

6.5The definition of welfare in section 1 of the Guardianship of Minors Act 1971, whereby the welfare of the child was the first and paramount consideration, 671  

6.6In Hong Kong, section 3 of the Guardianship of Minors Ordinance (Cap 13) continues to use the terminology of the 1971 Act, and requires the court to regard the welfare of the child as “the first and paramount consideration.”  This formulation of the welfare principle is also adopted in Section 48C of the Matrimonial Causes Ordinance (Cap 179) as applying to that ordinance and the Matrimonial Proceedings and Property Ordinance (Cap 192).  Welfare is defined in section  18(6) of the Matrimonial Proceedings and Property Ordinance (Cap 192)672 to include the custody and education of the child and financial provision for him.  Section 5 of the Separation and Maintenance Orders Ordinance (Cap 16) has been recently amended to provide that “in making an order … the court shall have regard primarily to the

670 Ibid at paragraph 3.8.

671 J v C [1970] AC 668.  See discussion on the welfare principle in chapters 2 and 3 of this Consultation Paper.

672Section 2 provides that “custody” includes access and “education” includes training.

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