best interests of the children”.673
6.7It is arguable that the welfare principle in section 3 of the Guardianship of Minors Ordinance (Cap 13) does not apply to guardianship proceedings. This is because the welfare principle is limited to proceedings, inter alia, dealing with the “upbringing” of a minor.674 The sub-committee agree that the word “first” is unnecessary and may cause confusion. For the removal of doubt, we recommend that it should be made clear that the welfare principle guides all proceedings concerning children, including questions of guardianship, maintenance or property.
6.8The concept of welfare is retained in the Children Act 1989 and the Children (Scotland) Act 1995. However, the Australian Family Law Council recommended that the term “best interests” was more in conformity with the language of the United Nations Convention on the Rights of the Child.675 The Council recommended that:
“the adoption of wording of international conventions, to which Australia is a signatory, should as far as possible, apply in relation to wording in all cases where an international convention of relevance applies”.676
This recommendation was adopted in section 65E of the Australian Family Law Reform Act 1995. The sub-committee recommends that the term “best interests” is more appropriate for modern conditions in Hong Kong than the term “welfare”. It is also more in compliance with our international obligations under the United Nations Convention on the Rights of the Child. Section 3(1)(a)(i) of the Guardianship of Minors Ordinance (Cap 13) should be amended to read “shall regard the best interests of the minor as the paramount consideration….” Consequential amendments should be made to the other matrimonial ordinances.
Statutory checklist of factors
6.9Should there be a checklist of factors to guide the court in making a decision in guardianship and custody proceedings? Or should the scope for decision-making for the judge be left unfettered? Or is his scope for decision-making limited because he feels he should follow the recommendations of the social welfare officer’s report on custody or access? Section 1(3) of the Children Act 1989 provided a checklist of factors for the court to pay particular regard to when making a decision in
673 Section 5(3), as inserted by the Marriage and Children (Miscellaneous Amendments) Ordinance (Ord No 69 of 1997).
674 See subsection (1).
675 Article 3.
676 Report, The Operation of the (UK) Children Act 1989, recommendation at paragraph 49. March, 1994.