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THE LAW REFORM COMMISSION OF HONG KONG - page 154 / 360

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contested section 8 applications and in all applications by the local authority for care and supervision orders.677  Section 68F(2) of the Australian Family Law Act 1975, as amended,678 provides a checklist to assist the court in determining a child’s best interests.679

In favour

6.10The arguments in favour of a checklist are: it would provide greater consistency and clarity; it is more systematic; all professionals could use the same checklist; and parents and children would know the basis of the judge’s decision.680  Those who commented on the Scottish Law Commission’s proposals were in favour, with the exception of the legal profession.681  The Irish Guardianship of Infants Act 1964 has defined welfare under various criteria - physical, social, intellectual, moral and religious.  These criteria may seem out-dated today compared to the psychological emphasis of the English list.

Against

6.11The arguments against were outlined by the Scottish Law Commission: it may lengthen proceedings; judges may take a mechanical approach; legal advisers and social workers would use their own checklist anyway; and the welfare principle was all encompassing.682

6.12On balance, the sub-committee were of the view that the checklist would also assist social welfare officers in preparing their report for the court, as they could use the list to ensure that all aspects of the best interests of the child were encompassed in the report.  Judges would be able to identify more clearly where they differed from the social welfare officer’s report when they give reasons why they have not followed its recommendations.  There would be less allegations made of judges applying their own subjective judgement, or cultural values.  We recommend a statutory checklist of factors to assist the judge in exercising his discretion in determining custody or guardianship proceedings.  

6.13Members of the sub-committee felt that the checklist must reflect cross-cultural issues, as the Australian Family Law Act 1975 has attempted to do.  The sub-committee recommend the adoption of the checklist set out in section 1(3) of the English Children Act 1989, which is shorter and more precise than section 68F(2)

6.14The sub-committee welcome views on whether  section 68F(2)(d) of the Australian Act should also be adopted though at this time we reach no conclusion on whether it should be included.683  The draft is at Annex 1 of the

677 The local authority is roughly equivalent to the Social Welfare Department.  See chapter 3 supra for the detailed checklist.

678 This was amended by the Family Law Reform Act 1995.

679 It is set out in detail in chapter 5, supra.

680 Paragraph 5.21 of the Scottish Law Commission, Report on Family Law (Scot Law Com 1992: No.135).

681 Ibid at paragraph 5.23.

682 Ibid at  paragraph 5.22.

683 It provides that account be taken of the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.  Note the influence of the wording of Article 9.3 of the United Nations Convention on the Rights of the Child.  See infra.

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