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THE LAW REFORM COMMISSION OF HONG KONG - page 155 / 360

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Consultation Paper.

No-order principle

6.15This principle is contained in section 1(5) of the Children Act 1989 - the court must not make an order unless “it considers that doing so would be better for the child than making no order at all”.  The rationale for the principle is that the court should not intervene except where the parties fail to agree future arrangements for the child.684  The Scottish provision in section 11(7)(a) is similar.  The Australian provision in section 68F(2)(k) of the Family Law Act 1975 provides: “whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.”  The rationale of the Family Law Council in not recommending the adoption of the English provision was that there were practical difficulties, as an order relating to the residence of the child may be needed for applications by the parents for separate units of local authority housing.685  

6.16The sub-committee understands that similar requests may be made by government departments in Hong Kong such as the Housing Department and Housing Society.  The sub-committee recognise that divorcing parents in Hong Kong want some recognition by way of an order regulating the arrangements for the child, whether these are by agreement or imposed by the court.  Given Hong Kong’s mobile population, a court order regulating residence and contact is of particular importance in giving security to the parents that the child would not be removed unlawfully by either of them.  The sub-committee note the rationale for the no-order principle but recommend that it should not be adopted in Hong Kong as it is unsuitable for local conditions.

Part B - Parental responsibility and rights

Concept of parental responsibility

6.17Before the Children Act 1989 parental rights and duties in England were based on guardianship.  The emphasis was on rights and authority over a child, rather than on parental responsibility for his welfare.  It was also not possible to say that the powers and responsibilities of guardians were the same as those of the parents.686  On the death of a parent a testamentary guardian687 would act with the surviving parent.

6.18The Children Act 1989 abolished the concept of guardianship, except for guardianship of a child by a third party after the death of a parent.  It substituted the concept of parental responsibility.  This is defined in section 3(1) of the Children

684For fuller arguments on the pros and cons of the principle , see chapter 3 supra.

685 This was based on the advice of the English Law Society.  See chapter 5 supra in relation to the Family Law Council report, The Operation of the (UK) Children Act 1989, at paragraph 48.  

686 See Family Law Review of Child Law: Guardianship, English Law Com (1985: Working Paper No. 91)supra.

687This is a person appointed by the parent, by deed or will, before he died to look after the child.

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