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THE LAW REFORM COMMISSION OF HONG KONG - page 169 / 360

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arrangements as to the person with whom a child is to live.732  The Scottish provision states that it is:

“an order regulating the arrangements as to:

 (i)with whom; or

 (ii)if with different persons alternately or periodically, with whom during what periods,

a child under the age of sixteen years is to live”.733

6.80A residence order is conceptually different from a custody order and is more similar to an order of care and control We recommend that legislation provide for a residence order.  

Definition of residence order

6.81We prefer the greater detail of the language of residence orders in the English and Scottish legislation to that in the Australian provision.  However, we consider that an even more detailed definition of residence order is needed for Hong Kong.  We noted the existing order of “care and control” which “equates to having the day-to-day care and responsibility for the child”.734  We saw some merit in retaining the existing language of “care” but not that of “control,” which has some negative connotations.  

6.82We were attracted to the Australian section 64B(6) which uses the term “day-to-day care, welfare and development” in the definition of a specific issues order, but we concluded that “development” had more long-term implications which were not appropriate for a residence order.

6.83We recommend that the definition of a residence order incorporate a reference to the parent in whose favour the order is made having responsibility for “the day-to-day care and best interests of the child”.  We recommend that the definition would be “a residence order is an order settling the arrangements as to the person with whom a child is to live and who has the day-to-day care and best interests of the child.”

Non-parents

6.84Section 12(2) of the Children Act 1989 Act provides that if a residence order is made in favour of a non-parent then he is granted parental responsibility, with all that it implies.  We consider section 12(2) of the Children Act 1989 to be a useful provision, and we recommend enactment of a similar provision in Hong Kong.

Contact order

732 Section 8 of the Children Act 1989.

733 Section 11(2)(c) of the Children (Scotland ) Act 1995.

734 Idem.

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