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THE LAW REFORM COMMISSION OF HONG KONG - page 172 / 360

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6.96The Scottish provision provides that any person can seek an order, other than a person whose parental rights were removed by an order in favour of a local authority or by adoption.743  Section 10 of the Children Act 1989,744 which deals with those who can apply for a section 8 order without leave and those who can apply once leave is granted, is more relevant to the social realities of Hong Kong.  However, the provision restricting the right to apply without leave to “any person with whom the child has lived for a total of at least three years”745 seems restrictive for Hong Kong where the extended family plays a much larger role than in England.

6.97The limitation in section 10 of the Guardianship of Minors Ordinance (Cap 13) on the right of third parties to apply to court should be removed.  We see no justification for obstacles preventing interested third parties from applying for orders concerning children.  We recommend a provision on the lines of  section 10 of the English Children Act 1989, with the amendment of subsections (5)(b) and (10) to provide that no leave would be required if the child has lived with the applicant for a total of one year out of the previous three years.  The one year period need not necessarily be a continuous period, but must not have ended more than three months before the application.  

743 Section 11(3) of the Children (Scotland) Act 1995.

744 See chapter 3 supra.

745 Section 10(5)(b) and (10).  For full text see Annex 1 infra.

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