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THE LAW REFORM COMMISSION OF HONG KONG - page 173 / 360

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Arrangements for the children

6.98The provision dealing with arrangements for children is contained in section 18 of the Matrimonial Proceedings and Property Ordinance (Cap 192).746  In England, section 41 of the 1973 Act, as amended by the Children Act 1989,747 and section 11 of the Family Law Act 1996 provides that in any divorce, nullity or judicial separation proceedings, the court has a duty to consider whether, in the light of the arrangements proposed for the upbringing and welfare of the children, it should exercise any of its powers under the Children Act 1989.  The court is now required to have regard to the wishes and feelings of the child in the light of his age and understanding and the circumstances in which those wishes were expressed748.  In the absence of evidence to the contrary the court will have regard to the fact that:

“the welfare of the child will be best served by:

(i)his having regular contact with those who have parental responsibility for him and with other members of his family; and

(ii)the maintenance of as good a continuing relationship with his parents as is possible.”749

6.99The statement of arrangements for children will not normally be subjected to judicial scrutiny.  However, the court may direct that the decree absolute of divorce, or nullity or judicial separation be stayed where there are exceptional circumstances which justify the court giving such a direction in the best interests of the child.750  Section 12 of the Children (Scotland) Act 1995 is similar.  It has been suggested that the English and Scottish provisions comply with the principle of reducing intervention by government in the lives of families.751

6.100We prefer to retain section 18 of the Matrimonial Proceedings and Property Ordinance but we recommend that it is amended to include that the court shall have regard to the views of the child and the desirability of a child retaining contact with both parents, as is set out in section 11(4) of the English Family Law Act 1996.  

6.101Parents should have to prove to the Judge that arrangements for the children are the best that can be arranged.  The Judge should examine the future plans as to the child’s place and country of residence and the proposed contact with both parents, especially if one parent proposes to emigrate from Hong Kong.  If that burden on the court is lessened by the English section, then we do not think it is desirable from the child’s point of view.  We also recommend that for consistency with the other ages adopted in other provisions in matrimonial legislation, section 18(5)(a)(i) should be amended to refer to the age of eighteen.

746 This is similar to section 41 of the Matrimonial Causes Act 1973.  Criticisms of the English Law Commission on this matter in Chapter 3 have been noted.

747 Schedule 12, paragraph 31 of the Children Act 1989.

748 Section 11(3) of the Family Law Act 1996.

749 Section 11(4)(c) of the Family Law Act 1996.

750 See chapter 3. supra.

751 See chapter 3 supra.

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