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THE LAW REFORM COMMISSION OF HONG KONG - page 174 / 360

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Family proceedings

6.102Section 10(1) of the Children Act 1989 in England gives the court a specific power to make section 8 orders in any family proceedings.752  This would include wardship.  This may reduce the need for wardship where orders under section 8 can be made in lieu.  A similar provision to section 10(1) of the Children Act 1989 is recommended for inclusion in Hong Kong’s legislation.  It would also be useful to have a definition of family proceedings.

Change of surname

6.103Section 13(1)(a) of the Children Act 1989 provides that it is an automatic condition of a residence order that the child’s surname should not be changed without the written consent of each person with parental responsibility or with the leave of the court.  There is no similar requirement in legislation in Hong Kong.  We recommend  that a provision on changing a child’s surname on the lines of section 13(1)(a) of the Children Act 1989 be enacted.

Part E - The voice of the child

General principles

6.104The Family Law Council suggested that there were three aspects to involving the child in the dispute resolution system:

“(a)to give children the opportunity, as far as this is practical, to express their wishes  in relation to decisions which will directly affect them;

(b)involvement in the processes which arise from the functioning of the Family Law Act, as appropriate; and

(c)ensuring that children do not feel a sense of exclusion from decisions or matters which directly affect them.” 753

6.105This approach was justified on the basis of the research literature on how children handle divorce, and also to comply with the United Nations Convention on the Rights of the Child.  The child’s wishes can be brought to the court’s attention by being included in a social welfare officer’s report or other court expert’s report; by appointment of a separate representative; by interviewing the child; or (rarely) by proceedings issued by the child or on his behalf.

Wishes of the child

752 See Annex 1 infra.

753 Discussion Paper, Involving and Representing Children in Family Law (May 1995) at paragraph 3.06.  See chapter 5 supra.

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