6.106The only clear reference to the wishes of the child is contained in section 3 of the Guardianship of Minors Ordinance (Cap 13). This provides that in any proceedings relating to the custody or upbringing of a minor or his property the court shall give “due consideration to - … the wishes of the minor ….”
6.107There is only an implication that a similar stricture applies to proceedings under the Matrimonial Causes Ordinance (Cap 179) or the Matrimonial Proceedings and Property Ordinance (Cap 192). Section 48C of the Matrimonial Causes Ordinance only refers to that part of section 3 of the Guardianship of Minors Ordinance which deals with the welfare principle as being the first and paramount principle, and not to that part dealing with wishes of the child. Yet, section 3(1)(a) of the Guardianship of Minors Ordinance refers to “[in] any proceedings before any court (whether or not a court as defined in section 2)”. That definition is confined to the High Court (now the Court of First Instance) or the District Court.
6.108Section 1(3)(a) of the Children Act 1989 provides that the court is under a duty to have regard to the child’s wishes and feelings considered in the light of his age and understanding. It is one of the factors in the checklist which was considered earlier. Article 12.1 of the United Nations Convention on the Rights of the Child provides that:
“States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”
Views of the child
6.109The Scottish Law Commission preferred the term “views” to the term “wishes and feelings” which was enacted in the Children Act 1989 as:
“it recognises that a young person may be ... capable of balancing his ... immediate wishes and feelings against long term considerations and the interests of others and [then] coming to a considered view as to what was the right course of action in the circumstances”.754
6.110We recommend that a provision on the views of the child should apply to all proceedings concerning children. It would also be clearer if each matrimonial ordinance specifically referred to the need to hear the views of the child. We recommend that the language of the United Nations Convention on the Rights of the Child should be adopted so that the term “views” rather than “wishes” of the child is enacted in matrimonial legislation.755
How and when child’s views taken into account
754 Ibid at paragraph 2.63.
755 We are referring here to the Guardianship of Minors Ordinance, (Cap 13), Matrimonial Causes Ordinance (Cap 179), Matrimonial Proceedings and Property Ordinance (Cap 192), Separation and Maintenance Orders Ordinance (Cap 16), and the Domestic Violence Ordinance (Cap 189).