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THE LAW REFORM COMMISSION OF HONG KONG - page 176 / 360

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6.111Section 3(1)(a)(i)(A) of the Guardianship of Minors Ordinance (Cap 13) makes clear that the court need only give consideration to a child’s wishes “if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so”.  Section 1(1) of the Children Act 1989 refers to wishes in the context of  “where a court determines any question ....”  This was criticised by the Scottish Commission,756 as restricting wishes  to be taken into account only when a section 8 application is opposed.  It is important that the child’s wishes are taken into account even if an order is not being opposed by one parent.  

Scotland

6.112The Scottish section on views is free-standing as there is no checklist in the Scottish legislation.  It also deals with the mechanism for expressing the views.  Section 11(7) of the Children (Scotland) Act 1995 provides that:

“... in considering whether or not to make an order under subsection (1) above757 and what order to make, the court ... taking account of the child’s age and maturity, shall so far as practicable:

(i)give him an opportunity to indicate whether he wishes to express his views;

(ii)if he does so wish, give him an opportunity to express them; and

(iii)have regard to such views as he may express”.

6.113The Australian provision on the child’s wishes is incorporated into the amended checklist of section 68F of the Family Law Act 1975, to be considered with all the other factors in the checklist.758  Considering our earlier recommendation that a statutory checklist of factors should be established, we recommend that the child’s views should be one element in the checklist of factors rather than a free-standing section.  The child’s views should be balanced with the other factors when the judge is making a decision in the child’s best interests.  We recommend the repeal of section 3(1)(a)(i)(A) of the Guardianship of Minors Ordinance (Cap 13).

How the views of a child are expressed

6.114Section 3(1)(a)(i)(B) of the Guardianship of Minors Ordinance refers to the court looking at material information, including a social welfare officer’s report.  The relevant Australian provision states:

“68G. (2)The court may inform itself of wishes expressed by a child:

(a)by having regard to anything contained in a report given to the court under subsection 62G(2); or

756 Paragraph 5.26 of the Report on Family Law, (1992: Scot Law Com No 135).  See chapter 4 supra.

757 This is relating to parental responsibilities or rights, or guardianship or the administration of a child’s property.

758 See chapter 5 supra.

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