(b)subject to the Rules of Court, by such other means as the court thinks appropriate”.759
6.115We recommend that a child should be given the facility to express his views if he wishes, whether directly or indirectly.760 Once he has indicated a desire to express views, then the court must hear his views.
6.116We suggest that it would be useful to set out the mechanisms for ascertaining and expressing the child’s views. We recommend adopting a provision on the lines of the Australian section 68G(2), but adapted to insert “views” rather than “wishes.”761 With the adoption of this provision, we recommend the repeal of section 3(1)(a)(i)(B) of the Guardianship of Minors Ordinance.
Children not required to express views
6.117Section 68H of the Family Law Act 1975 in Australia provides that the court or any person is not permitted to require the child to express his or her wishes in relation to any matter. We recommend that children should not be required to express their views. To do so would place children under pressure by one or both parents to take sides in a dispute concerning the children’s best interests. However, we do not see the need for statutory provision to that effect on the lines of the Australian section 68H.
Age of maturity for the purpose of obtaining views
6.118Section 11(10) of the Children (Scotland) Act 1995 provides a presumption of maturity for a child of 12 or above.762 We recommend that there should be no age limit and the court should have unfettered discretion in deciding whether to hear a child’s views, irrespective of his age. We do not think that section 11(10) of the Children (Scotland) Act 1995 would be suitable for local conditions as such a presumption may be too inflexible in particular cases.
6.119A separate representative is a lawyer appointed to represent a child in family law proceedings.763 In Hong Kong that role, to a certain extent, is fulfilled by the Official Solicitor.764 The duties of the Official Solicitor under the Official Solicitor Ordinance (Cap 416) include acting as guardian ad litem or next friend to a person under disability of age.
759 This would deal with separate representatives.
760 This is via a report from a social welfare officer, psychiatrist or psychologist.
761See Annex 1.
762 Section 11(10) provides that: “Without prejudice to the generality of paragraph (b) of subsection (7) above, a child twelve years of age or more shall be presumed to be of sufficient age and maturity to form a view for the purposes both of that paragraph and of subsection (9) above.”
763 This is the term used in Australia. In England and Hong Kong the term used is the “Official Solicitor”.
764 See chapter 2 supra.