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6.134Article 12.2 of the United Nations Convention on the Rights of the Child provides that:

“For this purpose,772 the child shall in particular be provided with the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”

6.135The criteria for appointing a separate representative for a child can be stated in legislation, regulations or a Practice Direction.  This would give guidance to the court and encourage more frequent appointments.  Counsel could be appointed where there are allegations of child sexual abuse, or violence in the family; where the child is in fact living with a person other than a parent (for example, a grandparent); where siblings are proposed to be split between the parents; in other complex cases such as where parents are in extreme conflict or highly dysfunctional.  The criteria for appointing a separate representative could also include cases where the custody investigation, or the evidence supplied by the parties, appear to be inadequate.

6.136The Australian list of criteria is useful as a checklist for guiding the court on the circumstances where it is appropriate to appoint a separate representative.773   Since we were undecided whether the criteria should be included in legislation or not, submissions are invited from the public in this consultation exercise.  We also recommend that a separate representative of the child should be appointed on a more frequent basis in Hong Kong.

Guidelines for duties of separate representative

6.137Separate representation of children, by way of Counsel for the Child, is a prominent feature of the New Zealand family dispute resolution system.  The Boshier report recognised that every effort should be made to ensure that the resource of counsel for the child is used effectively.774  To help in this, “the court [should] adopt a more flexible approach to the appointment of counsel, by considering at each phase of a case whether an appointment is necessary and for what purpose.”775  At the outset of the case the tasks which are expected of counsel need to be specified with clarity.776

6.138The Australian Family Court has guidelines which specify that the duty of the separate representative is, inter alia, “to ensure that all matters and witnesses relevant to the child’s welfare are before the court and to assist the court to reach a decision that is in the child’s best interests”.777  They should ensure that proceedings are not delayed by the parties, and that the child is not subjected to

772 This is referring back to Article 12.1 which deals with a child expressing his views.  For text see supra.

773 The criteria were set out in Re K [1994] FLC 92-461 at 80.  See chapter 5 supra.

774 Boshier, New Zealand Family Law Report, executive summary (1993).  See summary in Boshier, same title as the report, in Family and Conciliation Courts Review, vol 33, No 2, April 1995, 182-193.

775 Ibid at paragraph 10.11.9.

776 Ibid at paragraph 10.11.8.

777 “Guidelines Promulgated by the Family Court for separate representatives of children appointed pursuant to section 65 of the Family Law Act”, Attachment A of the Family Law Council Discussion Paper, Involving and Representing Children in Family Law, (May 1995).

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