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THE LAW REFORM COMMISSION OF HONG KONG - page 186 / 360

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ordinances.789  He can also be involved in custody or access proceedings under section 10 of the Guardianship of Minors Ordinance (Cap 13).

6.156We started our review of the powers of the Director of Social Welfare from the principle of equality of treatment between children who are separated from a parent as a result of a divorce and those separated as a result of being made subject to a care and protection order.  As far as possible, children dealt with under different ordinances should only receive different treatment if this can be justified on the grounds of fairness, or because it is necessary in order to protect them.  This is in line with Article 9 of the United Nations Convention on the Rights of the Child.790

6.157Article 9.3 states that:

“State Parties shall respect the right of the child who is separated from one or other parties to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.”  

Definition

6.158There is no definition of a care order or supervision order in the matrimonial ordinances.  It would be useful to have such a definition rather than have to study the Protection of Children and Juveniles Ordinance to see the parameters of the powers of the Director under such orders.  We recommend that there should be a definition of a care order and a supervision order in the matrimonial ordinances.  We also recommend the retention of the power to order care and supervision orders in guardianship disputes and any disputes concerning the best interests of a child.

Contact

6.159Section 34C(6) of the Protection of Children and Juveniles Ordinance (Cap 213) only allows the court to make a contact order on an application to vary or discharge a care order.  Section 10 of the Guardianship of Minors Ordinance (Cap 13) allows the court to make an access order on the application of the parents or the Director.  There is no clear provision allowing a child who is the subject of a care order to have access to his parents.  Therefore, we recommend that parents whose children are made the subject of care orders under the matrimonial ordinances should be entitled to have  orders made to secure regular contact between them and their children.  We also recommend that section 34C(6) of the Protection of Children and Juveniles Ordinance (Cap 213) be amended to allow the court to make an order for contact when a care order is being made.

Assessment

789 See sections 13-15 of the Guardianship of Minors Ordinance (Cap 13) and sections 48-48B of the Matrimonial Causes Ordinance (Cap 179).

790 Article 9.1 provides that State Parties shall ensure that a child shall not be separated from his…parents…except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child”.

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