Ordinance (Cap 383).
United Nations Convention on the Rights of the Child
1.9The UN General Assembly adopted the Declaration of the Rights of the Child in 1959. In 1989 the Convention on the Rights of the Child was adopted by the UN. The People’s Republic of China ratified the convention that year, and the United Kingdom in 1991. It was extended to Hong Kong in late 1994. Approximately 166 countries have ratified the convention. Article 1 of the Convention defines a child as a “human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier”.
1.10Article 41 provides that nothing in the Convention is to affect provisions in a State’s laws which are more conducive to the realisation of the rights of the child than the provisions of the Convention. Article 9 gives a right not to be separated from parents except in certain limited circumstances, for example “where the parents are living separately and a decision must be made as to the child’s place of residence.” Article 9(3) provides that “State parties shall respect the right of the child who is separated from one or both parents 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”.10
1.11The Convention refers to one of the provisions of the Declaration of the Rights of the Child which provides that the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection. Article 3(1) of the Convention provides “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. Article 18(1) obliges State Parties to use their best efforts to ensure recognition of the role of parents in protecting the interests of children and that both parents have common responsibilities for the upbringing and development of the child. This also applies to legal guardians.11
1.12Article 12 recognises that a child does have views which should be given weight in accordance with his age and maturity. Article 12(2) provides:
“for this purpose, the child shall in particular be provided 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”.
1.13The Administration of the Hong Kong Special Administrative Region are under a moral obligation, as far as practicable, to ensure that the substantive legislative provisions, and the way disputes on guardianship and custody are resolved, comply with the United Nations Convention on the Rights of the Child. However, unless any of its provisions are incorporated into domestic legislation, it is not
10 Note that it respects the child’s right to contact with both parents.
11 Article 18.