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THE LAW REFORM COMMISSION OF HONG KONG - page 190 / 360

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6.173Earlier, we recommended the adoption of the Australian guidelines for setting out the duties of the Official Solicitor or separate representative or other person acting as guardian ad litem.  We recommend the adoption of the Australian guidelines for setting out the duties of lawyers representing children and parents in the juvenile court for care and protection and supervision orders.  We also recommend that special training in how to interview and represent children and parents be provided to lawyers for these types of cases.797  Only lawyers with this special training should handle these sensitive and complex cases.  We intend that these recommendations should also apply to care and supervision orders being made under the matrimonial ordinances in the Family Court.

Power to refer for social welfare investigation

6.174The power to refer for social welfare investigation in matrimonial proceedings is contained in Rule 95 of the Matrimonial Cause Rules (Cap 179) with a similar provision, applying to any proceedings, contained in rule 61F of the District Court Civil Procedure (General) Rules (Cap 336).  Both rules are confined to any matter concerning the welfare of the child.  We had considered whether it was necessary that they should specify that they apply to guardianship and wardship, though it could be argued that the court has an inherent power to request such a report in wardship.  We concluded that the existing powers were sufficient.

Enforcement of orders

6.175With the increasing mobility of local families, considerable concern has been expressed by family law practitioners about enforcement or recognition of local custody or access orders outside the Hong Kong Special Administrative Region, both in the Mainland, and overseas.  The Hague Convention on the Recognition of Divorces and Legal Separation 1971 has been extended to Hong Kong by sections 55-62 of the Matrimonial Causes Ordinance (Cap 179).  This recognises divorces in other contracting states but does not cover findings of fault or orders of custody ancillary to the divorce proceedings.798  

6.176The Judgements (Facilities for Enforcement) Ordinance (Cap 9) and Foreign Judgements (Reciprocal Enforcement Ordinance) (Cap 319)799 deal with enforcement of civil judgements from the United Kingdom, jurisdictions listed in the schedules or subsidiary legislation, which include Commonwealth and non-Commonwealth countries.  Mainland China is not included.  Article 267 and 268 of their 1991 Civil Procedure Law allows for foreign judgements to be recognised and enforced on the basis of either a treaty or reciprocity.

6.177We recommend that a mechanism for mutual legal assistance for the enforcement of orders for custody, access, residence and contact, and orders for the return of a child removed unlawfully from Hong Kong, be arranged with the Mainland.

797 See chapter 5 referring to the training of separate representatives in Australia.

798 Section 61 (3).

799 This ordinance defines a judgment in personam as excluding matrimonial matters and guardianship of infants.

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