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THE LAW REFORM COMMISSION OF HONG KONG - page 191 / 360

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Consolidation of ordinances

6.178Strictly speaking, consolidation is the exercise of bringing together in a single piece of legislation all provisions dealing with the particular subject, and does not include reform of the existing law.  In practice, however, consolidation and reform often go hand in hand.  At the moment the provisions for children are scattered throughout many ordinances, as we saw in chapter 2.  

6.179We take the view that Hong Kong’s private law provisions on guardianship and custody should comply with the principles set out in the United Nations Convention on the Rights of the Children, the Basic Law and the International Covenant on Civil and Political Rights.  One advantage of consolidation (apart from making the law more accessible both to the public and to legal practitioners) is that it would give the Administration an opportunity to ensure that all legislation governing children does so comply.  The problem is in determining which ordinance is the most suitable for the insertion of new principles.  We accept that detailed proposals on how to amend the existing legislation are essentially matters for the Law Draftsman.  We do not make recommendations on whether the public law provisions should be consolidated with the private law provisions, as in any event the public law provisions are outside our remit.   

6.180We think it is important that, as far as possible, the provisions dealing with disputes relating to children, arrangements on divorce, guardianship, disputes with third parties, or disputes between parents without accompanying divorce proceedings, should be consolidated into one existing ordinance.  With the exception of one of our members, we propose that our recommendations and the existing substantive provisions on guardianship and custody should be incorporated into one consolidated ordinance.  There should also be one definition of “child” and of “child of the family” applying across the ordinances.

Policy co-ordination

6.181It is important that there is appropriate policy co-ordination for the needs of children and the family.  It hinders operational efficiency, implementation of new policies and co-ordination when the policy responsibility is split between two bureaux, the Health and Welfare Bureau and the Home Affairs Bureau.  The Health and Welfare Bureau is responsible for the Guardianship of Minors Ordinance (Cap 13), and the Protection of Children and Juveniles Ordinance (Cap 213) and shares responsibility with the Security Bureau for the Domestic Violence Ordinance (Cap 189).  The Home Affairs Bureau has responsibility for the Matrimonial Causes Ordinance (Cap 179), the Matrimonial Proceedings and Property Ordinance (Cap 192), and the Separation and Maintenance Orders Ordinance (Cap 16).  

6.182We recommend that a single policy bureau should take over responsibility for creating and implementing policy for families and children and, in particular, all the matrimonial and children’s ordinances.  It is a matter

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