Current Law and Practice in Hong Kong
2.1Part A of this chapter examines the various legislative provisions which govern guardianship, custody and access to children, setting out their effect and perceived shortcomings. Other matters such as child abduction, emigration and the interaction of private and public law on children are briefly discussed in Part B, and the method of dispute resolution of such cases in the Family Court is addressed in Part C.
Part A - Current legislation
a) Guardianship of Minors Ordinance (Cap 13)
2.2Section 3(1) sets out the principles that govern the conduct of proceedings. These are that:
(a)“in any proceedings before any court ... the court:
(i)shall regard the welfare of the minor as the first and paramount consideration and in having such regard shall give due consideration to -
(A)the wishes of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and
(B)any material information including any report of the Director of Social Welfare available to the court at the hearing ....”
2.3“Minor” is defined in section 3 of the Interpretation and General Clauses Ordinance (Cap 1) as a person who has not yet attained 18 years. The court is also to take cognisance of the equality of the rights and authority of the father and the mother, except if the child is born out of wedlock.66 These rights and authority shall be “exercisable by either without the other”. The concept of joint guardianship is not referred to in the legislation.
2.4The High Court in Re Y & Anor67 relied on Halsbury’s Laws of England68 to hold that the court would take the wishes of an infant into consideration if the infant was of an age to exercise a choice. That appeared to be 14 for a boy and 16 for a girl. However, the court accepted that the modern practice was that each case
66 Section 3(1)(b). Then the father would have to apply for a court order under section 3(1)(d) for some or all of the rights and authority that a father of a legitimate child would have.
67 [1946-1972] HKC 378.
68 (3rd ed) vol 21.