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THE LAW REFORM COMMISSION OF HONG KONG - page 291 / 360

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centres which already provide counselling to families, who can then be a source of referral.

12.119When a family relationship is in crisis the legal system can be used, as it is perceived to be either the only service or the most appropriate.  Therefore, more publicity and education of the public is needed to encourage families to seek assistance from local family service centres at an early stage of conflict, or when problems are first encountered.  These local centres would be staffed, inter alia, with professionally qualified mediators who would not provide counselling services.  This would assist the resolution of family conflict before approaches are made to court.

12.120We recommend that community based family mediation services should be available to the public and that there be more publicity and education to encourage early referral to such services.

Approving community mediation

12.121The Australian Family Law Reform Act 1995 provided a mechanism for community based counselling and mediation organisations to become approved organizations under the Family Law Act 1975.  Section 13E places a duty upon the minister to publish a list of approved organizations.  

12.122We recommend legislative provisions similar to the provisions in the Australian Family Law Reform Act 1995 which provided a mechanism for community based counselling and mediation organisations to become approved organizations.  We recommend that a similar scheme be established in Hong Kong with funding provided by government to approved organisations.  The government would work in partnership with such organisations as regards the quality of the service, continuing supervision and training of the mediators and other relevant matters.

Child’s voice in the mediation process

12.123Henaghan noted in New Zealand that the majority of custody, access and guardianship disputes were resolved by counselling and mediation and yet there is no legal requirement for the child’s views to be taken into account in those processes.1253  However, the Boshier report recommended:

“that a new category of referral be introduced for parties engaged in mediation in the Family Conciliation Service, where the child’s ... wishes re(sic) custody and access are in question, and it is inappropriate for the Mediator to seek this information him/ herself”.1254

1253 “The 1989 United Nations Convention on the Rights of the Child”, “Rights and Responsibilities”, Papers from the International Year of the Family, Symposium on Rights and Responsibilities of the Family, Wellington, October 1994, 32, 36.

1254 Supra at paragraph 8.7.2.

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