1.Bringing the child into focus for family decision-making,
2.obtaining input from the child relevant to parental decisions,
3.providing impartial clarification and education for the child as needed, and
4.providing feedback to parents as the voice of the child.
12.125We have noted the mechanisms for listening to the views of the child in the litigation process. Section 11(7) of the Children (Scotland) Act 1995 provided that the court:
“taking account of the child’s age and maturity, shall so far as practicable
(i)give him an opportunity to indicate whether he wishes to express his views;
(ii)if he does so wish, give him an opportunity to express them; and
(iii)have regard to such views as he may express”.1256
12.126We recommend the adoption of a provision on the lines of an amended section 11(7) of the Children (Scotland) Act 1995 to provide a mechanism for considering the children’s views in the mediation process.1257 We also recommend that consideration be given to what mechanisms are needed to determine the child’s views so that these can be brought to the mediator’s attention.
Legal aid and mediation
12.127We note that the English Family Law Act 1996 provides statutory authority for their Legal Aid Board to provide mediation services.1258 It also provides that legal aid for representation will not be granted unless the person has attended a meeting with a mediator to determine the suitability of mediation. We suggest that legal aid for family mediation should be provided in Hong Kong as it would promote early settlement and has potential savings for that large part of the budget for the Legal Aid Department which is spent on family disputes.1259 The Legal Aid Department should draw up guidelines for their staff, both professional and otherwise, for improving the referral of clients to mediation services. This would also include encouraging the private solicitors on the Department’s panel to refer clients to those services. Indeed, the 1991 Evaluative Research Report on the Marriage Mediation Counselling Project of the Hong Kong Catholic Marriage Advisory Council (HKCMAC) reported that 56% of the private solicitors briefed by the department who were interviewed supported a mediation service for cases involving children.
12.128We recommend that there should be statutory provision for legal aid to be made available for mediation of guardianship, custody and access
1256 Section 11(7) of the Children (Scotland) Act 1995.
1257 See Annex 1 infra.
1258 See chapter 8 supra.
1259 41.2% of the civil legal aid certificates granted in 1997 were for matrimonial cases. Out of a budget of HK$245 million for civil cases, 31% went on matrimonial cases.