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THE LAW REFORM COMMISSION OF HONG KONG - page 324 / 360

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Chapter 15

Summary of Recommendations

15.1This chapter summarises the recommendations on the substantive law dealt with in chapter 6, the recommendations on non-adversarial dispute resolution processes in chapter 12 and the recommendations on child abduction law in Chapter 14.

Part A - General principles

Welfare principle

15.2For the removal of doubt, we recommend that it should be made clear that the welfare principle guides all proceedings concerning children, including questions of guardianship, maintenance or property.  (Paragraph 6.7)  

Best interests

15.3The sub-committee recommends that the term “best interests” is more appropriate for modern conditions in Hong Kong than the term “welfare”.  It is also more in compliance with our international obligations under the United Nations Convention on the Rights of the Child.  Section 3(1)(a)(i) of the Guardianship of Minors Ordinance (Cap 13) should be amended to read “shall regard the best interests of the minor as the paramount consideration….”  Consequential amendments should be made to the other matrimonial ordinances.  (Paragraph 6.8)  

Statutory checklist of factors

15.4We recommend a statutory checklist of factors to assist the judge in exercising his discretion in determining custody or guardianship proceedings. (Paragraph 6.12)

15.5The sub-committee recommends the adoption of the checklist set out in section 1(3) of the English Children Act 1989, which is shorter and more precise than section 68F(2) of the Australian Family Law Act 1975.  The sub-committee also recommends that section 68F(b) (in part), and (f) (in part) of the Australian Act be incorporated into a composite section based on section 1(3) of the English Children Act 1989.  The draft is at Annex 1 of the Consultation Paper.  (Paragraph 6.13)   

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