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THE LAW REFORM COMMISSION OF HONG KONG - page 331 / 360

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Supplementary requirements

15.42We recommend the adoption of a similar provision to section 11(7) of the Children Act 1989 which gives power to the court to include directions or conditions when making an order under section 8(1). (Paragraph 6.93)

Right of third party to apply

15.43The limitation in section 10 of the Guardianship of Minors Ordinance (Cap 13) on the right of third parties to apply to court should be removed.  We recommend a provision on the lines of  section 10 of the English Children Act 1989, with the amendment of subsections (5)(b) and (10) to provide that no leave would be required if the child has lived with the applicant for a total of one year out of the previous three years.1377  The one year period need not necessarily be a continuous period, but must not have ended more than three months before the application. (Paragraph 6.97)  

Arrangements for the children

15.44We prefer to retain section 18 of the Matrimonial Proceedings and Property Ordinance (Cap 192) but we recommend that it is amended to include that the court shall have regard to the views of the child and the desirability of a child retaining contact with both parents, as is set out in section 11(4) of the English Family Law Act 1996. (Paragraph 6.100)

15.45Parents should have to prove to the Judge that arrangements for the children are the best that can be arranged.  The Judge should examine the future plans as to the child’s place and country of residence and the proposed contact with both parents, especially if one parent proposes to emigrate from Hong Kong.  We also recommend that for consistency with the other ages adopted in other provisions in matrimonial legislation, section 18(5)(a)(i) of the Matrimonial Proceedings and Property Ordinance (Cap 192) should be amended to refer to the age of eighteen. (Paragraph 6.101)

Family proceedings

15.46A similar provision to section 10(1) of the Children Act 1989, which gives the court a specific power to make section 8 orders in any family proceedings, including wardship, is recommended for inclusion in Hong Kong’s legislation.1378  It would also be useful to have a definition of family proceedings. (Paragraph 6.102)

1377 See Annex 1.

1378 See Annex 1.

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