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THE LAW REFORM COMMISSION OF HONG KONG - page 332 / 360

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Change of surname

15.47We recommend that a provision on changing a child’s surname on the lines of section 13(1)(a) of the Children Act 1989 be enacted. (Paragraph 6.103)

Part E - The voice of the child

Views of the child

15.48We recommend that a provision on the views of the child should apply to all proceedings concerning children.  It would also be clearer if each matrimonial ordinance specifically referred to the need to hear the views of the child.  We recommend that the language of the United Nations Convention on the Rights of the Child should be adopted so that the term “views” rather than “wishes” of the child is enacted in matrimonial legislation.1379  (Paragraph 6.110)

How and when child’s views taken into account

15.49Considering our earlier recommendation that a statutory checklist of factors should be established, we recommend that the child’s views should be one element in the checklist of factors rather than a free-standing section.  The child’s views should be balanced with the other factors when the judge is making a decision in the child’s best interests.  We recommend the repeal of section 3(1)(a)(i)(A) of the Guardianship of Minors Ordinance (Cap 13).  (Paragraph 6.113)

How the views of a child are expressed

15.50We recommend that a child should be given the facility to express his views if he wishes, whether directly or indirectly by a report from a social welfare officer, psychiatrist or psychologist. Once he has indicated a desire to express views, then the court must hear his views. (Paragraph 6.115)

15.51We suggest that it would be useful to set out the mechanisms for ascertaining and expressing the child’s views.  We recommend adopting a provision on the lines of the Australian section 68G(2), but adapted to insert “views” rather than “wishes”.1380  With the adoption of this provision, we recommend the repeal of section 3(1)(a)(i)(B) of the Guardianship of Minors Ordinance (Cap 13). (Paragraph 6.116)

1379 We are referring here to the Guardianship of Minors Ordinance, (Cap 13), Matrimonial Causes Ordinance (Cap 179), Matrimonial Proceedings and Property Ordinance (Cap 192), Separation and Maintenance Orders Ordinance (Cap 16), and the Domestic Violence Ordinance (Cap 189).

1380See Annex 1.

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