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THE LAW REFORM COMMISSION OF HONG KONG - page 333 / 360

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Children not required to express views

15.52We recommend that children should not be required to express their views.  To do so would place children under pressure by one or both parents to take sides in a dispute concerning the children’s best interests.  However, we do not see the need for statutory provision to that effect on the lines of the Australian section 68H. (Paragraph 6.117)

Age of maturity for the purpose of obtaining views

15.53We recommend that there should be no age limit for determining maturity and the court should have unfettered discretion in deciding whether to hear a child’s views, irrespective of his age.  We do not think that section 11(10) of the Children (Scotland) Act 1995 would be suitable for local conditions as a presumption of maturity above the age of 12 may be too inflexible in particular cases. (Paragraph 6.118)

Representation of the child

Anomalies

15.54We recommend that the anomalies in rule 72 and rule 108 of the Matrimonial Causes Rules (Cap 179) as to the appointment of a separate representative or guardian ad litem be addressed. (Paragraph 6.126)

15.55For the removal of doubt it should be made clear that a separate representative can be appointed in any dispute on the parental responsibility or guardianship of a child.  (Paragraph 6.128)

Guardian ad litem

15.56We suggest that it would be more appropriate if a person conferred with the role of guardian ad litem was a professional person with experience in children’s issues rather than any individual who is a “proper” or “fit” person.  (Paragraph 6.129)

15.57We recommend that rule 108 of the Matrimonial Causes Rules (Cap 179) be repealed and that a provision on the lines of section 68L(3) of the Family Law Act 1995 as amended be enacted.1381  We also recommend that the restrictions on who can make application for an order, contained in section 10 of the Children Act 1989, should also apply to this provision. (Paragraph 6.133)

1381 See text in chapter 6.133.

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