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THE LAW REFORM COMMISSION OF HONG KONG - page 49 / 360

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2.97Section 18(5) defines the children of the family to whom the section applies as minor children who are below the age of 16 years, or receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not they are also in gainful employment.

2.98Section 19(1), as amended by section 28 of the Marriage and Children (Miscellaneous Amendments) Ordinance, (Ord. No. 69 of 1997), gives power to the court to make orders as to custody and education for children under the age of 18 years, in proceedings for divorce, nullity, and judicial separation.

Child of the family

2.99The court’s powers extend to any “child of the family”.  Section 18(5) provides that the court may direct that the section shall apply to any child of the family if the court is of the opinion that there are special circumstances which make such a direction desirable in the interests of the child.  “Child of the family” is defined in section 2 as a child of both parties to a marriage, or a child who “has been treated by both those parties as a child of their family”.  Section 19(2) of the Matrimonial Proceedings and Property Ordinance (Cap 192) provides that the rights over a child of any person other than a party to the marriage cannot be affected by an order for custody or education, unless that person was a party to the proceedings.156

Court discretion

2.100The scope of the discretion given to the court is to make “such order as it thinks fit” for the custody and education of any child of the family.157  Even where proceedings for divorce, nullity, or judicial separation are dismissed, then or at a reasonable time thereafter, the court retains power to make custody or education orders.158  The court also has power to direct that appropriate proceedings be taken to make a child a ward of court.159  The inherent flexibility of orders concerning children for their best interests is preserved by section 19(5), which allows orders to be made from time to time, and the power of discharge, suspension or variation contained in subsection (6).

Separating siblings

2.101The court’s discretion extends to making a split order.  In W v W,160 custody of a daughter of nine years, who had been brought up by the maternal grandmother, was given to the mother, and the father was granted custody of his son of five years.  The father’s brother’s wife had the day to day management of the son, as the father had lived with his brother and the brother’s wife since the separation.  The court reluctantly allowed the status quo to remain, provided each parent had access to the other child and the court encouraged the children to come together at weekends.  “Even where the court was faced with a de facto split, it would always

156 Section 19(2). This would cover the natural father of a child born out of wedlock.  Presumably he would be joined as a party to the proceedings in order to process the ancillary proceedings concerning the custody, access, education or training of the child.

157 Section 19(1).

158 Section 19(1)(b).

159 Idem.

160 [1981] HKC 466.

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