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THE LAW REFORM COMMISSION OF HONG KONG - page 53 / 360

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custody order is now specified as being 18 years.173  Section 12 deals with continuation of payments for the maintenance of children beyond 18 years if they are in training or education or there are special circumstances which justify the making of the order.174  This would include a child who is suffering from a mental or physical disability.

2.116Pegg argued that, in view of section 3(1)(a) of the Guardianship of Minors Ordinance,175 section 6 cannot mean that an adulterous spouse would be prevented from obtaining custody.  It is submitted that this is precisely what the ordinance is intended to achieve.  It is a fault based ordinance.  What is peculiar is that the bar of adultery only applies to the applicant and does not include the respondent.

2.117The court is left in a difficult dilemma in weighing up the respective faults of the parents, though it is hoped that the inclusion of the “best interests” criteria in the legislation will shift the focus more in the direction of the children and away from the fault allegations.  There is no reference to a third party being able to apply or be granted custody.  Nor is there a power given to the court to commit the children to the custody of the Social Welfare Department.

f)  Domestic Violence Ordinance (Cap 189)

2.118Orders of non-molestation against a person can be made to protect a child from further molestation.176  Such an order can exclude the other person from the matrimonial home.177  The definition of child has now been changed to a person under 18 years by section 25 of the Law Reform (Miscellaneous Provisions and Minor Amendments) Ordinance (Ord. No. 80 of 1997).  The Ordinance applies to cohabiting couples, and any child living with the applicant.  The needs of the children can be taken into account in deciding whether or not the injunction of non-molestation or exclusion from the home is justified.178

2.119There is a saving as to the existing jurisdiction of the Court of First Instance and the District Court in section 9.  There is no provision as to the effect of an injunction under the Ordinance on existing orders of custody, guardianship or access.  It would be useful if there were a provision for suspending or varying access orders where a person has been made subject to a non-molestation order (or excluded from the home) for molestation of a child, until there was an application by the person excluded for an order to resume access.  Otherwise, the custodial parent of a child who has, for example, been molested by the other parent, will have to apply for an order to suspend or vary the access order, in addition to the application for the injunction.

173 As inserted by section 11 of the Marriage and Children (Miscellaneous Amendments) Ordinance (Ord. No. 69 of 1997).

174 As inserted by section 17 of the Marriage and Children (Miscellaneous Amendments) Ordinance (Ord. No. 69 of 1997).

175 This provides, inter alia, that in any proceedings before any court, the welfare of the minor shall be the first and paramount consideration.

176 Section 3(1)(b).

177 Section 3(1)(c).

178 Section 3(2).

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