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THE LAW REFORM COMMISSION OF HONG KONG - page 86 / 360

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Disadvantages

3.71Since the list is not exhaustive and the court may consider other relevant circumstances not enumerated in the list, a considerable amount of discretion 358  The checklist does not ascribe weight to the factors enumerated in it.  A judge may therefore attach greater importance to one factor than the others.

3.72The checklist only applies to contested applications to make, vary or discharge an order under section 8.359  It does not apply to guardianship.  If the checklist applied to uncontested cases as well, it would increase the burden of the courts as they would then be obliged to investigate such cases in depth.  This would encourage the courts to intervene unnecessarily in the arrangements proposed for  children.360  The non-intervention principle requires that the courts should not intervene if all parties are in agreement as to what should happen to the child.

Views of the child

3.73The courts are under a duty to have regard to the child’s wishes and feelings when determining any question with respect to the upbringing of a child.361  Gallagher had the following comments to make:

“Where this parent [who has day to day responsibility for the child] has a truly positive attitude towards contact (or at worst an entirely neutral attitude) it is rare to find a child expressing vehement views against contact.  Those parents who do not wish contact to take place are increasingly aware of the significance of s 1(3)(a) of the Act.  Such parents are often heard to say that they do not object ‘in principle’ to contact, but that contact is a distressing event for the child and that that is why the child is against it.”362

Welfare reports

3.74Whenever a court is considering any question with respect to a child under the 1989 Act, it may ask a probation officer or a local authority to report “on such matters relating to the welfare of that child as are required to be dealt with in the report”.363  Although welfare reports serve the crucial function of providing the court with an independent assessment of the facts and finding out the wishes and feelings of the child, there is no presumption in favour of making one.364  The Law Commission did not recommend that the court should be under a duty to order a report in every case because this would cause unnecessary delays in some cases and would strain limited resources.

358 Bainham, Children - The Modern Law (1993) 44.

359 Section 1(4).

360 Law Com No 172, paragraph 3.19.

361 Section 1(3)(a).

362 Gallagher, “Say goodbye to Daddy,” Sol J, 17 Sept 1993, 906-7.

363 Section 7(1).

364 Contrast this with the statutory presumption of representation by a guardian ad litem in public law cases.

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