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THE LAW REFORM COMMISSION OF HONG KONG - page 87 / 360

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3.75The Lord Chancellor may make regulations specifying matters which, unless the court orders otherwise, must be dealt with in the report.365  This is aimed at maintaining consistency in practice.  A report may be made in writing or orally as the court requires.366  This provision is intended to maintain flexibility.  Statements in a report may not be ruled inadmissible because of the rule against hearsay.367

Evidence by children

3.76The court may hear the unsworn evidence of a child if the child understands that it is his duty to speak the truth and has sufficient understanding to justify his evidence being heard.368  In civil proceedings before the High Court or a county court and family proceedings in a magistrates’ court, evidence given in connection with the upbringing, maintenance or welfare of a child shall be admissible notwithstanding any rule of law relating to hearsay.369

Parental agreements and the non-intervention principle

3.77A court must not make an order under the Children Act 1989 “unless it considers that doing so would be better for the child than making no order at all”.370  In other words, the court will have to be satisfied in every case that it is in the child’s interests that an order be made.  The court may decide not to make an order because the arrangements proposed by the parties are satisfactory.

3.78This principle is in line with the notion of parenthood as a continuing responsibility.  Parents are expected to make arrangements for the upbringing of the child after separation and divorce.  Court orders should be reserved for cases where the parties failed to reach a satisfactory agreement.  This reflects the philosophy of the 1989 Act in respecting the integrity and independence of the family unless the making of an order has a demonstrable benefit to the child.371  Where the parties have reached an agreement, the court will have to be especially convinced that it is for the child’s welfare that an order should be made.

Advantages

3.79The English Law Commission explained the merits of the principle as follows:

365 Section 7(2).

366 Section 7(3).

367 Section 7(4).  Cf section 17 of the Guardianship of Minors Ordinance (Cap 13) in Hong Kong.

368 Section 96(2).

369 Section 96 (3) and (4); Children (Admissibility of Hearsay) Order 1993, SI 1993/ No 621.  In contempt proceedings concerning family proceedings, an applicant seeking to rely on the hearsay evidence of children is required to demonstrate that the proposed evidence shows a substantial connection with the upbringing, maintenance or welfare of a child:  cf  C v C (Contempt: Evidence) [1993] 1 FLR 220 (CA).

370 Section 1(5).

371 Article 8 of the European Convention on Human Rights provides that every one has the right to respect for his private and family life.

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