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THE LAW REFORM COMMISSION OF HONG KONG - page 88 / 360

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“The proportion of contested cases is very small, so that orders are not usually necessary in order to settle disputes.  Where a child has a good relationship with both parents the law should seek to disturb this as little as possible.  There is always a risk that orders allocating custody and access (or even deciding upon residence and contact) will have the effect of polarising parents’ roles and perhaps alienating the child from one or other of them.”372

Disadvantages

3.80However, Cretney and Masson are critical of this principle:

“there must be a degree of tension between [the principle of non-intervention] and the welfare principle....  Where the parents are in agreement the court may take the view that there should be no further enquiry and no order, and thus fail to address issues of the child’s wishes and welfare.”373

3.81The practical impact of refusing to make an order was illustrated in B v B (Grandparent: Residence Order)374 where a grandmother sought a residence order for a child who was residing with her, with the mother’s consent.  The education authorities had been reluctant to accept her authority and had insisted on the mother’s consent; concern was expressed about the necessary consent for emergency medical treatment and the mother had been impulsive which might lead to her seeking to remove the child from the care of the grandmother.  It was therefore better for the child, and would give her some stability, if the residence order was made in favour of the grandmother.

Duty to approve arrangements  

3.82Section 41 of the Matrimonial Causes Act 1973 , as amended by the Children Act 1989,375 provides that in any divorce, nullity or judicial separation proceedings, the court has a duty to consider whether, in the light of the arrangements proposed for the upbringing and welfare of the children, it should exercise any of its powers under the Children Act 1989.376

3.83Where it appears that a court should exercise its powers, but it is not in a position to exercise that power without giving further consideration to the case, and there are exceptional circumstances in the interests of the child that the court should give a direction under that section, the court may direct that the decree absolute of divorce or nullity or a decree of judicial separation cannot be made until the court allows it.  The duty under section 41 applies only to those children under the age of 16, save where the court expressly directs otherwise.377  There is therefore no

372 Law Com No 172, paragraph 3.2.

373 Cretney & Masson, op cit at 563.

374 [1992] Fam Law 490.

375 Schedule 12, paragraph 31.

376 This is similar to our section 18 of the Matrimonial Proceedings and Property Ordinance (Cap 192).

377 Section 41(3) of the Matrimonial Causes Act 1973 as amended.

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