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THE LAW REFORM COMMISSION OF HONG KONG - page 89 / 360

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automatic suspension of the decree absolute.

3.84  The procedure under  the 1989 Act is that the District Judge will examine the statement of arrangements for children and any written representations filed by the respondent.  If the judge is satisfied that the court need not exercise its powers under the 1989 Act, he should certify accordingly.  If he is not so satisfied, then he can direct that (a) further evidence be filed, (b) a welfare report be ordered or (c) both parties, or either of them, attend before him.  In case the parent refuses to comply with the direction, the judge might delay the decree absolute.  The scrutiny process is therefore very much a “paper exercise” conducted by the judge once he has given his certificate that the petitioner is entitled to a decree nisi.378

Criticisms of the new provision

3.85Freeman worried that the interests of the children would be overlooked:

“Provided the statement of proposed arrangements is not outrageous, whatever the parents have agreed will be rubber-stamped.  Will the much-vaunted ‘wishes and feelings of the child’379 get a look in?  The child will not be independently represented....  The opportunity to strengthen section 41 and convert the high-sounding language of section 1 from rhetoric to reality has been missed.”380

Family Law Act 1996

3.86The Family Law Act 1996 reformed the provisions on the arrangements for children.381  The function of the court under section 41 of the Matrimonial Causes Act 1973 has been retained, though the list of factors which a court should take into account in deciding whether it should exercise its powers under the 1989 Act are extended.382  They now include a requirement to have regard to the wishes and feelings of the child in the light of his age and understanding and the circumstances in which those wishes were expressed.  The conduct of the parents towards the upbringing of the child becomes relevant.  The court must also have regard to any risk to the child attributable to the location of future living arrangements, any person living with the parent,383 or any other arrangements for his care and upbringing.  

3.87A new principle is introduced that, in the absence of evidence to the contrary:

“the welfare of the child will be best served by:

378 Family Proceedings Rules 1991, rule 2.39.

379 See section 1(3)(a).

380 Freeman, op cit at 210.

381 Section 11.

382 The welfare of the child is paramount in the court exercising its discretion.

383 This may be, for example, if a boyfriend of a mother who has a residence order in her favour, had been convicted of sexual abuse of other children.

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