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THE LAW REFORM COMMISSION OF HONG KONG - page 93 / 360

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specify the times, frequency and location of visits.  The words “otherwise to have contact with each other” indicate that the court may order some other form of contact, including letters or telephone calls.

Specific issue order

3.100The specific issue order “means an order giving directions for the purpose of determining a specific question which has arisen, or may arise, in connection with any aspect of parental responsibility for a child”.404  The object is not to give one parent or the other a “right” to determine a particular point but to enable either parent to apply to the court for a particular dispute to be resolved in accordance with the welfare principle.  Even if a person does not have parental responsibility, say an unmarried father, he can still apply for a specific issue order concerning such issues as major medical treatment and schooling of the child.  The court may order that one of the parties should be free to make the specific decisions.  It may also attach a condition to a residence or contact order that certain decisions may not be taken without informing the other or giving the other an opportunity to object.405

Prohibited steps order

3.101A prohibited steps order “means an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court”.406  The aim of providing for prohibited steps orders is to incorporate the most valuable features of wardship into the statutory jurisdiction.

3.102There are occasions where it is necessary for the court to play a continuing parental role.  When the court makes a child a ward of court, there is the vague requirement that no “important step” may be taken without the leave of the court.  A prohibited steps order is more specific and the court will spell out those matters which will have to be referred back to the court.  The child’s education and medical treatment are matters that could be resolved with such an order.407

3.103A limitation on both specific issue and prohibited steps orders is that they must concern an aspect of parental responsibility.  Neither order should be made with a view to achieving a result which could be achieved by a residence or contact order.408  This is to guard against the slight risk, particularly in uncontested cases, that the orders might be used to achieve the same practical results as residence or contact

404 Idem.

405 The English Law Commission was of the view that to give one parent in advance the right to take a decision which the other parent will have to put into effect is contrary to the whole tenor of the modern law, in particular, the disapproval of the old form of “split” orders giving custody to one and care and control to the other:  Law Com No 172, paragraph 4.18.

406 Section 8(1).

407 Where there is a residence or contact order, the power to impose conditions may avoid the need for a prohibited steps order.

408 Section 9(5).  So, for example, a specific issue order which ordered that children be returned from the father to the mother was contrary to section 9(5) - M v C (Children Orders: Reasons) 14 October 1992, FD, reported at [1993] Fam Law 433.

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