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Family law proceedings are a stressful process for the parties involved and often involve matters related to children of the family. Children in Hong Kong are, technically speaking, minors. A minor is a person below the age of 18 who does not possess the “capacity” to initiate or participate in civil proceedings.
However, at the core of all court proceedings involving children are the general principles of ‘paramount interests of the child / the welfare of the child’. Do Courts in Hong Kong consider the views of the child if the child cannot ‘participate’ in the proceedings? The Guardianship of Minors Ordinance does state that courts shall give due consideration to “the views of the minor if having regard to the age and understanding of the minor and to the circumstances of the case it is practicable to do so.” An adolescent in today’s world may have very strong views on parental separation and their views can be adequately reflected through evidence such as social investigation reports that are prepared after a social welfare officer interviews a child. However, a child should have an opportunity to be heard in court either directly or through a representative as well, and this can be achieved by the following means:
Meeting with the Child/Children
A child can be heard in court directly by meeting a Judge. The decision to conduct a meeting with a child is at the sole discretion of a Judge who can determine an application made to him by the child either directly, through his lawyer, through a social welfare officer, through a lawyer representing either parent or if in the opinion of the judge, it appears to be in the interest of a child to meet the Judge.
Separate Representative for the Child/Children
A separate representative can be appointed for the child. The court can appoint either the Official Solicitor or Guardian ad Litem for a child. The Official Solicitor is the child’s solicitor in the proceedings but also as an officer of the court investigates how the child’s interests are best served. A Guardian ad Litem is a proposed separate representative for the child who has “no interest in the proceedings adverse to that of the child and is a proper person to be such guardian”. The Guardian ad Litem will represent the child’s interest and has the benefit of legal representation, meaning he will have a solicitor acting for and on behalf of the child. It should be noted that except for the Official Solicitor, the Guardian ad Litem and the legal representative of the Guardian ad Litem cannot be one and the same person.
Child's Judgement
The appointment of a separate representative is a balancing act between giving a voice to the voiceless, risking familial conflict and increasing the time taken for family proceedings to be resolved.
For very young children, their opinions and feelings may change daily and therefore it is practical to have a separate representative who advocates for their interests throughout family/matrimonial proceedings. For adolescents it might be in the best interest of the child that separate representation should be mandatory as they may have opinions that differ from both parents or from what has been reported in the social welfare report. Although this may lead to increasingly lengthy court proceedings, it will, in my opinion, ensure that the child is adequately heard by the court.
For specific advice about your situation, please contact:
Trainee Solicitor
Tel:+852 2388 3899
email: ssingh@rs-lawyers.com.hk
Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.