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H v. N

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H v. N

Hong Kong Court of First Instance, Special Administrative Region

9 October 2012

CRC Provisions:
General reference

Domestic Provisions:
Guardianship of Minors Ordinance [Cap 13] (“GMO”), Section 3(1)
Legitimacy Ordinance [Cap 184], Section 3

Case Summary:

A married couple with children separated and the mother sought an order to have interim care and custody of the children granted to her, with access for the father subject to the directions of the court.

Issue and resolution:
Care and custody for the children of separated parents. The court granted the mother’s request, issuing the requested interim order and detailing the conditions of the father’s access to the children.

Court reasoning:
The court noted that this was the first hearing on Section 3(1) of the Guardianship of Minors Ordinance since its amendment to its present form. The court also recognised that these changes had been made in order to bring the terminology more in conformity with that used in the Convention on the Rights of the Child. The court further stated that any application of Section 3(1) of the GMO requires a balanced evaluation of the best interests of the child, their views, the views of their parents, and the findings and recommendations of the social welfare report. In the present case, one of the children had indicated that she wished to live with the mother, and the social welfare report had recommended the same. The court was also satisfied that this would be in the best interests of the children. Therefore, the court granted the mother interim care and custody of the children.  

Excerpts citing CRC and other relevant human rights instruments:
[1] Section 3(1) of the Guardianship of Minors Ordinance, Cap 13 (“GMO”) was amended in April 2012. Before then, it required the court, in any proceedings in relation to the custody or upbringing of a minor, to have regard to the welfare of the minor as the first and paramount consideration and in having such regard give due consideration to the wishes of the minor if it is practicable to do so. The terms “welfare” and “wishes” of the minor are now replaced by “the best interests” and “views”.

[2] This is the first hearing on section 3(1) in the High Court since the new amendments came into force. I would like to take this opportunity to restate the general approach to section 3(1) and say a few words on how the best interests of a minor are to be assessed. […]

[21] Having regard to the best interests of the minor as the first and paramount consideration is not simply a matter of putting the minor’s best interests on the top of the list of all items relevant to the issue in question. It involves a careful evaluation of all the relevant circumstances and merits and demerits of the alternative proposals as they seem likely to bear upon the minor’s interests. Lord MacDermott explained the nature of inquiry in J v C [1970] AC 668 in these terms:

“[It connotes] a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare as that term has now to be understood. That is the first consideration because it is of first importance and the paramount consideration because it rules upon or determines the course to be followed.”

CRIN Comments:
CRIN believes that this decision is consistent with the CRC. The best interests of the child must be the primary consideration in all court decisions concerning children. As the primary concern in all matters affecting the child, their best interests must always be determined in the spirit of the Convention on the Rights of the Child as a whole, taking into account their views in line with Article 12 on the Right to be heard.

[2012] 6 HKC 591; [2012] HKCU 2025; HCMP 129/2011

Link to Full Judgment:

This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.