Views of the Hong Kong Bar Association
on the Report on the HKSAR
under the Convention on the Rights of Child
Section IGeneral Measures of Implementation (Articles 4, 42 and 44)
1.There is a need for a comprehensive body of legislation dealing with children which will locate and remove, if appropriate, any discrepancies in the description of the child and/or provide for the implementation of the Convention uniformly.
- Child policy should be formulated and adopted by the HKSAR. The Child Policy should be applied consistently in the HKSAR.
- There is a need for a centralised mechanism or Child Commission to which problems encountered in the implementation of the Convention can be referred. These should not be allowed to accumulate until the eve of reporting to the UN and/or be resolved in a haphazard and piecemeal fashion.
Section IIDefinition of the ‘child’ (Article 1)
Definition of ‘child’ in laws and regulations:
- The Juvenile Offenders Ordinance (JOO) Cap 226 should be reviewed in the light of Article 1 defining a child as being under 18.
- By para. 2 of the JOO “child” means a person who is… under the age of 14 years, “young person” means a person who is … 14 years of age or upwards and under the age of 16 years. By section 3A a juvenile court shall have jurisdiction to hear and determine a charge against a child or young person of any offence other than homicide.
- The jurisdiction of the Juvenile Court is therefore limited to a child or young person ie under the age of 16 years.
- Hence the wide powers of the Juvenile Court to use rehabilitative measures is denied to a ‘child’ between the age of 16 and under the age of 18, as defined by the Convention.
- Likewise all the special provisions for bail of children and young persons arrested (para.4); custody of children and young persons not released on bail after arrest (para.5); the separation of children and young persons in police stations, courts etc (para. 6), power to clear the Court while a child or young person is giving evidence (para.20) and restrictions on reporting of proceedings in juvenile courts (para. 20A) apply to a child under the age of 16 and not under the age of 18.
- By para 11 restrictions are imposed on imprisonment of a “child” and “young person”, such restrictions not extending to a “child” between 16 and 18 as defined by the Convention.
- Case law has developed whereby in respect of serious crimes, the youth of a child is not of mitigation value unless the age of the child falls into a category of “extreme youth” which is restricted to children up to the age 15 and not beyond. After the age of 15, the position is that the child’s youth “pales into insignificance” so that he is sentenced effectively as if he were an adult. This restriction was relied upon recently by the prosecution seeking an increase in the sentence imposed in respect of a Defendant who was 17 at the time of the offence. (see Application for Review No. 4 of 2000).
5.The definition of “child” for the purposes of vulnerable witnesses is at variance with the Convention.
5.1The Criminal Procedure Ordinance, Cap. 221 (CPO) provides for special procedures for vulnerable witnesses including the use of CCTV link and video recorded evidence in lieu of evidence in chief.
5.2Such witnesses include a “child”, defined in the case of an offence of sexual abuse, as under 17, or in the case of other offences to which the CPO applies ie other than sexual abuse, as under 14.
5.3These provisions only apply to child witnesses and not to child defendants.
Age of Majority and Legal Minimum Age
6.1The Bar has commented on the legal minimum age of criminal responsibility (see Annex A, Bar position paper on Minimum Age of Criminal Responsibility).
6.2The Bar’s view is that the legal minimum age should be raised from 7 to 12, with the abolition of the rebuttable presumption of incapacity which at present exists in respect of children aged between 7 and 14.
Section IIIGeneral principles (Articles 2, 3, 6 and 12)
Parent and Child Ordinance (Chapter 49):
7.Although the Parent and Child Ordinance (PCO) abolished the distinction between legitimate and illegitimate children, there are remnants of that distinction. (see para. 3 of the Guardianship of Minors Ordinance, Cap. 13 (GMO)) This provides that a father of an illegitimate child shall only have such rights and authority, if any as may have been ordered by the court on an application brought by the father under the relevant sections.
AArt 2: Non-Discrimination
8.Anti-discrimination legislation to protect young workers from prejudice on the ground of youth should be considered.
9.Anti-Racial discrimination legislation should be introduced.
9.1The Bar’s comments on the Elimination of All Forms of Racial Discrimination is attached as Appendix B.
9.2The current discrimination legislation does not prohibit discrimination on the basis of race or sexual orientation. In 1994, before the change in sovereignty, these areas of discrimination had been included in a Bill introduced by the now Chairperson of the Equal Opportunities Commission, Ms Anna Wu. However, they were excluded in the anti-discrimination legislation that was eventually passed. Subsequent Bills introduced by the Hon. Elizabeth Wong and the Hon Christine Loh to re-introduce anti-racial discrimination legislation, the latter after the change in sovereignty, have not been supported by the HKSAR government.
9.3The express exclusion of racial discrimination legislation perpetuates and encourages discrimination against children on the basis of race, colour, language, national or social origin as prohibited in Art 2.
9.4Since the change in sovereignty, the HKSAR has sought to justify its immigration policy in such a way as had the effect of engendering and prolonging prejudice by the man in the street against new immigrant children from China. Prejudice against ethnic minorities and recent migrants has resulted in such children experiencing difficulty finding primary and secondary schools and difficulty assimilating into local society.
9.5The current Equal Opportunities Commission (the EOC) has the infrastructure to support and enforce such legislation, if necessary. The work of the EOC in other areas of anti-discrimination legislation has shown that it is not a disruptive influence on the economy. We believe that the passing of anti-racial discrimination legislation sends out a positive message, enhancing and reinforcing the HKSAR as a multi-racial, multi-cultural, cosmopolitan and international centre. We see no good reason for the HKSAR failing to comply with the CERD, whether or not there is overwhelming support to do so or otherwise.
BArt 3: Best Interests of the Child
Court orders in relation to child protection:
10.Shared Parental Responsibility
10.1The continued emphasis on parental rights as distinct from the child’s entitlement to shared parental responsibility was considered by the Law Reform Commission in the Guardianship and Custody Consultation Paper in December 1998. This Paper recommended that “Custody” and “Access” orders be replaced by orders for “Residence” and “Contact”.
10.2The recommendations have not as yet been put into legislation.
10.3The Bar’s position paper as to the Law Reform Commission’s Consultation Paper on Guardianship and Custody is attached as Appendix C.
11.Representation of the child in family litigation
11.1Representation of the child in proceedings affecting the child would ensure that his/her views are not misrepresented or ignored.
11.2The Law Reform Commission has recommended that representation of children in family litigation be provided.
11.3Separate representation for children in family litigation affecting their welfare eg where their custody, access and maintenance is concerned should be as of right unless dispensed with by the court. The Court should have the power to appoint a representative for the child with provision for the costs that this will incur. See the Bar’s views in Appendix C.
11.4Currently children are not usually represented in proceedings in relation to the breakdown of a marriage and/or custody and maintenance. However, children may be represented by the Official Solicitor.
11.5Until 1st August 1991 the Office of the Official Solicitor was performed by a number of government departments, notably the Crown Solicitor, the Registrar General and the Director of Social Welfare. As there was overlap between their roles, this was a source of confusion as to which officer was the appropriate choice. The Official Solicitor’s function is now carried out solely by the Director of Legal Aid. The representation of the child by the Director of Legal Aid acting as the Official Solicitor is open to a potential conflict of interest in 2 areas:
(a)The conflict experienced by the Director of Legal Aid acting for the child in his capacity as Official Solicitor, when also acting for one or both of the parents and/or other concerned parties; and
(b)The conflict between the person/body deciding upon funding of legal proceedings and the independent legal representation of the child.
11.6We believe that the case load undertaken by the Official Solicitor has increased in recent years. Statistics should be obtained to verify this observation.
11.7We support the appointment of a single independent body to act for children in all fields touching upon their interest, ie a person other than the Director of Legal Aid, with the necessary funding and back up facilities for such representation being provided. This function could be carried out by the Chairman of the Guardianship Board, with extended powers to cover all persons under a disability and persons who have not attained the age of majority. Alternatively, a separate independent office for the Official Solicitor could be created.
12.Representation of Children in Care and Protection Proceedings
12.1Currently under the Protection of Children and Juveniles Ordinance (Cap. 213) (PCJ), a child or juvenile up to the age of 18, deemed in need of care or protection, may be separated from his parents and placed for up to 3 years in residential care, confining that child to an institution.
12.2This power is exercised by the Juvenile Court in addition to its criminal jurisdiction.
12.3The child who faces a Care and Protection Order is not entitled as of right to legal representation. This appears to be at variance with the spirit of Article 37(d).
12.4We agree with the views of the Chairperson of the Guardianship Board (Appendix E) commenting that it is not suitable to have such applications dealt with in a criminal setting where neither the family or the child is legally represented.
12.5The quasi-criminal flavour to these proceedings and the availability of representation should be critically addressed.
C.Art 6.1: The Right to Life, Survival and Development
13.Youth Suicide
13.1The rate of youth suicide in Hong Kong appears to be on the increase.
13.2Statistics on successful and unsuccessful attempts to commit suicide should be produced not only in relation to total numbers but broken down in terms of age group.
13.3Closer vigilance in the school can be established if greater financial provision is made for a school counsellor to be provided in each school (as distinct from being shared by several schools) who can monitor and provide support for children at risk.
14.1The Guardianship Board or other responsible body should be asked to report on the need for protection of mentally incapacitated children and/or children on life support machines, and/or children in a persistent vegetative state (PVS), setting out the number of places in hospital exclusively for such children and the facilities available for them and their families to be treated with dignity.
14.2We envisage that such report would extend to the incidences of abuse and exploitation of such persons and the difficulties, if any, experienced in resolving conflicts as regards medical treatment or refusal of treatment. The report should set out the disability discrimination that has been directed towards such persons.
14.3We agree with the views expressed by the Chairperson of the Guardianship Board, annexed as Appendix E, that incidences of abuse, exploitation, discrimination and conflicts as to medical treatment is likely to exist in respect of children who are mentally incapacitated, in a comma or in a PVS.
14.4As the jurisdiction of Guardianship Board currently does not extend to children, the HKSAR should either extend this to cover children or set up a comparable body to protect such children who are mentally incapacitated, in a coma or in a PVS.
14.5The representation of such children by the Official Solicitor should be critically reviewed. We agree with the views of the Chairperson of the Guardianship Board that the discretion of the Official Solicitor to refuse to represent a mentally incapacitated person should be removed and that the Official Solicitor should be a properly funded office, independent of the Director of Legal Aid.
DArt 12: respect for the views of the child
Section IVCivil Rights and Freedoms (Articles 7, 8, 13, 17, 14, 15, 16 and 37(a))
AArt 7: Name and Nationality
BArt 8: Preservation of Identity
15.1Recently, an autistic child was detained by the Immigration authorities and subsequently released across the border into China. He has since disappeared without trace.
15.2The HKSAR is asked to outline the policy in place to deal with unaccompanied children and children under a disability and to say whether and if so, what, improvements are envisaged.
CArt 13: Freedom of Expression
DArt 17: Access to Appropriate Information
EArt 14: Freedom of Thought, Conscience and Religion
FArt 15: Freedom of Association and of Peaceful Assembly
GArt 16: Protection of Privacy
HArt 37(a): The Right not to be subjected to Torture or other Cruel, Inhuman or Degrading Treatment or Punishment
Section VFamily Environment and Alternative Care (Articles 5, 18(1), 18(2), 9, 10, 27(4), 20, 21, 11, 19, 39 and 25)
AArt 5: Parental Guidance
BArt 18: (paras 1 and 2): Parental Responsibilities
16.The implementation of the Law Reform Commission Consultation Paper on Guardianship and Custody would establish a more appropriate emphasis on parental responsibilities rather than parental rights. (see Appendix C)
CArt 9: Separation from Parents
17.1As great weight is placed by the Court on the recommendations of the social investigating officer, it is important to maintain a sufficient team of well qualified and motivated social workers.
17.2In addition, the protection of the child’s interest in the case of separation from his/her parent(s) should include provision for the child’s views to be heard regardless of the social worker’s recommendation. Family judges who fail or refuse to see the child prior to adjudication could be encouraged by the child’s legal representative to do so in appropriate cases.
DArt 10: Family Unification
18.1In spite of the recommendation of the Committee on the Rights of the Child for urgent action to reduce the waiting period for reunification of families split between Mainland China and Hong Kong and to raise the quota of permits issued for this purpose, the problem of split families remains a serious one.
18.2The Basic Law provides that children born of Hong Kong permanent residents in Mainland China are to be permanent residents of the HKSAR and have the right of abode in Hong Kong. The HKSAR Government put in place in 1997 a certificate of entitlement scheme requiring such children to apply for certificates of entitlement in Mainland China and to obtain Mainland exit approval before they could lawfully come to Hong Kong to enjoy their right of abode and thus be united with their family members. The HKSAR Government also took the view that such children would only qualify as HKSAR permanent residents if one of their parents had qualified as a HKSAR permanent resident at the time of the child¹s birth; and that such children would not include children adopted in Mainland China.
18.3Litigation ensued. In January 1999, the Court of Final Appeal delivered judgments which held that children born of Hong Kong permanent residents in Mainland China did not have to obtain Mainland exit approval before they could lawfully come to Hong Kong to enjoy their right of abode and also that such children may qualify as HKSAR permanent residents whether or not one of their parents had qualified as a HKSAR permanent resident at the time of the child¹s birth. Subsequently, in May 1999, the HKSAR Government released information that the consequences of implementing these judgments would be that about 1.6 million new entrants from Mainland China would be eligible to come to Hong Kong as of right and presumably immediately and supposedly resulting in great strain on the public services and the resources of the region. Later on in the month, the HKSAR Government asked the State Council to propose to the Standing Committee of the National People¹s Congress an interpretation of provisions of the Basic Law
determinative of the above two rulings. On 26 June 1999, the Standing Committee issued an interpretation of those provisions that had the effect of invalidating the above two rulings as legal precedents.
18.4We observe that the assumptions behind and the accuracy of the information released by the HKSAR Government in May 1999 remains a matter of intense controversy. We also observe that the publicity generated by the information released in May 1999 had a negative impact upon the population towards new immigrant children from Mainland China. Prejudice against such children was generated. Professional efforts to assimilate them into the community were undermined.
18.5We further observe that the impact of the interpretation of the Standing Committee of 26 June 1999 is twofold. Firstly, children born of the same parents but at different times are to be treated differently if one or some of them were born before one of their parents qualifying as HKSAR permanent resident. Hence whilst those born after that time qualify as HKSAR permanent resident and may exercise their right of abode in Hong Kong in due course, those born before do not enjoy the right of abode and have a much reduced chance of reunification with his or her younger siblings. Secondly, children of HKSAR permanent residents born in Mainland China are subject to the additional requirement of obtaining Mainland exit approval before they can exercise their right of abode in Hong Kong, whereas those born elsewhere are not subject to this requirement.
18.6Children of HKSAR permanent residents born in Mainland China who are already in Hong Kong having come, otherwise than pursuant to the certificate of entitlement scheme, are liable to removal. Families that expected to be unified following the coming into operation of the Basic Law are liable to be split.
18.7We also note the many cases of a Mainland parent (usually the mother) who has not yet been able to obtain Mainland exit approval to settle in Hong Kong but whose children have obtained such approval and have settled in Hong Kong, being removed from Hong Kong by the HKSAR Government, leaves the children in Hong Kong to be cared by a single working parent. A Mainland mother who was awarded custody of her child by the Hong Kong Family Court following dissolution of marriage was also subject to removal even though the child had by then settled in Hong Kong.