LEGAL FRAMEWORK

 

International treaties

 

United Nations Convention on the Rights of the Child

Hong Kong has been a signatory to the United Nations Convention on the Rights of the Child (UNCRC) since 1994. This instrument is important because it guarantees the basic and fundamental rights of children. The Convention sets out the rights of children in 54 articles which establish the principles of human rights to children and youth.

To summarise, the rights of children include civil, political, economic, social and cultural rights. All these rights have to be protected to allow every child to grow up in a fulfilled, safe and happy environment. The UNCRC also is seen as a framwork and set of rules for adults and authority to follow in order to provide such environment to children and youth.

There are four articles in the convention that are seen as special. They’re known as the “General Principles” and they help to interpret all the other articles and play a fundamental role in realising all the rights in the Convention for all children. They are:

  1. Non-discrimination (article 2)​​

  2. Best interest of the child (article 3)

  3. Right to life survival and development (article 6)

  4. Right to be heard (article 12)

To read the UNCRC, please click here.

 

Domestic legislation

Adoption Ordinance (Cap 290) 

This Ordinance is to give effect in Hong Kong to the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption and to provide for incidental and connected matters. The principle of “best interests of the child” (Article 3 of UNCRC) of the infant or child is mentioned for the application of adoption, revocation or termination of care order, yet there is no clear guideline as to how this should be done. 

 

To read the Adoption Ordinance, please click here

Child Abduction and Custody Ordinance (Cap 512) 

This Ordinance gives effect to Hong Kong to the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980; to combat child abduction; and to provide for related matters. 

To read the Child Abduction and Custody Ordinance, please click here

Crimes Ordinance (Cap 200) 

Under the Crimes Ordinance (Cap 200), there are certain offences that aim to protect underage children, particularly girls who are under 16 years of age. For example, under section 122, it is an offence if one indecently assaults another and it is no defence if the person under 16 years of age has given any consent for such act in law. According to section 123, a man who has sexual intercourse with a girl who is under 13 years of age is guilty of an offence.  Under section 124, a man is also guilty if he has unlawful sexual intercourse with a girl under the age of 16 years. However, if the man believes that the girl to be his wife that she is 16 years of age or above, although the marriage is invalid, then the man is not guilty. Under section 127, one commits an offence when he or she takes an unmarried girl under 18 years of age against the will of the parent or guardian with the intention that she will have unlawful sexual intercourse with men or any particular man. Under section 146, it is an indecent conduct offence for anyone who commits an act of gross indecency with or towards a child under the age of 16 years, or incites a child under such age to commit such an act. There will be no defences to such charge under this section to prove that the child has given consent to such an act.  

To read the Crimes Ordinance, please click here

Employment of Children Regulations (Cap 57B) 

Made under the Employment Ordinance (Cap 57), the Employment of Children Regulations prohibit the employment of children in industrial undertakings and regulate the employment of children in non-industrial establishments.  

To read the Employment of Children Regulations, please click here. To read a Concise Guide to the Regulations from the Labour Department, please click here

Offences Against the Person Ordinance (Cap 212) 

The Offences Against Person Ordinance (“OAPO”) (Cap 212) includes a number of offences in regards to the unlawful use of force and these consist of assaults, inflicting grievous bodily harm and murder. The Ordinance also specifies the charges for each offence depending on the circumstances as well as the amount of force, intention and the harm done to the victim.  

 

There are certain sections that are specific to offences done to children. For example, section 26 renders the action of a person who exposes a child of under the age of 2 years whereby the life of the child is endangered or the health of the child is possibly permanently injured illegal  (see s 26). Section 27 states that any person over 16 years old who is the custodian of a child under the age of 16 years “wilfully assaults, ill-treats, neglects, abandons or exposes such child or young person or causes or procures such child or young person to be assaulted, ill-treated, neglected, abandoned or exposed in a manner likely to cause such child or young person unnecessary suffering or injury to his health”, such person is guilty of an offence. “Unnecessary suffering or injury” here includes “injury to or loss of sight, or hearing, or limb, or organ of the body, or any mental derangement”. Also, for the purpose of section, if a parent or custodian over 16 years of age fails to provide“adequate food, clothing or lodging for the child or young person, or if, being unable otherwise to provide such food, clothing or lodging, he knowingly and wilfully fails to take steps to procure the same to be provided by some authority, society or institution which undertakes to make such provision for necessitous children or young persons.” This indicates that any custodian above the age of 16 years has a positive duty to provide necessities to any child or young person under such age and if they were not able to do so, they should actively seek help from any authority, society or institution. According to section 42 of the Ordinance, a person who uses either force or fraud to take away anyone, including children with an intention to sell him or her shall be guilty of an offence of forcible taking or detention of persons. Under section 43 of the Ordinance, it is an offence to illegally, by any methods, “leads or takes away, or decoys or entices away, or detains any child under the age of 14 years, with intent to deprive any parent, guardian, or other person having the lawful care or charge of such child of the possession of such child, or with intent to steal any article upon or about the person of such child, to whomsoever such article may belong”.  

 

To read the Offences Against the Person Ordinance, please click here

Protection of Children and Juveniles Ordinance (Cap 213) 

The Protection of Children and Juveniles Ordinance (“PCJO”) (Cap 213) is an important instrument that provides protection for children and juveniles. This Ordinance has the same definitions for ‘child’ and ‘young person’ as recorded in Juvenile Offenders Ordinance (Cap 226). Accordingly, a ‘child’ is someone who is under the age of 14 years while ‘young person’ is someone who is 14 years of age or above and under the age of 16 years (see s 2(1)). A ‘juvenile’ is a person who is 14 years of age or above and under the age of 18 years (see s 2).  

The juvenile court can, by itself or upon the Director of Social Welfare’s application or any authorized person by the Director of Social Welfare in writing, appoint the Director of Social Welfare to be the guardian of a child or juvenile brought before the court if above the age of 7 years or in need of care or protection under the age of 7 years (see s 34(1)(a)). The court can also commit the child to the care of anyone, such as a relative, or any institution, so long as that person or the institution is willing to undertake the care of the child or juvenile (see s 34(1)(b)). Besides, the juvenile court may order the parent or guardian of such child to enter into recognizance to provide appropriate care (see s 34(1)(c)). In connection with any application that is being brought under the above section, the juvenile court can request that the juvenile and child to be brought before the court or provide such directions to the parent or guardian (see s 34(1AA)).  

Also, in accordance to this Ordinance, a child that needs care or protection is a child that “has been or is being assaulted, ill-treated, neglected or sexually abused”, or whose health, development or welfare has been, is being or appears like to be neglected or impaired, or a child who is beyond as to it may cause harm to himself or to others who may be in need of care and protection (see s 34(2)). When a person has the care of the child or juvenile while an order under this provision is in force and if the person “knowingly assists or induces, directly or indirectly, a child or juvenile to escape from the person or institution to those he is so committed; or knowingly harbours, conceals, or prevents from returning to such person or institution, a child or juvenile who has so escaped or knowingly assists in so doing.”(see s 34(4)(a)).  

In the supervision orders, the juvenile court can include requirements for the supervised person to comply during the supervision order and these requirements can be related to residence or medical or surgical attention or treatment (see s 34 A). The court can also at any time cancel any requirement or make variation of orders, or reduce the duration of the order (see s 34C). With the written authorization of the Director of Social Welfare or any police officer of the rank of station sergeant or above can take any child or juvenile to a place of refuge if it is believed that the child or juvenile is in need of care or protection (see s 34E(1)). The child or juvenile can be detained to the place of refuge until the child or juvenile is being brought before the juvenile court (see s 34 E(2)). When the child or juvenile is detained in a place of refuge, the person in charge of the place will have the like control over the child or juvenile (see S 34E(5)). Moreover, when the Director of Social Welfare has reason to believe that the child or juvenile is about to be taken out of Hong Kong or has been brought into Hong Kong by force, threats, intimidation or false pretences etc, then the Director of Social Welfare may make any order to protect the child or juvenile from moral or physical danger (see s 35). 

Additionally, the Secretary for Labour and Welfare can provide for the child and the juvenile a number of things through regulations and these include “the welfare education and control of children and juveniles the legal guardianship of whom is vested in the Director of Social Welfare; the welfare and education of children or juveniles who have become wards of the Director of Social Welfare or have been committed to the care of any person or institution and as to the duties of such persons or institutions with respect to such children or juveniles” (see s 39(1)). The Director of Social Welfare or any officer authorized by the Director has the power to enter and search any vessel, house, building or other place in order to make sure that there is no child or juvenile who is liable to be dealt with under the Ordinance (see s 44(1)). In order for the Director of Social Welfare to have more information, he can from time to time to inquire for any necessary information to allow him to utilize the powers given by this Ordinance, under s 45 of the Ordinance. 

S45A a specific child assessment procedure in which the Director of Social Welfare has reasonable doubt that a child or juvenile is in need of care or protection can produce a notice requiring the custodian to allow a medical practitioner, psychologist or a social worker to assess such child or juvenile in relation to the health and development (see s 45 A). 

To read the Protection of Children and Juveniles Ordinance, please click here

 

HONG KONG CASES

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government policies and Services

The Social Welfare Department of the HKSAR government provides a wide range of services to young people and to family for the purpose of family and child welfare.

 

Services for Young People

 

School Social Work Service

 

This service is implemented according to the policy of “One school social worker for each secondary school” and hence each secondary school should be provided with one full-time stationing social worker to help and identify students with academic, social or emotional needs.

To read more about this, please click here.

 

After School Care Programme

 

This programmes aims to provide supportive services for children from age 6 to 12 whose parents are unable to provide proper care for them during after-school hours due to work or other reasons. The centres providing such programme are operated on a self-financing and fee-charging basis. Under the “Fee-waiving Subsidy Scheme”, full fee-waiving or half fee-reduction subsidies are provided for low income families.

 

To view this service and a list of centre, please click here. To learn more about this programme, please click here.

 

Overnight Outreaching Service for Young Night Drifters

 

Overnight Outreaching Service for Young Night Drifters is provided on a territory-wide basis to reach out to high-risk young night drifters exposed to possible moral danger.

 

To learn more about this, please click here.

 

Hotline Service for Youth-at-Risk

 

Hotline service runs by the Hong Kong Federation of Youth Groups (2777 8899) offers immediate counselling to youth who are at risk facing crisis through telephone contact. Services provided to the callers include telephone guidance and counselling, face-to-face counselling for immediate intervention and referrals to other appropriate service units.

 

District Support Scheme for Children and Youth Development

 

This scheme aims to help children and youth aged 24 or below who are financially deprived or under disadvantaged circumstances in the districts. The resources are distributed as direct cash assistance to subsidise the expenses on individual items for the children and youth to meet their developmental needs. Children and youth who are have particular needs may receive casework services by contacting their social workers to enquire for further details.

 

To learn more about this scheme, please click here.

 

Community Support Service Scheme

 

This scheme aims to help children and youth cautioned under the Police Superintendents' Discretion Scheme with a view to re-integrating them into the mainstream education or work force and reducing the likelihood of re-offending. Services include individual and family counselling, therapeutic groups, skill training or educational groups, adventure activities as well as recreational and community services. For better service synergy, the CSSS teams are each attached to an Integrated Children and Youth Services Centre.

KEY ISSUES

 
 

COMMISSION ON CHILDREN

The HKSAR Government has set up a Commission on Children in mid-2018. This is seen as an important step to protect its children and youth in Hong Kong, yet the Commission, led by Chief Secretary Matthew Cheung Kin-chung, has yet to produce any outcomes or any mandate to date. 

Comparing with children’s commissions in other countries, the Commission on Children in Hong Kong has a long way to go. First, there is no consolidated children’s bill in Hong Kong. Second, as the Commission on Children is led by the Labour and Welfare Bureau, it is not completely independent. Children’s Commissions in countries like Australia, Canada and the United Kingdom, the commissions enjoy real power and are able to hold the government accountable.  

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Concluding Observations on the Convention of the Right of the Child by the Committee

 

PREVENTION ON CHILD ABUSE

Government policies for preventing and handling child abuse cases

 

 

 

 

Concluding Observations on the Convention of the Right of the Child by the Committee

 

In the Concluding Observation Report of 2013 (CRC/C/CHN/CO/3-4),

 

 

 

INCLUSIVITY of ALL CHILDREN IN POLICIES 

One of the core principles of UNCRC, as stated above, is non-discrimination. Article 2 of the UNCRC states that:

  1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

  2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.

 

 

Also, article 23 of the UNCRC states that:

  1. States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community.

  2. States Parties recognize the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child's condition and to the circumstances of the parents or others caring for the child.

  3. Recognizing the special needs of a disabled child, assistance extended in accordance with paragraph 2 of the present article shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child, and shall be designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child's achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development

  4. States Parties shall promote, in the spirit of international cooperation, the exchange of appropriate information in the field of preventive health care and of medical, psychological and functional treatment of disabled children, including dissemination of and access to information concerning methods of rehabilitation, education and vocational services, with the aim of enabling States Parties to improve their capabilities and skills and to widen their experience in these areas. In this regard, particular account shall be taken of the needs of developing countries.

Integrated Education

 

The Education Bureau has a policy of placing students with special education needs in mainstream schools as far as possible. Underpinned by the Operation Guide, the government provides support to mainstream schools to enable integrated education, for example through Learning Support Grants.

 

 

According to the Disability Discrimination Ordinance (Cap. 487) and the Code of Practice on Education issued by the Equal Opportunities Commission, all educational establishments have the obligation to provide equal educational opportunities to eligible students, including students with Special Educational Needs (SEN).

 

Students with SEN refer to students who need special educational support because of learning or adjustment difficulties categorised as: (a) Specific Learning Difficulties; (b) Attention Deficit/Hyperactivity Disorder; (c) Autism Spectrum Disorders; (d) Speech and Language Impairment; (e) Intellectual Disability; (f) Hearing Impairment; (g) Physical Disability; (h) Visual Impairment; and (i) Mental Illness (included as a type of SEN from 2017/18 onwards — unless stated otherwise, all years mentioned hereinafter refer to school years).

 

Concluding Observations on the Convention of the Right of the Child by the Committee

 

In the Concluding Observation Report of 2013 (CRC/C/CHN/CO/3-4), the Committee recommends that Hong Kong SAR intensify measures, including awareness-raising, identification of discriminatory policies and timely implementation of relevant programs, to combat discrimination against children with disabilities, undocumented children of migrant workers, refugee and asylum-seeking children, and to ensure that these children have equal access to basic services, including health, education and other social services.

CHILDREN's VOICES in parental disputes

The issue of children's voices in parental disputes has always been a concern in Hong Kong. In fact, it was one of the main issues being explored at the Third Child's Issues Forum in 2015. The Proposed Legislation: Children Proceedings (Parental Responsibility) Bill has yet to be passed and implemented.

 

On an international law level, this is important because it is correlated to article 12 of UNCRC, which is to respect child's view and to give children the right to express, as well as article 3, which is to consider the best interests of the child.

 

In accordance with the Proposed Children Proceedings (Parental Responsibility) Bill, the Hong Kong Bar Association’s Committee on Family Law (“Committee”) has considered the Children Proceedings (Parental Responsibility) Bill (“Bill”) and has submitted a response. Particularly, they pointed out [insert]. 

 

This project is supported by the HKU Knowledge Exchange Fund granted by the University Grants Committee.