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THE LAW REFORM COMMISSION OF HONG KONG - page 100 / 360

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concerning child abuse or neglect should be referred to the local authority for action.  Since the order is intended to provide short-term assistance, the order will have effect for  six months unless the court specifies a shorter period.456  However, there is nothing to stop the court making a further order.

Section 37 directions

3.130Under the previous law, the court could, upon its own motion, make a supervision or care order in exceptional circumstances in private law proceedings.  This ran against the policy under the 1989 Act that the local authority had the primary statutory responsibility for child protection.  The 1989 Act, accordingly, removed that power but gave the court a limited power to trigger the local authority into action.

3.131Under section 37, where in any family proceedings a question arises with respect to the welfare of any child, and:

“it appears to the court that it may be appropriate for a care or supervision order to be made with respect to him, the court may direct the appropriate authority to undertake an investigation of the child’s circumstances”.

The authority must then consider whether they should apply for a care or supervision order, provide assistance for the child or his family, or take any other action with respect to the child.  They must report to the court within eight weeks.  Where the authority eventually decide not to apply for an order, the court has no power to make a care or supervision order.

3.132Pending the result of the investigation, the court may make an interim supervision or care order.457  This avoids the disadvantage of delay while ensuring that a full order is not made without the authority knowing what the problem is and what will be expected under the order.458

Separate representation

Guardians ad litem

3.133Whereas child representation in public law cases is the rule rather than the exception, it is the exception rather than the rule in private law cases.  The court is ad litem to represent the child only in specified proceedings “unless satisfied that it is not necessary to do so in order to safeguard his interests”.459  Specified proceedings are proceedings which involve public intervention and include the following:

456 Section 16(5).

457 Section 38(1)and (2).

458 Law Com No 172, paragraph 5.16.

459 Section 41(1).  See also rule 9(5) of the Family Proceedings Rules 1991.

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