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THE LAW REFORM COMMISSION OF HONG KONG - page 101 / 360

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(a)applications for the making of a care or supervision order,

(b)where the court has given a direction under section 37 for the local authority to investigate the child’s circumstances and the court has made, or is considering whether to make, an interim care order,

(c)where the court is considering whether to make a residence order with respect to a child who is the subject of a care order, and

(d)applications in respect of contact between a child in care and any person.

3.134The guardian ad litem is under a duty to safeguard the interests of the child in accordance with the rules of court.460  He is required to appoint a solicitor to act for the child unless one has already been appointed.461  Instructions to the solicitor should be given by the guardian.  The guardian must file a report advising on the interests of the child at the end of his investigation.  

Family Law Act 1996

3.135Section 64 of the Family Law Act 1996 gives power to the Lord Chancellor to make regulations for separate representation in proceedings under Part II and IV of the Act462 or the Domestic Proceedings and Magistrates’ Courts Act 1978.  The regulations may provide for representation in certain specified circumstances.

Appointment of a solicitor

3.136If no guardian ad litem is appointed in proceedings under the 1989 Act463 the court may appoint a solicitor to represent the child.464  However, where a guardian ad litem has been appointed but the child wishes and is able to give instructions on his own behalf465 and the instructions conflict with those of the guardian, a solicitor who has been appointed must take instructions from the child.466  The child must have sufficient understanding to instruct a solicitor and wish to instruct one.467  

460 Section 41(2)(b).  The guardian ad litem is required to advise on the wishes of the child, whether the child is of sufficient understanding for any purpose, the options available to the court in respect of the child and any other matter on which the court seeks his advice: rule 4.11(4) of the Family Proceedings Rules 1991, (SI 1991/1247).

461 Ibid, rule 4.11(2).

462 Part II deals with divorce and separation, Part IV with family homes and domestic violence cases.

463 Rule 4.12 op cit and rule 12 of the Family Proceedings Courts (Children Act 1989) Rules 1991, (S1 1991/1395).

464 Section 41(3) and (4).

465 There is no rule as to how old a child must be before he can be considered able to give instructions.  Bromley and Lowe suggested that as a rule of thumb, a child aged 10 or above might be expected to be capable: Bromley & Lowe, Bromley's Family Law (1992), 520.

466 Op cit, rule 4.12(1).

467 Section 41(4)(b).

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