X hits on this document

Word document

THE LAW REFORM COMMISSION OF HONG KONG - page 107 / 360

1037 views

0 shares

0 downloads

0 comments

107 / 360

wardship application.497  There is, however, nothing to stop the High Court from exercising its inherent jurisdiction to decide a specific question concerning a child in care.

3.159In addition, the High Court may not exercise its inherent jurisdiction “for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child”.498  

Private proceedings

3.160The 1989 Act does not directly affect the use of wardship by private individuals.  Wardship falls within the definition of “family proceedings” in the Act499 and may still be used to resolve private issues relating to children. The aim of the Act is to incorporate the most valuable features of wardship into the statutory jurisdictions thereby reducing the need to invoke the High Court’s inherent jurisdiction.500  As the courts are given wide powers under section 8 in all family proceedings, there is now less need to rely on wardship.  Thus any interested party who wants to protect a child’s health and welfare may either use wardship or apply for a prohibited steps or specific issue order in family proceedings.501

3.161Dame Margaret Justice Booth suggested that the use of wardship proceedings or the inherent jurisdiction of the High Court should now be regarded as exceptional.  She stated:

“It should be resorted to only when it becomes apparent to the judge that the question ... in relation to a child’s upbringing or property cannot be resolved under the statutory procedures ... or when the child’s person is in a state of jeopardy and he can only be protected by the status of wardship502 or where that status will prove a more effective deterrent than the ordinary sanctions of contempt of court”.503

497 Supreme Court Act 1981, section 41(2A), added by Children Act 1989, schedule 13, paragraph 45(2).  On the other hand, the making of a care order with respect to a ward brings that wardship to an end: section 91(4).

498 Section 100(2)(d).

499 Section 8(3)(a), that is, the inherent jurisdiction of the High Court in relation to child.

500 Law Com No 172, paragraph 4.18-20; Hansard HL Deb, 6 Dec 1988, Vol 502, col 493.

501 For instance, to justify medical treatment on children without parental consent, the medical profession may obtain the court’s authority to act against parents’ wishes either in wardship or by seeking a specific issue order.  A parent who wants to prevent the medical profession from giving treatment to his child may also do so in wardship or by seeking a prohibited steps order.

502 Once an originating summons is issued, the child becomes a ward of court and no “important step” in the child’s life can be taken without the court’s consent.

503 Dame Margaret Justice Booth, op cit  at 19.  

Document info
Document views1037
Page views1037
Page last viewedSat Dec 10 19:04:46 UTC 2016
Pages360
Paragraphs4973
Words145151

Comments