6.91The English definition of a prohibited steps order provides that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court. The Scottish provision states:
“an interdict prohibiting the taking of any step of a kind specified in the interdict in the fulfilment of parental responsibilities or the exercise of parental rights relating to a child or in the administration of a child’s property.”740
6.92There is no similar provision in the Australian Family Law Act 1975. The Scottish provision refers to a type of order that is not known in our law, similar to an injunction. Therefore, the most suitable definition for Hong Kong is the English definition. We recommend that a provision on the lines of the definition of prohibited steps orders in section 8(1) of the Children Act 1989 be enacted.
6.93When making a section 8 order, section 11(7) of the Children Act 1989 gives power to the court to include directions or conditions specified therein.741 This would be, for example, to organise supervised contact for the child with the parent where there has been a history of violence or abuse in the family. No similar requirement is provided for in the Children (Scotland) Act 1995. This is a useful power to assist the court in structuring orders to meet the best interests of a child and minimise future disputes. We recommend the adoption of a similar provision to section 11(7) of the Children Act 1989.
Right of third party to apply
6.94It has been noted in Chapter 2 that section 10 of the Guardianship of Minors Ordinance (Cap 13) causes problems for third parties such as grandparents or other carers in applying to the court for orders of custody or access. Such orders may be necessary to protect the child’s best interests for example, where a single parent leaves his or her child to be brought up by the grandparents and subsequently demands the child back. It is also in the child’s best interests to maintain contact with both sets of grandparents, particularly in Hong Kong where the extended family is important.
6.95The third parties have to rely on either a parent or the Director of Social Welfare applying on their behalf for such orders. Alternatively, wardship proceedings can be taken by the carer, or the Official Solicitor may intervene. The Matrimonial Causes Rules (Cap 179) do provide that a guardian or a person who has custody, control or supervision of a child can apply for an order under section 48 of that ordinance.742
740 Section 11(2)(f) of the Children (Scotland) Act 1995.
741 See chapter 3 supra.
742 This is for a supervision order. See infra in relation to an application by an individual to be appointed as the guardian ad litem, with authority to take proceedings on the child’s behalf under rule 108 of the Matrimonial Causes Rules.