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THE LAW REFORM COMMISSION OF HONG KONG - page 178 / 360

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6.120It may be said by some that it is futile to appoint a separate representative or a guardian ad litem as the court already orders a report from a social welfare officer where the parents cannot agree on the best interests of a child.  It may be useful to set out the difference between their duties.  In re S,765 Butler-Sloss L.J., in referring to the functions of a child welfare officer766 and a guardian ad litem (GAL), said:

“The functions are not identical, although they do have many features in common: each has a duty to report to the court; each has a duty to consider the welfare or interests of the child; each may be cross-examined on any report which they give.  However, a child welfare officer is not a party to the proceedings whereas a GAL is....  Nevertheless, each has a similar duty to the court, which is to advise the court as to what is best for the child independently of the other parties to the proceedings, and each of them is independent of all the other parties to the proceedings.  The reports of both should be given the same consideration by the court”.

6.121Of course it may not be necessary for the child to be separately represented by a lawyer.  In England, in public law cases, where it is mandatory to appoint a guardian ad litem, he is not obliged to use a lawyer but can do so.  It may be that a social worker may be able to handle the dispute, depending on the context, without a lawyer.  However, in other situations the guardian ad litem may need legal representation.  Our legislation and rules refer to acting as guardian ad litem as well as separate representation.  

6.122Section 64 of the English Family Law Act 1996 provided that a separate representative can be appointed in any family proceedings, including an application for a non-molestation order.  Regulations yet to be made may specify the circumstances of the appointment.767  This was different to the Children Act 1989 which had limited the use of a guardian ad litem to public law proceedings.  It is also interesting that the term “separate representative”, which is not defined, is used rather than guardian ad litem.  

Rule 108

6.123Under rule 108 of the Matrimonial Causes Rules (Cap 179) the court has a broad discretion to order that a child ought to be separately represented in any matrimonial proceedings.  It can appoint the Official Solicitor, if he consents, or, “on the application of any other proper person, appoint that person, to be guardian ad litem with authority to take part in the proceedings on the child’s behalf”.768  

6.124Rule 108(2) provides that a solicitor must certify that the proposed applicant “has no interest in the proceedings adverse to that of the child and that he is

765 In re S [1992] 2 F.C.R. 554.

766This is equivalent to our social welfare officer.

767 At the third reading, when the provision was being moved, the government representative said that these circumstances may be where the interests of a child may be in conflict with those of either or both parents and that such a conflict presents a potential risk to the child’s welfare.  Hansard, H.C. vol. 279, col. 579-580, 17 June 1996.

768 Rule 108(1)(b).

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