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THE LAW REFORM COMMISSION OF HONG KONG - page 180 / 360

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apply for orders concerning children.769  Such non-parents would not be regarded as guardians ad litem.

Hartmann Working Group

6.130Proposals for change to rule 72 of the Matrimonial Causes Rules (Cap 179) were made to the Working Group To Review Practices and Procedures Relating To Matrimonial Proceedings (Hartmann Working Group).  The members were of the opinion that the rule already provided flexibility to appoint persons other than the Official Solicitor.  There were less than 10 cases where the Official Solicitor was appointed to provide separate representation in 1995.  The judges could not recall appointing someone other than the Official Solicitor as guardian ad litem.  It was argued that there was therefore no need to change the rule.770  

6.131We note the views of the Hartmann Working Group.  However, there was a consensus among members of the sub-committee that Rule 108 of the Matrimonial Causes Rules was too narrow.  We noted the differences between rule 108 and the Chief Justice’s Separate Representation of Infants-Practice Direction”:771

“Where it is felt by a Court to be desirable or necessary that an infant shall be separately represented in any proceedings, the Director of Legal Aid, in the exercise of his powers as Official Solicitor, shall, unless the Court otherwise directs, be appointed as guardian ad litem where no other person is available for appointment.”

6.132Section 68L(3) of the Australian Family Law Act 1995 makes provision for a court to order separate representation in proceedings in which a child's best interests are the paramount, or a relevant, consideration:

“(a) on its own initiative; or

(b)on the application of:

(i)the child; or

(ii)an organisation concerned with the welfare of children; or

(iii)any other person”.

6.133We are attracted to the simplicity of section 68L(3), and the fact that it is incorporated into primary legislation reflects the importance of ensuring separate representation for children. We recommend that rule 108 of the Matrimonial Causes Rules be repealed and that a provision on the lines of section 68L(3) of the Family Law Act 1995 as amended be enacted.  We also recommend that the restrictions on who can make application for an order, contained in section 10 of the Children Act 1989, should also apply to this provision.

Criteria for appointment of a  separate representative

769 See supra.

770 At 13.2.

771 Reported in Hong Kong Law Digest, October 1993, at J89.

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