Child as a party
6.141Section 10 of the Guardianship of Minors Ordinance (Cap 13) provides that on application “of either of the parents of a minor (who may apply without next friend)” the court can make a custody or access order. This seems to be the only statutory provision.779 Section 10(8) of the Children Act 1989 in England provides that where the person applying for leave to take a section 8 order is the child concerned, “the court may only grant leave if it is satisfied that he has sufficient understanding to make the proposed application….” The English Family Proceedings Rules 1991 allow a child to participate without a next friend or guardian ad litem on certain conditions. There has been some criticism of this provision as being difficult to operate.780 There may be some problems with the capacity of the child to give instructions. However, a solicitor can refuse to act for a child in those circumstances. In any event, the court would retain discretion to appoint the Official Solicitor instead of allowing the child to act as a party.
6.142We recommend that, in principle, provided the leave of the court was sought, the child should be allowed to become a party to proceedings which concern him and where he has sufficient understanding to instruct solicitor and counsel to represent him. We recommend a provision on the lines of section 10(8)
6.143We were informed that the Official Solicitor asks for an indemnity for costs before he consents to act.781 If the Official Solicitor is not involved, the applicant can apply for legal aid on behalf of the child. For those cases where the person representing the child is not the Official Solicitor, we recommend that the court be given power to order the parties to bear the costs of the separate representative or guardian ad litem.
Part F - Reforms to relevant matrimonial ordinances
Separation and Maintenance Orders Ordinance (Cap 16)
6.144An applicant under the Separation and Maintenance Orders Ordinance (Cap 16) has to establish fault-based grounds before an order for maintenance, separation or custody is made. The Ordinance also deals inadequately with the children.782 We understand from practitioners that this ordinance is rarely used, though it can be used to obtain a separation by those women who are a party to a customary marriage or a union of concubinage, who cannot apply for a divorce or decree of judicial separation under the Matrimonial Causes Ordinance (Cap 179).783 A recent text states that the most common applications are by wives seeking
779 Order 90 rule 6 of the Rules of the High Court refers to the situation where the minor is not the plaintiff in proceedings under the Guardianship of Minors Ordinance.
780 See chapter 3 supra.
781 Section 6 of the ordinance gives him that power.
782See chapter 2 supra.
783 The definition in section 2 includes these categories of relationships.