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THE LAW REFORM COMMISSION OF HONG KONG - page 187 / 360

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6.160Under section 45A of the Protection of Children and Juveniles Ordinance (Cap 213)  the Director of Social Welfare has power to order assessment of a child by a doctor, clinical psychologist or social worker, or the court can so order. There is no similar power when an application for a care order under the matrimonial ordinances is being made. We recommend that a District Judge should have the power under the matrimonial ordinances to order that a child should be assessed before making a care order, as is provided in section 45A of the Protection of Children and Juveniles Ordinance (Cap 213).  The Director should also have the power to order assessment in these proceedings in accordance with section 45A.

Grounds

6.161If there are exceptional circumstances making it impracticable or undesirable to entrust the minor to the parents or any other individual, then the court may commit him to the care of the Director of Social Welfare.791  The court can also order supervision in exceptional circumstances for minors.792  Applying the equality of treatment principle, we recommend that the Director should only be entitled to apply for a care order or supervision order in private law proceedings on the same grounds as those in section 34(2) of the Protection of Children and Juveniles Ordinance (Cap 213).793  All these anomalies between the Director’s powers in relation to care and supervision orders under the Guardianship of Minors Ordinance (Cap 13) and the Matrimonial Causes Ordinance (Cap 179), and his powers under the Protection of Children and Juveniles Ordinance (Cap 213) should be resolved.

Protection of Children and Juveniles Ordinance (Cap 213)

6.162As the same children could potentially come before the court in public and private law proceedings, it is important that the discrimination between the children in the different statutory regimes be minimised, unless it can be justified for policy reasons and in the best interests of the child.  Thus, provisions in the matrimonial ordinances that are in the best interests of the child should be extended to proceedings taken under the Protection of Children and Juveniles Ordinance (Cap 213) for care and protection orders or supervision orders.  We have already recommended giving a right to apply for contact under the Protection of Children and Juveniles Ordinance (Cap 213).

Child’s views

6.163There is no provision in the Protection of Children and Juveniles Ordinance for taking account of the views of a child.  We recommend that the views of a child should be taken into account in proceedings under that ordinance.

Third parties

791 Section 13(1)(b) of the Guardianship of Minors Ordinance.  There is a similar provision in section 48 of the Matrimonial Causes Ordinance.

792 Section 13(1)(a) of the Guardianship of Minors Ordinance.  There is a similar provision in section 48A of the Matrimonial Causes Ordinance.

793 The grounds are set out in chapter 2 supra .

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