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Separate representative for public law proceedings

6.167Schedule 1, Part 3 of the Official Solicitor Ordinance (Cap 416) provides for the Official Solicitor “if requested by the Juvenile Court, to act for any party involved in proceedings under the Protection of Women and Juveniles Ordinance (Cap 213) relating to the care and protection of a child or juvenile”.  We take the view that the provision in the Official Solicitor Ordinance (Cap 416) for representation in Schedule 1, Part 3, is inadequate.  

6.168We recommend that the criteria for appointing a separate representative for a child in private law proceedings796 should be accepted as the criteria for appointment of a separate representative in care or supervision proceedings.  As a matter of principle, separate or legal representation in care and protection proceedings should be available for children, and it should be at the discretion of the juvenile court judge or magistrate whether it was appropriate in a particular case.

Legal aid

6.169If parents can have legal aid for representation in a custody or access dispute between themselves, there is no logical reason why parents should not be eligible for legal aid for disputes between the parents and the Director of Social Welfare, where the Director is applying for care or supervision orders under the matrimonial ordinances.  A means and merits test should apply, with the merits test being that legal representation should be warranted when it is likely that a child would be removed from residing with the parents under a care or supervision order.  

6.170Applying the principle of equality of treatment, then parents should be entitled to legal representation in the juvenile court where care and protection orders or supervision orders are being applied for.  The Duty Lawyer Service would be the appropriate service for this court as the Legal Aid Department do not provide representation in the magistrate’s court.  Thus, there will be cases where the child is represented by the Official Solicitor and the parents by the Duty Lawyer Service or the Legal Aid Department.

6.171We recommend that parents should be granted legal representation by the Duty Lawyer Service in the juvenile court and by the Legal Aid Department in the Family Court or the Court of First Instance if they fulfil the eligibility requirements where care or supervision orders are applied for, whether under the matrimonial ordinances or the Protection of Children and Juveniles Ordinance (Cap 213).  

6.172We also recommend that there should be legal representation for children and parents in wardship proceedings where the applicant is the Director or other public agency, as the effect of the order is to take away the responsibility of the parents.

Guidelines for duties of separate representatives

796 See supra.

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