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THE LAW REFORM COMMISSION OF HONG KONG - page 33 / 360

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Applications for custody and access

2.23 Section 10(1) of the Guardianship of Minors Ordinance provides that an application for custody or access may be made by the parent of a minor or the Director of Social Welfare but  access can only be granted to a parent.

2.24In our view section 10(1) seems unduly restrictive in disallowing persons such as a relative, grandparent or foster parent from applying for a custody or access order.  As the law stands they would have to persuade the Director of Social Welfare to take the proceedings and represent them in court and have the Director’s consent that he would not oppose an order of custody in their favour.  We understand from the Social Welfare Department that no court proceedings were initiated under section 10 by  the department  between 1994 and March 1997.

2.25If an order of custody or access is made it is enforceable only if the parents are not residing together.83  If they continue to reside together for three months after the order was made, then the order ceases to have effect.84  An order of custody or access can be discharged, varied, revived after suspension or suspended by a subsequent order.  This type of application is confined to a parent, or guardian, or on the application of any other person having the custody of the minor “before or after the death of either parent”.85

2.26It would be simpler to allow relevant persons to apply in the District Court to be granted custody or access.  Section 10 could be amended to provide that anyone may apply to the court, or that a restricted group of persons who fulfil certain criteria may apply.  Other persons not fulfilling the criteria would have to obtain the leave of the court.  Alternatively, the section could be replaced by a provision along the lines of sections 8 and 10 of the English Children Act 1989.86  

Maintenance

2.27Section 10 of the Guardianship of Minors Ordinance also deals with maintenance and transfer of property for the benefit of the minor.  Section 10(2) only allows a maintenance order to be made when a prior custody order is granted.  It would be preferable if this were not a pre-condition.  

2.28If section 10 is to be retained then it should expressly state that the court has power to give custody to the Director of Social Welfare,87 if that is the intention.  Section 10 is unclear in that, even though the Director can apply, there is no provision expressly stating that an order of custody can be made in his favour.  Section 3 of the Interpretation and General Clauses Ordinance (Cap 1) defines “person” to include any public body and any body of persons, corporate or uncorporate”.  

83 Section 10(3)(a).

84 Section 10(3)(b).

85 Section 10(4).

86 See chapter 3.

87 The insertion of  “Director of Social Welfare” only occurred when section 10 was amended by section 3 of the Guardianship of Minors (Amendment) Ordinance 1986.

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