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THE LAW REFORM COMMISSION OF HONG KONG - page 336 / 360

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Assessment

15.70We 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. (Paragraph 6.160)

Grounds

15.71Applying 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).1384  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. (Paragraph 6.161)

Child’s views

15.72We recommend that the views of a child should be taken into account in proceedings under the Protection of Children and Juveniles Ordinance (Cap 213). (Paragraph 6.163)

Third parties

15.73We recommend that section 34 of the Protection of Children and Juveniles Ordinance (Cap 213) should be amended to allow an application for a care and protection order or supervision order to be made by third parties.  The same criteria for applications by third parties, already adopted for private law proceedings, should be adopted for such public law proceedings. (Paragraph 6.164)

Ex parte applications by Director

15.74We recommend that Rule 93 of the Matrimonial Causes Rules (Cap 179), and rule 61D of the District Court Civil Procedure (General) Rules (Cap 336), be amended to allow for an ex parte application in case of emergency, but an inter partes hearing should proceed if the application was opposed. (Paragraph 6.166)

Separate representative for public law proceedings

15.75We take the view that the provision in the Official Solicitor Ordinance (Cap 416) for representation in Schedule 1, Part 3, is inadequate.  We recommend that the criteria for appointing a separate representative for a child in private law proceedings 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

1384 The grounds are set out in chapter 2 supra.

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