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guardian cannot appoint a guardian for the child.  Liability to maintain can only be ordered against a parent under section 10 or section 11.  The child who is the subject of a guardianship order can then be regarded as a child of the family for the purposes of an order for maintenance when the guardian’s marriage breaks up, but not otherwise.114  The English Law Commission concluded that there was uncertainty as to a parent’s position in relation to the property of the child, and it may be that a guardian has more powers than a parent.  The English Law Commission115 and the Scottish Law Commission116 dealt extensively with the rights and duties of a guardian of the estate.  This matter is dealt with in more detail in Chapters 3 and 4 respectively.

Proceedings concerning a minor

2.57A guardian of the person or testamentary guardian can be appointed as next friend to take or defend proceedings on behalf of the minor.117  Order 80 of the Rules of the High Court deals with the appointment of a next friend or guardian ad litem to represent the interests of the child.  The Order refers to a “person under disability”, which is defined in Order 80 rule 1 to be “a person who is a minor or a patient”.  The court must approve the settlement of any proceedings in which there is a claim of money.  The court gives directions under rule 12 to control the monies recovered for the minor.  Usually the money is invested by the court until the minor reaches majority.  Payment out of any of the monies may be applied for by the next friend and the court will give directions on this matter under rule 12(3).

2.58There is no definition of “next friend” but “the court generally expects a next friend to be a substantial person; and, as in the case of a guardian ad litem, it is desirable that he be a relation, connection, or friend of the family and not a mere volunteer”.118  The Official Solicitor can also be appointed119 especially if no other person is willing to act.120

2.59The guardian ad litem or next friend can be removed if he is acting adversely to the interests of the infant, or if he conducts the infant’s affairs improperly.121  The White Book also warns of the potential conflict of interest after the settlement has been lodged in court where parents or guardians think it is a windfall for the whole family.  However, the Court can make an order to appoint the Official Solicitor if there is such a conflict.122

Difference between wardship and guardianship

2.60A court has no power to remove rights as a guardian while a parent is alive, even though the impact of a custody order between two parents is sometimes

114 Paragraph 2.29 of the Law Commission’s Working Paper Family Law, Review of Child Law; Guardianship.  (1985: No 91).

115 Ibid.

116 Report on Family Law, Scot Law Com, (1992: No 135).

117 Harris v Lightfoot (1862) 10 WR 31, referred to in the White Book, at 80/3/1 (1991 ed).

118 Ibid at 80/3/1 referring to Nalder v Hawkins (1833) 2 M & K 243.

119 Re W [1907] 2 Ch 557, 568 CA.

120 Supreme Court Practice at 80/6/4/.  See infra for powers of the Hong Kong Official Solicitor.

121 Ibid at 80/3/2/.

122 Ibid at 80/12/9/.

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