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THE LAW REFORM COMMISSION OF HONG KONG - page 41 / 360

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perceived effectively to remove such rights.  This jurisdiction is different from the wardship jurisdiction.  If a guardian is appointed that does not make the child a ward of court.123  In wardship proceedings, the court becomes the guardian and has responsibility for all matters affecting the upbringing of the child.

Wardship

2.61Section 26 of the High Court Ordinance and Order 90 of the Rules of the High Court governs the wardship jurisdiction.  An order of wardship vests custody:

“in the sense of the whole bundle of parental rights, in the court which usually delegates actual care and control to an individual.  Major decisions affecting the ward, e.g. consent to marriage, adoption proceedings, surgery and education must be taken by the court.  Interference with and disobedience to the court order is a contempt of court”.124

2.62Order 90 Rule 3 provides that where an application to make a child a ward of court is pending, any application made under the Guardianship of Minors Ordinance (Cap 13) may be made in the pending wardship proceedings.  Wardship would also be relevant where a non-parent who has had the physical custody of the child is opposing a request by a parent or parents to return the child.  Foster parents can also apply to make the child a ward of court.  Unless the Official Solicitor takes proceedings or the applicant can obtain the consent of the Director of Social Welfare for him to take proceedings, wardship is the only remedy.  

2.63The costs will most likely be the greatest deterrent, as the Director of Social Welfare may not want to incur the legal expenses of the proceedings.  Another practical difficulty is that if a maternal grandparent is looking after a child and wants to retain custody, as, for instance, where the mother is marrying again, then the grandparent has to persuade the natural mother to issue proceedings under section 10 of the Guardianship of Minors Ordinance (Cap 13) to ask the court to grant custody to the grandparent.

2.64 It is curious that this is the only remedy in the absence of wardship or the Director of Social Welfare’s consent.  The natural mother may be reluctant to take proceedings as a maintenance order could be made against her for the support of the child.  From another perspective a mother may not want to surrender legal control of the child as she may fear that the child will feel abandoned and resent her in later years.

2.65The District Court has no jurisdiction in wardship.  An infant will remain a ward until majority, at the age of 18.

2.66The question arises as to what power a court has when considering the arrangements for a child in a divorce if it feels that neither parent can make proper

123 Section 9(1) of Law Reform (Miscellaneous Provisions) Act 1949.

124 Pegg, Family Law in Hong Kong, (3rd ed, 1994) at 271.

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