2.70 Section 48 provides that where the court has jurisdiction to make a custody order,134 and there appears to be exceptional circumstances making it desirable that the child should be under the supervision of an independent person, “the court may, as respects any period during which the child is, in exercise of that jurisdiction, committed to the custody of any person, order that the child be under the supervision of the Director of Social Welfare.”135 There were 139 supervision orders made in 1994/95 and 152 in 1995/96. The numbers have increased to 244 orders for the period April 1996 to the end of March 1997.
2.71Section 48 is similar to section 13 of the Guardianship of Minors Ordinance (Cap 13). The court’s jurisdiction to vary any such order is exercisable at the instance of the court itself.136 The court is given power to vary or discharge any provision made in pursuance of this section.137 Section 48 has been amended by section 19 of the Marriage and Children (Miscellaneous Amendments) Ordinance (Ord. No. 69 of 1997) to provide for an age limit of 18 years for a supervision order. There is no definition of supervision.138 The question arises whether the granting of a supervision order under this ordinance allows the Director of Social Welfare to invoke his powers under section 34A of the Protection of Children and Juveniles Ordinance (Cap 213).139
2.72Section 48A provides a power to commit the child to the care of the Director of Social Welfare. However, the exceptional circumstances must make it impracticable or undesirable for the child to be entrusted to either of the parties to the marriage or to any other individual. One order was made in 1994/95 and three orders were made in 1995/96. There were six orders for the period April 1996 to the end of March 1997. Before making the order, the court must hear representations from the Director of Social Welfare, including any representations as to financial provisions.140 141 Section 48A(3) provides that the child “shall continue in the care of the Director of Social Welfare notwithstanding any claim by a parent of the child or another person”.
2.73Even though section 48A refers to a child being entrusted “to any other individual” the section does not give power to award custody to a third party. Presumably, it was thought that section 10 of the Guardianship of Minors Ordinance (Cap 13) was sufficient, as it allows the court to make an order in favour of any person. However, we have seen that section 10 denies the third party a right to apply, and he must rely on the parents or the Director to take the application.
134 That is, under this ordinance or the Matrimonial Proceedings and Property Ordinance (Cap 192). Custody is not defined nor is there a reference to access.
135 Amended by No. 39 of 1972, section 33.
136 Subsection (2).
137 Section 48(3).
138 Section 34B of the Protection of Children and Juveniles Ordinance (Cap 213), if applicable, states that the duty of a supervisor is to advise, assist, and befriend the supervised person.
139 This includes requiring the supervised person to comply with requirements as to residence, medical or surgical attention or treatment, giving due consideration to the wishes of the parent or guardian. Nothing is said about the wishes of the child who is being supervised.
140 Section 48A(2).
141 Section 48A(5).