2.74The parent or guardian is under an obligation to inform the Director if there is a change of address. Yet there is no provision for access by the parent to the child. The assumption behind the legislation may have been that there was no need to specify such a power as the parent could seek access from the Director who would reach voluntary agreement with the parents on this issue. Alternatively, it may have been thought that the parent could apply for access under section 10 of the Guardianship of Minors Ordinance (Cap 13).
2.75Despite the fact that the Director of Social Welfare may grant access, there is still a need to clarify the legislation by allowing parents or guardians or a relevant third party142 to take proceedings for access to children in the care of the Director. This is particularly so where the only ground for removing the child from parental custody is that it is impracticable or undesirable, which is a lesser standard than the present grounds for taking a child into care under the Protection of Children and Juveniles Ordinance (Cap 213).143 Section 34(2) of Cap 213 sets out specific and serious grounds, including assault or sexual abuse.
2.76There is no reason why the grounds for committing a child to the custody of the Director under section 48A of the Matrimonial Causes Ordinance in private law disputes between parents should not be the same grounds specified in section 34(2) of the Protection of Children and Juveniles Ordinance (Cap 213). No specific provision is made for ascertaining the wishes of the child or taking these into account.
c) Matrimonial Causes Rules
Application by third parties
2.77 There is nothing in Part VII of the Matrimonial Causes Ordinance (Cap 179) which provides a right to apply to the court for custody. That right is provided in the Guardianship of Minors Ordinance (Cap 13) and the Matrimonial Proceedings and Property Ordinance (Cap 192). The latter ordinance is silent on the right of any third party to apply for custody. The court can make an order that a parent is unfit to have custody but the ordinance does not say that the consequences of that order can be an order in favour of a third party who is a fit person.144 Only the Guardianship of Minors Ordinance (Cap 13) allows the Director of Social Welfare to apply for custody of a child. It seems that an interested third party cannot apply to be appointed guardian ad litem unless he falls within the criteria under rule 92(3) of the Matrimonial Causes Rules.
2.78Rule 92 provides that an application for custody or education or supervision under section 48 shall be made to a judge. A registrar may deal with applications for an order in terms agreed between the parties concerning custody or access where “the only question for determination is the extent to which access is to
142 Like a grandparent or other relative.
143 See infra.
144 Section 19(3).