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Proceedings in other courts

2.83Under rule 96 of the Matrimonial Causes Rules, an applicant for custody must at the time when the application is made file a statement of the nature of any other proceedings concerning the same child in the Court of First Instance, District court or magistrate’s court.  Therefore he has an obligation to inform the court of previous proceedings concerning the child.  However, no provision is made for consolidation of proceedings.

Separate representation

Rule 108

2.84The court has a broad discretion to order that a child ought to be  separately represented.  It can appoint the Official Solicitor if he consents or, “on the application of any other proper person, appoint that person, to be guardian ad litem with authority to take part in the proceedings on the child’s behalf”.147  The Official Solicitor’s duty is similar to his duties in wardship.148

2.85A Practice Direction issued by the Chief Justice on separate representation  provides as follows:

Where it is felt by a Court to be desirable or necessary that an infant shall be separately represented in any proceedings, the Director of Legal Aid, in the exercise of his powers as Official Solicitor, shall, unless the Court otherwise directs, be appointed as guardian ad litem where no other person is available for appointment.”149

2.86 In an unusual case, Yeung Chung Ping v Yeung Wan Yuet Kuen,150 the husband disputed the paternity of the child of the marriage.  He applied for an order that blood tests should be carried out on the parties and the child.  On appeal, the Court of Appeal ordered the blood test.  “There was no reason within the scope of the protective jurisdiction of the court over infants which would justify any departure from the general practice of ordering blood tests in circumstances where the paternity of a child was in issue”.151

2.87It was apparent from affidavits that this was a long standing issue.152  The court refused to appoint the Crown Solicitor as guardian ad litem since there were no grounds on which he could reasonably argue that the blood test should not be carried out.  However, the court said that under rule 108 the Crown Solicitor should be asked if he was prepared to act for the child in whatever proceedings might  

147 Rule 108(b).

148 Official Solicitor’s Report - from August 1993 to July 1994, at paragraph 22.

149 Reported in Hong Kong Law Digest,  October 1993, at J89.

150 [1987] 1 HKC 206.

151 At page 206.

152 In reliance on S (an infant by her guardian ad litem, the Official Solicitor to the Supreme Court) [1972] AC 24, 45.  Lord Reid said the order would only be refused if it was against the child’s interests.

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