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THE LAW REFORM COMMISSION OF HONG KONG - page 47 / 360

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continue after the result of the blood tests.153  The child was ordered to be joined as a respondent to the divorce proceedings.

2.88There is an unusual provision in Rule 108(2) that a certificate by a solicitor must be filed certifying that the proposed applicant “has no interest in the proceedings adverse to that of the child and that he is a proper person to be such guardian”.  There is an argument that a relative who is applying for custody could not be seen to be sufficiently neutral or independent to represent the best interests of the child as a guardian ad litem.  In other jurisdictions a guardian ad litem is a professional officer appointed to protect the child.  It is submitted that it would be more appropriate if a person conferred with this role was a professional with experience in children’s issues.  Then a separate right could be given to allow a relative, foster parent or other close friend to apply to be a party to the proceedings, rather than assuming that this person’s interests coincided with the role of separately representing the child.

Rule 72

2.89Rule 72 also allows for separate representation where an application is made to vary a settlement order.  This compels the court to appoint separate representation “unless it is satisfied that the proposed variation does not adversely affect the right or interest of any children”.  No definition of settlement order is made.

2.90 The scope for separate representation is broader under this rule as the child can be represented by a solicitor, or a solicitor and counsel.  The court may appoint the Official Solicitor, or other fit person to be guardian ad litem.  A similar certificate to the certificate in Rule 108(2) has to be filed for the proposed fit person.  The certificate must be filed by the solicitor acting for the child.  The term “proper person” and “fit person” are mentioned in the rule, without definition, or explanation of the difference between them.  It may be that what was intended was that a person alleged that he was a proper person for the purposes of the application and if the court was satisfied of his capability then he became a fit person.

2.91Rule 72(2) is important as it gives a similar power to the court to appoint a separate representative “on any other application for ancillary relief”. “Ancillary  relief” is defined in rule 2 in terms of a range of financial orders, including maintenance orders, orders for settlement or transfer of property and orders for variation of settlement.

2.92The irony is that the children cannot be separately represented by a solicitor or counsel in a custody or guardianship dispute, as it seems rule 72 is confined to property matters, and rule 108 does not deal with the right to be represented by a solicitor or counsel.  Only the Official Solicitor if he consents, or the “proper person”, can separately represent the child.

153 Reference was made to a Practice Direction at [1975] 1 WLR 81 which indicated that it was not necessary to order the Official Solicitor to act as guardian ad litem, unless the minor is ten years or more, or there are special circumstances making such appointment immediately desirable.

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