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THE LAW REFORM COMMISSION OF HONG KONG - page 48 / 360

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2.93However, in Chow Hui Shui-yee v Chow Sung-ming,154 the Crown Solicitor, who formerly had the powers now held by the Official Solicitor, refused to act as guardian ad litem on the basis that no interests of the respondent were prejudiced.  However, the court requested the Crown Solicitor to act for the respondent and appointed him guardian pursuant to rule 105(5).  The court had a residual jurisdiction to request the Crown Solicitor (as an officer of the court) to intervene or act on behalf of a party to prevent either a denial or miscarriage of justice, and the Crown Solicitor was in duty bound to obey the court’s request.  The respondent in this case was incapable of protecting his own interests due to ill health.

2.94It seems strange that the Official Solicitor has no discretion to refuse to be appointed under rule 72 in respect of financial matters, but has that discretion in relation to matters affecting the welfare of the child.  The court has no power to appoint legal representation for children except in ancillary relief matters.

d)  Matrimonial Proceedings and Property Ordinance (Cap 192)

Arrangements for the children

2.95Only sections 18 and 19 of Part II of the Matrimonial Proceedings and Property Ordinance (Cap 192) are relevant to guardianship and custody.  Section 18(1)inter alia:

“(b)that ... (i) arrangements for the welfare of every child so named have been made and are satisfactory or are the best that can be devised in the circumstances: or

(ii) it is impracticable for the ... parties appearing before the court to make any such arrangements; or

(c) that there are circumstances making it desirable that the decree should be made absolute or should be made ... without delay notwithstanding that there are or may be children of the family to whom this section applies and that the court is unable to make a declaration in accordance with paragraph (b)”.

2.96In relation to the circumstances outlined in (c), subsection (2) provides that the court must first obtain an undertaking from either or both of the parties to bring the question of the arrangements of the children before the court within a specified time.  The consequences of making an absolute decree without making an order expressing satisfaction with the arrangements of the children is that the decree is void.155

Age

154 District court , DJ No 1178 of 1984, Deputy Judge van der Eb; April 29, 1985, reported in 16 HKLJ (1986) No 2, at 280.

155 Section 18 (3).  However, the validity of the decree cannot be challenged on the grounds that the conditions of subsection (1) and (2) were not satisfied.

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