examine all the relevant circumstances very closely before turning such a situation into a de jure one by its order”.
2.102However, the court went on to hold that:
“within the context of section 18(1)(b)(i) of the Matrimonial Proceedings and Property Ordinance (Cap 192), the court was not satisfied that the arrangements for the welfare of the children were satisfactory but the court was satisfied that such arrangements were the best that can be devised in the circumstances and this was a sufficient declaration for the purposes of the section”.
2.103The original order was for custody of the children to be given to the wife with care and control of the son to the husband. Bokhary J said “since split orders, whereby custody is given to one person while care and control is given to another, are not ordinarily made, ... it can be seen that the extraordinary nature of the present situation has already been judicially recognized”.161
2.104It is interesting that the court is given power under section 19(3) to make an order that either party is unfit to have custody. This order may be included in the decree of divorce or judicial separation. It is surprising that it could not also be made in an application to dismiss an application for custody, or in an order refusing custody. The significance of such an order is that on the death of the custodial parent, the other parent is not entitled as of right to custody or the guardianship of that child.162 However, section 19(1) does give power to the court, where it could make a custody order, to direct instead that proceedings be taken to make the child a ward of court. The statistics of the Social Welfare Department for the period April 1996 to the end of March 1997 show that two supervision orders under section 19 were made.
2.105Under section 20, the court can exercise some of the powers under section 19 where it has already ordered maintenance and one of the spouses has wilfully neglected to maintain a child.163 The rest of the Ordinance deals with maintenance and property for spouses and children.
Welfare of the child
2.106Section 48C of the Matrimonial Causes Ordinance (Cap 179) provides:
“for the avoidance of doubt, section 3 of the Guardianship of Minors Ordinance (Cap 13) (which provides that the welfare of the child shall be the first and paramount consideration) shall apply in relation to any order for the custody care or supervision of a child which may be made under this Ordinance or the Matrimonial Proceedings and Property Ordinance (Cap 192).”164
161 At 469, referring to S v S (otherwise D) (1968) 112 Sol Jo 294.
162 Section 19(5).
163 This order would have been made under section 8.
164 This was added by the Matrimonial Causes (Amendment ) Ordinance (Ord. No. 10 of 1983), section 2.