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third party cannot apply, the court can order that the child is committed to the care of a relative or any other person who is willing to undertake the care of the child.182

2.125Section 34(2) states that a child or juvenile needing care or protection means a child or juvenile:

“(a)who has been or is being assaulted, ill-treated, neglected or sexually abused; or

(b)whose health, development or welfare has been or is being neglected or avoidably impaired; or

(c)whose health, development or welfare appears likely to be neglected or avoidably impaired; or

(d)who is beyond control, to the extent that harm may be caused to him or to others,

and who requires care or protection.”

2.126There is nothing in the ordinance to indicate whether the parent can apply for access to a child who has been removed to a place of refuge under section 34E or indeed when a care order is being made.  Section 34(5) provides that where the Director of Social Welfare has been vested with the legal guardianship of a child or juvenile, he may, subject to any order to the contrary by a juvenile court:

“(a)make any order (including if he thinks fit an order for removal to and detention in a place of refuge) regarding the custody and control of the child or juvenile which he thinks desirable in the interests of that child or juvenile.”

2.127Presumably, this allows the Director to refuse an application by parents for access to the child.  The reference to “order” is curious as it purports to give a quasi-judicial discretion to the Director.  It is not known whether the Director has ever exercised this power.  There has been criticism as to whether a parent has a right of access to a child taken into the care of the Director of Social Welfare under section 45A.  This section provides for child assessment and for the removal of the child for assessment.183

2.128 However, section 36 provides that nothing in sections 34, 35 or 45A ousts the jurisdiction of the Court of First Instance to make any order to appoint a guardian, or make orders for custody or access.  This section was amended in 1993,184 but it does not mention the powers of the District Court concerning these issues.  Perhaps the section was intended to deal with the wardship powers which can only be exercised by the Court of First Instance.

2.129Section 39 gives the Chief Executive in Council power to make regulations concerning, inter alia, “visits to children and juveniles”.  But nothing is said about access orders.  No regulations have been made under section 39.

182 Section 34(1)(b).

183 Liu infra.

184 Amended by the Protection of Women and Juvenile (Amendment) Ordinance (Ord. No.25 of 1993), section 11.

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