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THE LAW REFORM COMMISSION OF HONG KONG - page 57 / 360

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2.135There is nothing in section 34 making the parent or guardian a party to the care proceedings, nor is there any provision as to a right of appeal.  They have no right to legal aid, as legal aid only relates to proceedings and not to legal advice.  The parent could seek legal aid for wardship, though the Court of First Instance may not intervene if another court has already exercised jurisdiction over a child.

Separate representation

2.136It seems strange that there is provision for separate representation in private law proceedings but there is no provision in the Protection of Children and Juveniles Ordinance (Cap 213), even though the Director of Welfare can intervene in private law proceedings.  However, under the Official Solicitor Ordinance (Cap 416) the juvenile court could make a request for the Official Solicitor to “act for any party involved in proceedings under the ... Ordinance ... relating to the care and protection of a child or juvenile.”187

Access by parent to child

2.137It would seem that one way that a parent could gain access to a child who has been made the subject of a care order is to apply under section 10 of the Guardianship of Minors Ordinance (Cap 13).  It is not known whether the Director of Social Welfare has exercised his right to use section 10 to obtain custody or an access order in favour of the parent.

Variation of order

2.138It seems that, even though the court has no power to order access under the Protection of Children and Juveniles Ordinance when making the original care order, it can on an application for a variation order.  There is scope under section 34C(1) to vary an order under section 34(1)(a), (b) or (c) on the application of a parent or guardian or of any person to whose care a child or juvenile has been committed.  It would seem that only section 34C(2)(b) could be relevant to a parent applying for access in the juvenile court in that it allows the court to insert any requirement which could have been included in the original order.  However, section 34C(6) provides that if there is an application to discharge or vary an order made under section 34(1)(a) which appointed the Director as guardian, the juvenile court shall have power, whether or not it discharges the original order, to make any order as to the custody or control of or access to the child or juvenile as it considers to be for the benefit of the child or juvenile.  It may also discharge or vary any order or requirement made under section 34(5) by the Director.  It is not known whether any orders have been so made by the juvenile court.

2.139The Guardianship of Minors Ordinance (Cap 13) gives jurisdiction to the District Court or the Court of First Instance.188  There is no reference to the juvenile court.  Theoretically the same child could be the subject of proceedings in the juvenile court and the District Court with regard to the making of care or supervision orders.  There is an inconsistency between the grounds for a care and supervision order specified in the matrimonial ordinances and Cap 13.  For the sake of fairness

187 Schedule 1, Part 3 of the Official Solicitor Ordinance (Cap 416).

188 Section 23.

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