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THE LAW REFORM COMMISSION OF HONG KONG - page 96 / 360

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3.113The court is empowered to make a section 8 order “in any family proceedings in which a question arises with respect to the welfare of any child”.428  The definition of “family proceedings” covers almost all proceedings in which issues affecting the upbringing of a child might be raised.429  Included in the definition are proceedings under the inherent jurisdiction of the High Court in relation to children.  These are principally wardship proceedings.  This would reduce the use of wardship in cases where active supervision of the court is not required.  If wardship proceedings are brought, the court may dispose of them by means of a section 8 order.

“It is a major objective of these proposals to reduce the need to resort to the wardship jurisdiction of the High Court.  In many cases, wardship is invoked, not because of any need for the court to exercise continuing parental responsibility, but because no other proceedings are available.  Once they are, the court itself may be more inclined to decline jurisdiction or at least dispose of the proceedings in this way.”430

3.114Proceedings under the Matrimonial Causes Act 1973 are also included. 431

Application by third parties

3.115Under the old law, there were “haphazard limitations” on applications by guardians and a “confusing array of provisions” which allowed people other than parents and guardians to seek custody and access.432  Such restrictions could be avoided by making the child a ward of court.  The 1989 Act aimed to reduce the need to use wardship, to remove the technical rules on locus standi and to ensure that anyone with a genuine interest in a child’s welfare may apply to the court in family proceedings.

3.116Section 9 restricts the application for a section 8 order to persons other than a local authority.  However this should be seen in the context of a separation of powers between the public and private law in the Children Act 1989, despite the Act bringing together both types of law.  Section 9 also restricts a local authority foster parent from applying unless the authority consents and that he is a relative.  Alternatively the child must have lived with him for at least three years.

3.117Section 10 allows the application for an order under section 8 by a person entitled to apply or a person who has obtained the leave of the court to make the application.  

428 Section 10(1).

429 Section 8(3) and (4).  “Family proceedings” include proceedings under the Matrimonial Causes Act 1973, the Domestic Violence and Matrimonial Proceedings Act 1976 and Part III of the Matrimonial and Family Proceedings Act 1984.

430 Law Com No 172, paragraph 4.35.

431 Cretney & Masson, op cit at 543.

432 Law Com No 172, paragraph 4.39.

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