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THE LAW REFORM COMMISSION OF HONG KONG - page 97 / 360

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Applications without leave

3.118There are 3 categories of persons who may apply for any section 8 order as of right:

(a)parents (including unmarried fathers),

(b)guardians, and

(c)those in whose favour a residence order is in force.433

3.119Section 10(5) sets out the criteria for applications for residence or contact orders without leave:

(a)any party to a marriage (whether or not subsisting) in relation to whom the child is a child of the family,434

(b)any person with whom the child has lived for a total of at least 3 years ending within the past 5 years,435 and

(c)any person who:

(i) in any case where a residence order is in force with respect to the child, has the consent of each of the persons in whose favour the order was made,

(ii) in any case where the child is in the care of a local authority, has the consent of that authority, or

(iii) in any other case, has the consent of each of those (if any) who have parental responsibility for the child.436

3.120Any person who has applied for an order or is named in a contact order is entitled to apply for the variation or discharge of the order.437  Rules of court may prescribe further categories of person who may apply for an order as of right.438

Applications with leave

3.121Applicants who require the leave of court fall into three categories:

(a)local authority foster parents,439

(b)other persons with no right to apply,440 and

(c)children concerned in the proceedings.

433 Section 10(4).

434 Section 10(5)(a).  This category includes a step-parent.  As for the meaning of  “child of the family”, see section 105(1).

435 Section 10(5)(b) and (10).

436 Section 10(5)(c).

437 Section 10(6).

438 Section 10(7).

439 Section 9(3)-(4).

440 Section 10(1)(a)(ii).

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