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THE LAW REFORM COMMISSION OF HONG KONG - page 98 / 360

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3.122For those persons who do not fall into the categories of entitlement set out in subsection (4), section 10(9) provides that in deciding whether to grant leave or not, the court shall have particular regard to the following:

(a)the nature of the proposed application,

(b)the applicant’s connection with the child,

(c)the risk that the child’s life might be disrupted to such an extent that he would be harmed by the proposed application, and

(d)where the child is being looked after by a local authority:

(i) the authority’s plans for the child’s future, and

(ii) the wishes and feelings of the child’s parents.441

Child as a party

3.123Where an application for an order under section 8 is made by the child concerned, under section 10(8), the court will grant leave only if it is satisfied that the child “has sufficient understanding to make the proposed application.”442  Such a requirement is designed to ensure that the application is the child’s, not that of any adult.  Where a child is not given leave it may still be possible for him to be joined as a party to the proceedings.443  This was a jurisdiction to be reserved for the resolution of matters of importance concerning the child.444

3.124The child can also apply for leave to begin or defend proceedings, under the 1989 Act and under the High Court’s inherent jurisdiction, without a next friend or guardian ad litem by filing a written request setting out reasons for the application or by making an oral request at any hearing.445  This relaxed the rule which prohibited a minor from bringing or defending proceedings otherwise than through a next friend or guardian ad litem.  The child may also proceed without a next friend or guardian ad litem where a solicitor considers that the child is able, having regard to his understanding to give instructions and the solicitor has accepted instructions to act for the child.446

Rationale for leave

3.125The requirement of leave is intended to protect the child and his family against unwarranted interference in their comfort and security, while ensuring that the child’s interests are properly respected.  The English Law Commission remarked that:

“There will hardly ever be a good reason for interfering in the parents’ exercise of their responsibilities unless the child’s welfare is seriously at risk from their decision to take, or more probably not to take, a particular step, and only the people involved in taking that step for them would have the required degree of interest (the obvious

441 Section 10(9).

442 Section 10(8).

443 Cretney & Masson, op cit at 558-9.

444 An application  for leave for a specific issue order by a 14 year old to go on holiday with her friends was rejected in Re C (Minor : Leave to Apply for Orde) [1994] 1 FCR 837.

445 Rule 9 (2A) of the Family Proceedings Rules 1991, added by SI 1992/456.

446 Idem.

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