Family Law Week – On Wardship

Wardship Proceedings

Wardship is prerogative in nature.  In Halsbury’s Laws of Hong Kong, it explains the jurisdiction of the court on Wardship as “In Hong Kong, Wardship jurisdiction lies in the Court of First Instance. It originates from the concept that the Queen of England, as parens patriaeis, is mother of all the children in all the places of which Her Royal Highness remained monarch and included Hong Kong. The Court of First Instance has inherent jurisdiction to deal with the custody of any child who is a Hong Kong subject and irrespective of where the child may be at the relevant time or of the fact that one parent may be resident out of the jurisdiction. However, the court may be cautious to exercise its jurisdiction where a child is not within the jurisdiction. A foreign child who otherwise is resident in Hong Kong will also be subject to the court’s jurisdiction. The court will have jurisdiction notwithstanding that the court of a foreign country where the child may be also has jurisdiction to make an order. In such a case, the court will have to determine whether Hong Kong is the forum conveniens.” (para 180.339)

Re Y (minors) [1984] HKLR 204

Jackson-Lipkin J. explained, “That [power] of course is (not) exercised by Her personally, but centuries ago was bestowed upon her Lord Chancellor, and is now delegated to her High Court Judges.”

He said in his judgment, “Wardship jurisdiction is a derivatory jurisdiction going back to the most ancient of times: The Queen as parens patriaeis mother not only of all the children in Her Kingdom, but of all the children in all the places scattered all over the globe, of which She remains Monarch. That includes Hong Kong and its dependencies. But it goes further than that, because She is not only parent of all those children, but She also exercises that parental care over any children within Her jurisdiction. That, of course, is no longer exercised by her personally, but centuries ago was bestowed upon Her Lord High Chancellor, and is now delegated to Her High Court Judges. Whether it be Her High Court Judges in Australia, Canada or New Zealand or in The Falkland Islands, Gibraltar, Grenada or Hong Kong, it is the same jurisdiction. It is unfettered in width. It gives the Wardship judge complete and absolute control. He can see to it that neither parent has care and control of his wards, because his wards they become. He can give care and control to strangers. He can not only control such matters as who has the day-to-day “care and control” (to use the conventional phrase), he can not only control such matters as financial support, he can approve or disapprove of schools; he can approve or disapprove of change of names; he can approve or disapprove of change of religion: In other words, he has the complete and absolute authority of his Monarch, who has the complete and absolute authority of a Royal parent over a subject child.”

The Law after 1997

After 1 July 1997, its basis of jurisdiction is now founded in s. 24(2) of the Hong Kong Reunification Ordinance. Section 24(2) states that “Those prerogative powers (including rights, privileges and immunities) exercisable by a public officer immediately before 1 July 1997, except for those that are inconsistent with the Basic Law, shall on and after that date continue in existence, vest in the Chief Executive and be exercisable by the corresponding public officer in the HKSAR”.

Wardship jurisdiction is now exercised by a judge of the Court of First Instance. Once a minor becomes a ward of the court, the court has unrestricted power for the welfare of the child. The court will determine who has the care and control of the child until the child ceases to be a ward of court.

Re Y (minors) [1984] HKLR 204    

Facts: Jackson-Lipkins J. set out the facts and his decision in the following words, “My wards are a boy and a girl of very tender age. The father and mother separated and, divorce proceedings ensued, the mother being the petitioner. I have tried to explain to the father that that does not imply any guilt on his part, but merely that the marriage has irretrievably broken down. At first there was, what I might call, “the obvious attempt” by these two parties, both racially Chinese, to try to avoid court proceedings by saying that the mother could have the daughter and the father could have the son. All I can say as to that is the court is not interested in the feelings of the parents, father wanting son and mother wanting daughter, or father wanting son and mother conceding that son should stay with father, and father not wanting daughter but conceding that daughter should stay with mother. Although I know full well the origin of that approach, and though I understand it completely, and I am quite well aware that, when a daughter marries, she marries out of the family for ever, and ever and ever, whereas the son carries on the name, and the son can worship and pay respect to his deceased parents, nonetheless, as these are my wards, I have to put their true interest and welfare far, and well, above the personal feelings, and even deep seated beliefs, of father and mother. And I came to the conclusion on the evidence at a fairly early stage that these two little children ought not to be separated, ought not to be torn apart by a tradition however ancient. I am fortified in that view by what has been put before me on behalf of the wards by those representing and advising the official solicitor, and I am fortified in that view by the remarks of the social welfare workers of what they saw of the affection of the children one for the other, and of that mutual affection for one parent, just as, on the other side, there was some affection for the other parent by one of the wards. However, the matter had to be gone into thoroughly, and thoroughly it has been gone into, and I must say that I have derived immense assistance from the care taken in this matter by Miss Jacqueline Leong who, while remembering at all times her duty to her solicitors, and consequently theirs to their client, has been a model of fairness and accuracy in her presentation, and in the face of very grave temptation, because, as will be apparent from some earlier decisions I have given in this matter, there were most unfortunate incidents at an early stage in the proceedings. At one stage, the father set about the mother actually within the precincts within the door of the courtroom itself, and, shortly after, launched a vicious attack on the mother immediately without my court, and had to be restrained by two burly admiralty solicitors waiting to come on before my brother Mantell in the adjoining court. Despite all that, the dispassion one expects of experienced counsel has manifested itself throughout, and I have found it, as I have said, of very considerable assistance. The advantage of time in this case has been that the mother had become much more reasonable, and contrition appears to have overtaken the father. How deep and how true that contrition is, I can not tell: Time alone can tell. But on the occasions he has been before me, both when brought here by the police and dealt with on the contempt proceedings, and in the Wardship proceedings, contrition has been most apparent: Also, I believe, when he appeared before a magistrate on a charge of assault. In all his answers to me and, indeed, in all his addresses to me, he has shewn himself now in a reasonable and sensible frame of mind as befits the father of two small children, and I commend him for it. I have told him that I have overlooked his previous behaviour, and that is true, or I would not have said it. Obviously, it is there still at the back of my mind, and, should anything untoward happen, it would be brought again to the fore and put in the balance in case this is brought before me for re-consideration in any way contrary to the order I am going to make today. …

I will direct that these two little children remain my wards, (and they will not be removed from the jurisdiction of this court without an order of myself or one of my brothers sitting in the High Court of Justice) and I order that care and control of both my wards be committed to the father; that there be staying access to the mother at the home of a certain aunt of the wards, whose better description will appear in the formal court order:

  • On alternative weekends from 14.00 hours on Saturday to 17.00 hours on Sunday with effect from the 25th day of February 1984, and
  • for half the school holidays, Easter, Summer, Christmas and Chinese New Year.”

Jackson-Lipkin J. put it this way, “Even if a plaintiff decides not to press for the remedy sought in the originating summons, a defendant, or, indeed, a stranger, by inter partes summons, or even by the lodging of an affidavit, can seek orders for care and control, or directions for the future upbringing of the wards, even if wholly at variance with what the plaintiff originally sought. The court will proceed to determine to whom the wards should go, and give all necessary directions and orders for their future, regardless of a plaintiff’s decision not to pursue the prayer of the originating summons. Such a decision by the plaintiff can never take away from the judge his prime duty to decide what is best in the interest of the wards; first if they should continue to be wards; and second, if they should, what orders should be made. And the Wardship jurisdiction is not exercised like the (civil) divorce jurisdiction in the District Court, or the (common law) jurisdiction in the High Court. There is a greater degree of informality, a greater breadth of vision, there is greater feeling, and, as Lord Scarman pointed out, the only thing that matters is what is best suited to the true interest and the welfare of the wards. That is a jurisdiction which, once conferred upon that particular Wardship judge, can never be given up until those children come of age: They are his children. And this is another point where confusion has arisen, particularly in Hong Kong, because there are certain fetters that I have not yet mentioned on the jurisdiction of the Wardship judge. One of them is that, so long as they remain his wards, he can not abandon his responsibility for them: His first and foremost decision is either that they remain his wards or that he de-wards them. If they remain his wards, the custody of those wards remains in him: He can not give the custody of those wards to any other person at all; all he can do is to bestow “care and control” of the children on one or other persons, retaining to himself the general supervisory function as both father and mother. I well appreciate that the jurisdiction in which I am sitting, (which is very, very different from that in The Strand), makes me father and mother of all people in this Colony, whether they be sui juris or under a disability. Wardship, however, is something different from being the notional “father and mother of the people”, which is merely an old Chinese tradition. This is something far more important, because, when this originating summons was put before me, I became the actual (not notional) father and mother of both these children, and that I will remain until such time as they are de-warded or I cease to hold this office.”

Who can apply?

A person who has a personal interest in a child’s well-being shall have sufficient locus standi / interest, such as:

(1) a parent;

(2) a relative; or

(3) a non – relative e.g. an educational psychologist.

Who can be Warded?

A ward has to be under 18 years of age. Now, it depends on ordinary residence or presence within the jurisdiction but not an unborn child (see Re F (in utero) (1988) 2 AER 193).

Effect of Wardship

Once warded, the ward comes under the guardianship of the court,

  • the court possesses a whole bundle of parental rights;
  • the court will delegate a person to exercise care and control over the ward;
  • the Wardship judge retains general supervisory function, i.e. major decisions affecting the child;
  • the court may appoint Official Solicitor to act for the ward.

AC v AS HCMP 5425/2001

Lam J. (as he then was) wrote in his judgment and said that “The role of the Official Solicitor in Wardship proceedings was examined by Ormrod LJ in Re G (1982) 3 FLR 340. The following dicta of His Lordship is, if I may say so respectfully, an apposite description of the part played by the Official Solicitor in the present case,

“In custody cases the Official Solicitor is much more than a mere guardian ad litem.  He is at once an amicus curiae, an independent solicitor acting for the children, an investigator, an adviser, and sometimes a supervisor.  Perhaps the nearest analogy is that of counsel to a tribunal of enquiry, a relatively new office but a valuable one.  This, however, is not a new role for the Official Solicitor, as is borne out by Supreme Court Practice [1982] Vol. 2, p.987, para.3452A where the following passage is to be found:  ‘The Official Solicitor is a servant of the court and may at any time be called upon by a judge to carry out an investigation or to assist the court to see that justice is done between the parties (see Harbin v Masterman [1896] 1 Ch 351, per A.L. Smith LJ at p. 368, and per Rigby LJ at p. 371).  He is appointed to act where, if this were not done, there would be a denial or miscarriage of justice.’”

Nature of Wardship proceedings

Wardship proceedings are not strictly adversarial, but parental and administrative. The paramount consideration is the welfare of the ward. According to Re Y (minors) [1984] HKLR 204, where both Wardship and matrimonial proceedings affecting the same child are pending, the matrimonial proceedings in the District Court should be transferred to the Court of First Instance (“CFI”) so that the CFI will have complete control of both sets of proceedings.

The role of the court in Wardship proceedings is described as follows “The Wardship jurisdiction of the court is unfettered and the Wardship court has complete and absolute control of the proceedings. It has been held that the court is not confined to deciding the issues raised by the parties as in a normal adversarial dispute. The duty of the court in these proceedings is not limited to the dispute between the parties; on the contrary its duty is to act in the way best suited in its judgment to serve the true interest and welfare of the ward. The court is guided by the principle that the ward’s welfare is the first and foremost consideration. The court has a very wide jurisdiction to protect a ward from any interference with his welfare and may even look beyond the issues raised by the parties and take a course of action not advocated in the proceedings. In the exercise of the Wardship jurisdiction, the rights and wishes of the parents must be assessed and weighed in their bearing on the welfare of the child, which is paramount, and in conjunction with all the other factors which are relevant to the issue. The court may even deal with matters relating to a ward notwithstanding the subsistence of an order of a foreign court of competent jurisdiction, the principle being that the child’s welfare is the first and paramount consideration.” (Halsbury’s para 180.341)

K v K – [2005] HKFLR 129

Facts: “There were two children of the family, S and S, aged 10 and 7. The plaintiff mother and defendant father, who were cousins, had been married in 1982 by an arranged marriage. Both were practising Muslims. In 1994 the mother had left her home country with the children without telling the father but had later returned to Hong Kong where the parties had lived on and off since 1984. The status of the marriage was uncertain, the mother believing it had been dissolved under Islamic Law, and she had since remarried. She had made allegations of abuse by the father. The children had been wards of Court since May 1995 with care and control to the mother and access to the father on Wednesdays from 4pm to 7pm and Sundays from 11am to 7pm. Access had not been working satisfactorily.

The mother was living in a housing estate with the children. She was responsible for the daily care of the children and for their religious instruction at weekends. She was critical of the father’s attitude towards her and doubtful of the sincerity of declared interest in the children which was absent during the marriage. She nonetheless wanted him to have access to the children, but wanted this to be constructive.

The father’s financial circumstances were much better than those of the mother, since he had a bigger home with domestic help. He was more rigid in conformity with Islamic tradition than the mother, and wished to enhance this by greater contact between the children and his extended family. An uncle and cousin gave evidence on behalf of the father. The father proposed that one of his cousins would marry another cousin in order to provide a female influence within the household.

The father had made numerous criticisms of the mother in respect of the children’s education and their health condition and claimed she had an irresponsible attitude towards the children. He was seeking care and control of the children. [The Court held that] dismissing the Defendant’s application and granting care and control to the mother.

The Social Welfare Officer did not favour staying access and thought the Wednesday access was of no benefit to the children and possibly a disadvantage.

Seagroatt J. held in this case after hearing on 4 June 1996,

(1) The welfare of the children is the paramount consideration and the correct approach is inquisitorial not adversarial.

(2) Unless there is some compelling reason why they should be removed from the mother’s care and control, children of this age should naturally be with their mother. This mother is an intelligent, articulate, caring and concerned mother. The Court had no doubts as to her capacity as a mother and her ability to provide a loving, decent environment which caters to the children’s needs. There was no substance to any of the father’s criticisms of the mother.

(3) Education and religious upbringing of the children are very important aspects of the overall consideration, but religion and cultural backgrounds are not overriding consideration in a claim for care and control. The child’s welfare within the wider community is the most important aspect. If the children are brought up in a less traditionalist and more egalitarian concept of their faith, that is wholly in their interest.

(4) The father’s attitude to access is of a father asserting his possessive right, and his access is not used to the best of his ability and in the children’s interests. Access is being used to aggravate the relationship with the mother. The Wednesday access is of no benefit to the children who need to be encouraged to look forward to access not view it as a chore. For that reason Wednesday access will cease.

(5) The evidence of the Social Welfare Officer was impressive, balanced and thoughtful, and accepted by the Court. The affidavit of a counsellor who has seen only the mother and children was helpful only in as much as it gave an assessment of the mother and children, but it was flawed when it sought to make comparisons between the parties.

(6) The children will remain wards of Court.”

The assessment on the welfare of the child has to be weighed in conjunction with all the other factors which are relevant to the issue. The court has to balance the need for protection of the child with the rights of others.

In re M. and N. (Minors) (Wardship Publication of Information) [1990] Fam. 211

Facts: “Two children, M. aged 14 who was a ward of court, and N. aged 10, were in the care of the local authority and had been placed with a foster mother since 1979 and 1976 respectively. Following the foster mother’s remarriage, M. made confidential allegations to a social worker of sexual abuse by the foster father. In consequence, but honouring the promise of confidentiality given to M., the local authority removed both children from the foster parents without prior consultation or notification of the reason for their action. On receiving indications from a local newspaper that it intended to publish material relating to the removal of the children, the local authority applied ex parte in Wardship proceedings in respect of M. for an order that N. also be made a ward of court, and for an injunction restraining all publication relating to the case. The judge made the orders sought. Accepting that the wards’ welfare might require their protection from identification, the newspaper applied to discharge the injunction on the ground that limited publication was justified by reason of the public interest issue raised by the local authority’s exercise of their powers. The judge refused the application. On the newspaper’s appeal, [the Court of Appeal held,] allowing the appeal, that since the scope of section 12 of the Administration of Justice Act 1960 was limited to restraining publication of Wardship proceedings held in private, any extra protection required express prohibition by injunction; that where there was a genuine public interest in publication but a countervailing risk to the welfare of the child, the court, while not regarding the latter’s interests as paramount, would balance the conflicting interests, and, if satisfied that further protection was required, would impose no wider restraint than necessary to achieve that purpose; and that, accordingly, having regard to the public interest issue raised by the newspaper and to the need to protect the wards from identification, an injunction limited to that purpose would be substituted for that imposed by the judge.”

Wardship jurisdiction in conflict with statutory provision – the court should not interfere with administration functions

Re C (a minor) [1989] 2 HKLR 652

The mother came to Hong Kong illegally to live with the father. A child was born. However, the mother and the child were soon arrested by the Immigration Department with a removal order. The father commenced Wardship proceedings seeking for care and control of the child. The High Court strike out the Wardship proceedings on the ground that it was an abuse of the process of the court. The court held that, “Warship proceedings are wholly inconsistent with the statutory powers conferred upon the Director of Immigration for under Wardship, the minor cannot be removed from the jurisdiction without the leave of the court. Such proceedings will necessarily amount to a fetter at any stage when the Director of Immigration is required to exercise its statutory powers … the functions of the Director of Immigration cannot be hamstrung by Wardship proceedings which were clearly instituted by the plaintiff in order to thwart those powers that have been specifically given to the legislature to control the vexed policy of immigration and deportation in Hong Kong.”

Jones, J. held:

“The duties of the Director of Immigration must be looked at as a whole and not in isolation for he has various duties to perform at different stages. He is empowered to detain a person pending investigation as to whether permission to remain in Hong Kong will be granted or whether a removal order is to be made. If a removal order is made, he has power to continue the detention pending an appeal…Wardship proceedings are wholly inconsistent with the statutory powers conferred upon the Director of Immigration for under Wardship, the minor cannot be removed from the jurisdiction without the leave of the court. Such proceedings will necessarily amount to a fetter at any stage when the Director of Immigration is required to exercise his statutory powers. Nevertheless although the welfare of the child is not a factor that can be taken into account, humanitarian grounds are taken into consideration.

Wong Chiu Ngar-chi v Wong Hon-wai, Linus [1987] HKLR 454  

In the Court of Appeal, Cons VP held that “The basic principle in a case of this kind was that the welfare of the infants was the first and paramount consideration. But there was a secondary principle or guideline, that the court should not lightly interfere with such reasonable way of life as was selected by that parent to whom custody had been rightly given, for fear that such interference would result in a sense of resentment against the children.”

Use of Wardship Proceedings

The use of Wardship is wide and flexible. The categories of cases are non-exhaustive.

Some examples include:

(1) in litigation over custody and control of children (see s.10 of GMO or divorce proceedings)

(2) to prevent or authorize medical treatment of minors

(3) to prevent child from being removed out of jurisdiction

(4) to return an abducted child (reduced by introduction of Child Abduction and Custody Ordinance)

(5) to allow non-parent to bring matters of a child to court

(6) to effect overseas adoption

(7) to “seek and find” order under its inherent jurisdiction

(8) to prevent or authorize medical treatment of minors

In Re Y (minors) [1984] HKLR 204

The wards are a boy and a girl of very tender age. The father and mother separated and the mother petitioned for divorce proceedings.

At first there was “the obvious attempt” by these two parties, both racially Chinese, to try to avoid court proceedings by saying that the mother could have the daughter and the father could have the son.

Jackson-Lipkin, J. held:

“All I can say as to that is the court is not interested in the feelings of the parents, father wanting son and mother wanting daughter, or father wanting son and mother conceding that son should stay with father, and father not wanting daughter but conceding that daughter should stay with mother…Although I know full well the origin of that approach, and though I understand it completely, and I am quite well aware that, when a daughter marries, she marries out of the family for ever, and ever and ever, whereas the son carries on the name, and the son can worship and pay respect to his deceased parents, nonetheless, as these are my wards, I have to put their true interest and welfare far, and well, above the personal feelings, and even deep seated beliefs, of father and mother. And I came to the conclusion on the evidence at a fairly early stage that these two little children ought not to be separated, ought not to be torn apart by a tradition however ancient… I am fortified in that view by what has been put before me on behalf of the wards by those representing and advising the official solicitor, and I am fortified in that view by the remarks of the social welfare workers of what they saw of the affection of the children one for the other, and of that mutual affection for one parent, just as, on the other side, there was some affection for the other parent by one of the wards.

In Re C (A MINOR) [1994] 1 HKLR 60

A baby was born severely deformed. She required an operation, and without such operation she would undoubtedly have died. The parents refused to give their consent to such operation and the Director of Social Welfare applied to make the baby a ward of court. The evidence was that the operation required had not been performed in Hong Kong before and had a 50/50 chance of success. Without the operation the baby would die. With a successful operation the baby could live a relatively normal life although there would be some orthopaedic problems which could be treated at a later stage.

Kaplan,J. held:

“Although as I have said it is a very serious matter to overrule the wishes of caring parents who have carefully weighed up all the factors before refusing to consent to an operation, nevertheless, it is the duty of this Court to consider what is in the child’s best interests. With no surgical intervention she will die. With surgical intervention, she may also die. However, there is an even chance that this rare operation will be a success and, if so, the evidence I have suggests the child will be able to lead a relatively healthy and normal life. Nothing is certain in this life and I can give the parents no more guarantee than could the doctors. Neither can I assure the parents as to the level of support they may receive if the child is handicapped…However, the evidence is that if the operation is successful, she will not be handicapped as a result of any condition which gives rise to this operation. I have a feeling that the parents have also taken into account spinal problems about which no evidence was placed before the Court although the doctors agreed that there was a range of procedures available which could help. It is too soon for orthopaedic specialists to consider the matter because this child has got a rather large hurdle to overcome before that becomes relevant…I have no doubt at all that it is in the best interests of the child to undergo this operation and prior thereto to undergo the angiogram. There is a real chance she may survive and enjoy a normal life and I am not prepared to condemn her to a certain death without giving the doctors the chance to correct nature’s imperfections. If she does not survive, then everyone concerned will know that everything possible was done to give this poor baby a chance of a relatively normal life.

In re B. (A Minor) (Wardship Sterilization) [1988] A.C. 199

Facts: “B., a girl of 17 years, suffered from a moderate degree of mental handicap but had a very limited intellectual development. Her ability to understand speech was that of a six-year-old and her ability to express herself that of a two-year-old child. Her mother, and the staff at the council residential institution where she lived, became aware that she was beginning to show signs of sexual awareness, exemplified by provocative approaches to male members of staff and other residents. The council applied by originating summons for an order making B. a ward of court and for leave to be given for her to undergo a sterilisation operation. Evidence was adduced that B. could not be placed on any effective contraceptive regime and that she was not capable of knowing the causal connection between intercourse and childbirth, the nature of pregnancy or what was involved in delivery. She would panic and require heavy sedation during a normal delivery, which carried the risk of injury to the child, and delivery by caesarian section was deemed to be inappropriate owing to the likelihood of B. opening up her post-operative wounds, thus preventing the healing of the scar. She had no maternal instincts and was unlikely ever to desire or be able to care for a child. After consideration of the evidence Bush J. gave leave for the operation to be carried out. The Official Solicitor, as guardian ad litem, appealed to the Court of Appeal who dismissed the appeal.

On appeal by the Official Solicitor:

Held, dismissing the appeal.”

The House of Lords held “that a court exercising Wardship jurisdiction, when reaching a decision on an application to authorise an operation for the sterilisation of the ward, was concerned with only one primary and paramount consideration, namely the welfare and best interests of the ward; that, accordingly, on the evidence adduced of the risk of B. becoming pregnant, of the lack of any effective contraceptive regime being formulated for her, of the trauma that childbirth would present to her and of the risk of injury to her or her child, and of her inability ever to desire or care for a child, the operation would be in her best interests (post, pp. 202A-B, 204B-C, 205D-F, F-H, 211B-D, 212C-D).”

(3)       to prevent child from being removed out of jurisdiction  

This is the most common use against the kidnapping of a child. Once Wardship proceedings is used the child becomes the ward of court. In which case, the child cannot leave the jurisdiction without the court’s consent.

  • to return an abducted child (see also Hague Convention)

When a child is taken away to another country where that country is a contractual state of the Hague Convention on the Civil Aspect of International Abduction of Child, the wronged parent can apply for the return of the child under the Hague Convention. If the country is not a contractual state, then warship proceedings may be used to obtain the return of the child.

  • to allow non-parent to bring matters of a child to court

Re M v H [2006] HKEC 830

Mother applies for the return of her 2 little boys, aged 6 & 7 years, whom she left in the care of their paternal grandfather, the Respondent, some 5 years ago after the accidental death of the boys’ father. The boys have since settled well in their grandparents’ family and have shown strong rejection of their mother whose application is strenuously opposed by the Grandfather.

The question is not : would the child be better off with the plaintiffs ” but : is the natural family so unsuitable that, as Fox LJ said, “the welfare of the child positively demanded the displacement of the parental right” ?

Judge B Chan held:

“… the Grandfather’s case that this Mother is unsuitable to have the custody of her sons because she abandoned them when they were small and now she wants them back because she is after the compensation awarded to them. It is therefore encumbrance on me to first examine the evidence on the circumstances of the Mother leaving her sons in the care of their grandparents. [however according to the Social Investigation Report] M offers an appropriate and feasible childcare plan if she gets the custody of the children. Considering the need for fostering the mother-child relationship since the children’s tender age, the investigating officer recommends that the custody of the children… be granted to their mother. Here I am satisfied that the boys’ best interests lie with their mother, and that they should be returned to her care as soon as possible without first going to the neutral environment for the reasons aforesaid… If it then becomes apparent that I should reconsider the recommendation of placing one or both boys in a neutral environment, no doubt the Mother and / or the Director can and will urgently bring the matter back before me. To ensure that the Mother will receive the necessary assistance… in particularly as to the arrangement in removing the boys from their grandparents into her care, and also to provide any necessary counselling and / or treatment for the children to help them to rebuild their relationship with their mother, I also make the s. 13 (1) (a) order that both boys shall be under the supervision of the Director of Social Welfare for at least 12 months, with extension if necessary, with directions that both progress reports and clinical psychological report on them be submitted in 6 months.”

Re D (a minor) [1976] Fam 185

A High Court Judge has to decide on “D, a girl aged 11 years, suffered from a syndrome of which symptoms were accelerated growth during infancy, epilepsy, generalised clumsiness, emotional instability, aggressive tendencies and an impairment of mental function. She had a dull normal intelligence and her clumsiness was lessening and her behaviour improving. It was not possible to predict her future role in society but the likelihood was that she would have sufficient capacity to marry. Her widowed mother, worried lest D might give birth to a baby which she was incapable of caring for and which might also be abnormal, wanted D to be sterilised. The consultant paediatrician, under whose care D was, recommended a sterilisation operation and a consultant gynaecologist agreed to perform it. Certain persons concerned with D’s welfare, including the plaintiff, an educational psychologist, challenged the decision to operate. and, in due course, the plaintiff applied to make D a ward of court, the Official Solicitor being appointed as D’s guardian ad litem at the plaintiff’s request. On the questions whether it was appropriate to continue D’s Wardship and whether the operation to sterilise D should be prevented:

Held, (1) that the proposed operation involved the deprivation of a woman’s basic human right to reproduce (post, p. 193E); that the court would not risk the incurring of damage which it could not repair, but would rather prevent the damage being done, and that the operation could be delayed or prevented if D were to remain a ward of court; and, accordingly, that the court should exercise its protective functions in regard to D and continue her Wardship (post, pp. 193H – 194A).”

M v Y and Another [2009] 5 HKLRD 597

Facts: “This is an application in Wardship. It concerns an infant girl born in Hong Kong on 24 April 2007.  The child’s natural parents live and work in the Mainland.  Although geographically their immediate future is in the Mainland, they wish the child to enjoy the benefits of growing up and being educated in Hong Kong.  For that reason, although the child is only two years of age, they have left her with her grandmother here in Hong Kong.  Although the parents have given the grandmother a power of attorney to enable her better to care for and represent the interests of the child, it appears to have been agreed that the position should somehow be formalised by the child being made a ward of court and the grandmother given parental control of the child during the period of Wardship which, although not specified in any of the papers, may run through until the child reaches the age of majority.

Hartmann JA sitting as an additional Judge of Court of First Instance held that,

4. In my view, it is evident, simply by reciting the nature and purpose of the court’s inherent jurisdiction, that it is a jurisdiction which will only be exercised when there is a real need for the court to protect the interests of a child.  There is admittedly no stated limit to the jurisdiction.  That is because each and every case is unique.  But there is an underlying common denominator, that is, the imminent or immediate need to afford protection for a child when that protection may not readily be derived from any other source.

5. In the present case, the child requires no protection.  By way of illustration, there is no need for an order determining questions relating to difficult medical treatment.  The parents in the Mainland are in agreement as to what is best for the child and the grandmother, the plaintiff in the application, is a willing party to that agreement.  In that respect, the future of the child is settled and she continues to enjoy the love and affection of all her family. Nor is there any suggestion that the property of the child needs protection.

6. The fact of the matter is that this application has been made just in case, at some time in the future, the grandmother may need to exercise the responsibilities of the child’s parents in respect of the child’s dealings with the state; that is, in matters relating to the child’s continued residence in Hong Kong, her education and medical treatment.  I can only presume that the power of attorney made in favour of the grandmother by the parents is not considered sufficient and there remains some lingering concern that, even in this age of instant electronic communication, without the backing of a court order problems may be encountered.

7. While I do not disparage such concern, it must be emphasised that this Court, in the exercise of its inherent jurisdiction in Wardship, is not to be relegated to the level of some sort of administrative bureau which ‘registers’ children who are in absolutely no need of present protection on the basis simply that they may at some time in the future be better served by being able to refer to the protection of this Court.

8. I would go one step further by saying that, if this Court is called upon to exercise its jurisdiction in Wardship when there is no imminent or immediate need for protection, persons may seek to manipulate the jurisdiction; for example, to use it to try and finesse anticipated but as yet unrealised difficulties with the immigration authorities.

9. In summary, for the reasons given, this application is dismissed.” (paras. 4 -9)

Devon County Council v S and Another [1994] 1 FLR 355

This is an appeal from the judgment of a District Judge by which he refused the Devon County Council’s application for leave to invoke the inherent jurisdiction of the High Court under the provisions of s.100 of the Children Act 1989. This case demonstrates how Wardship proceedings has been used for the protection of children against child abuse.

Facts: “S had had nine children by a number of different men. Y was not the father of any of those children but was a family friend and was a frequent visitor to the family home. He had been convicted for sexual offences against children three times previously. Reports prepared by the relevant professionals emphasised his paedophile tendencies and concluded that Y represented a grave risk to the children. S, who was otherwise an exemplary mother, did not perceive Y to be a risk to her children. The present application was made by the local authority in order to protect those children. The application for leave to invoke the inherent jurisdiction of the High Court was refused by the district judge, following the decision of the Court of Appeal in Nottinghamshire County Council v P [1993] 2 FLR 134 stating that the local authority should seek the powers it requested by bringing care proceedings. The local authority appealed.”

Thorpe J. (as he then was) in allowing the appeal from the council held that,

“that injunctions preventing a non-family member from contacting or communicating with children at any time or in any place could not be equated with a care order or a supervision order. The present case could be distinguished from Nottinghamshire County Council v P, in that the risk in that case had come from the resident father; thus a care order, which would not necessarily have separated the children from their mother, could have been used to manage the situation. In this case, where the threat came from an external source, a care order would be quite inappropriate. A supervision order would be likewise inappropriate since it would not control the only individual who required control, namely Y. At present, any member of the family might apply to the court to exercise its inherent powers to protect the children at risk. Where none did so, it was quite wrong that a restrictive interpretation of s 100 should prevent the local authority from so doing.”

  • to effect overseas adoption

In The Matter Of S.C., An Infant (NO.2) And In The Matter Of Guardianship Of Infants [1962] HKLR 499 

Facts: “The Director of Social Welfare of the Hong Kong Government applied by originating summons as next friend and on behalf of an infant girl, aged 12 1/2 years, for an order that she be made a ward of Court. In the summons, it is claimed that he is the appointed guardian of the infant and to have liberty to give consent to the adoption of the infant overseas and may thereafter send the infant to that country.

For the purposes of such adoption may delegate his rights of guardianship to such person in that country as he may deem proper for the exercise while the infant shall remain therein, with further liberty to apply thereafter for the ending of the said guardianship.”

This case is one of a number of similar cases in which infants, generally foundlings, are sent abroad from Hong Kong for adoption under the aegis of adoption societies in the country of destination.

“Affidavit evidence showed that in this case the infant had been brought as a foundling to a certain “Home” soon after birth, that she had remained at the Home up to the present and that no claim had been made by any person in respect of her custody or guardianship notwithstanding advertisements and inquiries by or on behalf of the applicant. That it was now proposed to send the infant abroad to an organisation of international standing, for adoption by persons to be allocated by the organisation, but as yet not determined.

That that organisation required the consent of persons lawfully authorised in that behalf, in the absence of the natural parents, to the emigration of the infant and to give irrevocable consent to her adoption abroad.”

The applicant was advised that it was doubtful whether under the Protection of Women and Juvenile Ordinance, 1951, he has the authority to give such consents, at least without an order of the Court.

Mills-Owens, J in the first hearing held that,

“The Court does not take upon itself the care of all the children within the jurisdiction… It is only where that fundamental circumstance is satisfied that the jurisdiction of the Court arises. Can it be said here that the infant is in need of protection? If that question is to be answered in the affirmative then it must follow that every child in an institution is in need of protection, which is absurd. And why should one stop at institutional children-why not go on to say that the same applies to every child under guardianship whose guardian is anxious that the child should emigrate but whose guardian is unable to give lawful consent thereto; is an infant to be “in need of protection” on that account? Assuming, however, that a case arises where an infant is… in need of protection, what is the Court’s proper duty? Surely it is to be itself entirely satisfied what future lies before the infant… In the exercise of such a jurisdiction, traditionally exercised with the greatest care, it is not for the Court to be satisfied at second-hand, leaving it to some other person or body to assume and bear the burden of ensuring the infant’s future welfare. The Court is to act as a wise or prudent parent would act. Clearly no such parent would be so far neglectful of his parental duty as to send off his child to an unknown home in an unknown place to live in unknown circumstances-even on the best of assurance. The criterion is the wise or prudent parent having a proper sense of parental responsibility for the child’s future welfare. Nor does the fact that ultimately an order of a Court abroad will be made serve to enable a Court here to regard its functions as properly discharged. Presumably because as institutional children they are in need of protection, the protection required being that of an adoptive home. I do not regard myself as qualified to say that in every case an adoptive home would be a better home than an institution. I would certainly not be prepared to say that of an adoptive home in respect of which I have not the slightest knowledge or the slightest evidence. I would agree that as a guardian deriving his authority as such from local jurisdiction it is very doubtful whether his authority extends beyond the jurisdiction… Whether a guardian may ever wholly delegate, or be authorised wholly to delegate, his functions as such appears to me to admit of only one answer, namely that he cannot do so. No doubt a guardian may bring about the situation whereby, for example when his ward is sent to school, another person becomes in loco parentis to the infant, and he could also be authorised by an order by the Court to sent the child out of the jurisdiction to the care of a foreign guardian. But I see no basis upon which he could delegate his functions to an amorphous society or organisation or some unspecified person over whom the Court would have no jurisdiction. … Delegation of guardianship appears to me to be a contradiction in terms, guardianship being a strictly personal relationship intended to be capable of being strictly enforced. No doubt it may be a good thing to seek to provide homes for institutional children, for foundlings, orphans and other “deprived” children, by sending them abroad for adoption. But it is not the province of the Courts to express any opinion on that. It is not a matter requiring, or admitting of, judicial determination or discretion. It is clearly a matter of policy in which the Courts have no part to play under the law as it stands.      If the policy is to be continued successfully, as in the opinion of most persons no doubt it ought to be, then a proper legislative foundation for it must be laid. And if the Court is to perform any useful function in these matters then its jurisdiction and powers are to be clearly stated and restricted to matters admitting of judicial determination. Summons dismissed.”

The Director of Social Welfare appealed against the judge’s decision and in the appeal court, it was held that,

  1. The fact that the infant was receiving shelter, food and clothing in an orphanage did not remove her from the jurisdiction of the court on the ground that she was not in need of care and protection;
  1. The court would exercise its jurisdiction with respect to an infant whenever it was for the benefit and welfare of the infant that it should do so, even where the infant was not in need of care and protection in the sense that it was being deprived of shelter, food and clothing;
  1. The court had jurisdiction to grant the relief sought in the summons;
  1. The jurisdiction exercised by the court on behalf of the Sovereign as parens patriae in respect of infants is an unusual and distinctive jurisdiction and was administrative in character. Wherefore the function of the court in exercising such jurisdiction was not limited “to exercise judicial discretion and determination in the discharge of its prerogative jurisdiction”;
  1. That although the information supplied might not be sufficient for the court to be entirely satisfied as to the infant’s future, such certainty is unnecessary; that often all the court can do is to draw inferences from facts placed before it, on affidavit by reliable deponents;
  1. That the wide latitude requested by the guardian was necessary and desirable;
  1. That on the information supplied the court was in no doubt that it was in the interests of the infant for the application to be granted.”

Dewarding a Child

Section 26 of High Court Ordinance laid down the procedures for Wardship. An infant becomes a ward of the court on the making of application (s.26(2)), and only ceases to be a ward if:

(1) an application for appointment for the hearing is not made within 21 days after the issuing of the summons (see O.90 R4(1)(a)); or

(2) the court refuses to make the child a ward of the court upon hearing the summons (see O.90 R.4(1)(b)); or

(3)  the ward comes of age; or

(4) there is an order for deward (see s.26(3) of the High Court Ordinance and O.90 R.4(2))

An application to deward may be made at any time. In deciding whether to make the order or not, the court will consider what is in the best interest of the child. see Y v M CACV 333/2002

(See also Practice Direction – 23.1 but note the errors in par 4 thereof. In par 4, the reference to “r. 2 of 0.90 of the Rules of the Supreme Court” should be “r.4 of O. 90 of the Rules of the High Court” instead)