RE GUARDIANSHIP OF MINORS ORDINANCE

MP No. 3693 of 1991

HEADNOTE

Wardship – service out of the jurisdiction – leave required – interpretation of O.11, r.1(2)(b).

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS NO. 3693 OF 1991

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DECISION

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1.  On 17^th January, I ruled that leave is required to serve out of the jurisdiction an originating summons which invokes the wardship jurisdiction of this court. I said I would give reasons for my decision for the benefit of practitioners. Those reasons I now give.

2.  The plaintiff wife, who had been living in Hong Kong, went to the Philippines some years ago to marry the defendant husband. The defendant’s behaviour became intolerable to the plaintiff. The plaintiff returned to Hong Kong in 1991 with their two children. Feeling that the defendant might try and take the two children from her, the plaintiff issued an originating summons. That summons, as is commonly the case in such matters, seeks relief both under the wardship jurisdiction of this court provided by Section 26 of the Supreme Court Ordinance, and under the Guardianship of Minors Ordinance.

3.  The originating summons was endorsed:-

“Leave for service out of jurisdiction is not required by virtue of Section 26 of the Guardianship of Minors Ordinance and Order 11 rule 1(2)(b) of the Rules of the Supreme court.”

4.  The summons was served on the defendant who admittedly lives in the Philippines. In the meantime, the plaintiff’s solicitors obtained an appointment to hear the originating summons on 10^th January. On 9^th January, the defendant issued a summons in these proceedings which, as amended, sought a declaration that the originating summons had not been duly served because leave to serve out of the jurisdiction, as required by Order 11 rule 9, had not been obtained.

5.  Order 11 rule 1(2) reads:-

“(2) Service of a writ out of jurisdiction is permissible without the leave of the Court provided that each claim made by the writ is –

(b) a claim which by virtue of any written law the High Court has power to hear and determine notwithstanding that the person against whom the claim is made is not within the jurisdiction of the Court or that the wrongful act, neglect or default giving rise to the claim did not take place within its jurisdiction.”

6.  It was not in dispute that rule 1 applies to an originating summons by virtue of rule 9.

7.  For the defendant, Mr. Giblin argued that each claim contained in a writ or originating summons requires legislation enabling it to be heard although the defendant is without the jurisdiction before the writ or summons can be served out of the jurisdiction without leave. He was prepared to concede that there is such legislation in respect of claims under the Guardianship of Minors Ordinance. Section 26 of that Ordinance reads:-

“The jurisdiction conferred on any court by this Ordinance shall be exercisable notwithstanding that any party to the proceedings is not domiciled in Hong Kong.”

8.  For my part, I am not at all sure that that was a proper concession to make. Domicile has a special meaning in law and is of particular importance where children are concerned. A person may be resident in and within the jurisdiction of Hong Kong although not domiciled here. This point was not pursued before me. I am, however, of the view that in any proceedings where relief is sought under the Guardianship of Minors Ordinance alone, leave is required to serve a defendant who is out of the jurisdiction.

9.  Mr. Giblin founded his submission upon Section 26 of the Supreme Court Ordinance which reads:-

“26. (1) Subject to the provisions of this section, no infant shall be made a ward of court except by virtue of an order to that effect made by the High Court.

(2) Where application is made for such an order in respect of an infant, the infant shall become a ward of court on the making of the application, but shall cease to be a ward of court at the expiration of such period as may be prescribed by rules of court unless within that period an order has been made in accordance with the application.

(3) The High Court may, either upon an application in that behalf or without such an application, order that any infant who is for the time being a ward of court shall cease to be ward of court.”

10.  He said that while Section 26 confirms and enlarges the court’s jurisdiction in relation to wardship, it does not confer on the court power to hear and determine wardship proceedings although the defendant is out of the jurisdiction. Consequently, leave to serve out of the jurisdiction is required.

11.  For the plaintiff, Miss Ser said that Order 90 rule 3(1) requires that, other than in an action to which a minor is already a party, an application to make a minor a ward of court must be made by originating summons. Order 90 of the Hong Kong rules, however, does not contain rules 1 and 2 which appear in the English rules, which define “family proceedings” as having the meaning assigned to it by the Matrimonial and Family Proceedings Act 1984 and which assigned such proceedings to the Family Division. The 1984 Act provides that “family proceedings” means “family business” which, Miss, Ser said, clearly comprehends wardship proceedings. In Hong Kong, however, Order 90 rule 11(2) provides a connection with the Matrimonial Causes Rules (Cap. 179) in respect of procedure.

12.  I must observe that the connection is a limited one because rule 11(2) applies those Matrimonial Causes Rules which relate to drawing up and service of orders only.

13.  Rule 109(1) of the Matrimonial Causes Rules reads:-

“109.(1) Any document in matrimonial proceedings may be served out of Hong Kong without leave either in the manner prescribed by these rules or where the proceedings are pending in the High Court or in a district court, in accordance with R.S.C. Order 11, rules 5 and 6 (which relate to the service of a writ abroad).”

14.  It was Miss Ser’s contention that the expression “matrimonial proceedings” which appears in rule 109 includes wardship proceedings. She said that in the Matrimonial Causes Ordinance “matrimonial cause” means any proceedings for divorce, nullity, etc. Section 19(1) of the Matrimonial Proceedings and Property Ordinance provides for the court to make orders as to custody in relation to children in any proceedings for divorce, nullity, etc. and to direct that proper proceedings be taken for making a child a ward of court.

15.  I accept entirely that any proceedings under either of these two Ordinances include proceedings in relation to any children of the parties. I do not accept, however, that that is sufficient to bring wardship proceedings within the provisions of rule 109. Matrimonial proceedings” is defined in the Matrimonial Causes Rules as “any proceedings with respect to which rules may be made under Section 54(1) of the Ordinance”. The Ordinance is the Matrimonial Causes Ordinance, section 54(1) of which confers upon the Chief Justice power to make rules for the purposes and provisions of the Ordinance. I am unable to discern that that section confers on the Chief Justice any power to make rules in respect of wardship. In my view, wardship proceedings are of a wholly unique character which overlaps matrimonial causes and proceedings in many respects, but which does not thereby lose its distinct and separate nature. Section 19(1) of Matrimonial Proceedings and Property Ordinance would appear to confirm this because it would not otherwise be necessary for the court to direct that proper proceedings be taken for making a child a ward of court. In my view, therefore, rule 109 does not assist the plaintiff.

16.  I am satisfied that the correct interpretation of Order 11 rule 1(2)(b) requires legislation that specifically provides for the court to deal with a claim although the defendant is not within the jurisdiction of the court. There appears to be no such provision in Hong Kong’ legislation in relation to the court’s wardship jurisdiction. Accordingly, I find that leave is required to serve an originating summons out of the jurisdiction when the relief sought by that summons is in the court’s wardship jurisdiction.

17.  I am comforted (but not influenced) by the fact that Rayden and Jackson on Divorce (15^th Edn.) hold the same view: Vol. I, p.1498, para. 21. Their view is not, however, supported by any citation of authority other than Order 11 itself.

18.  Accordingly, the defendant was entitled to the declaration which he sought.