CLP v. CSN (FORMERLY KNOWN AS HTY OR HTZ) AND ANOTHER

FCMP 102/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 102 OF 2014

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DECISION
(Guardianship)

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Introduction

1. This is an application by the applicant maternal grandmother of the minor for guardianship pursuant to section 8D(2)(b) of the Guardianship of Minors Ordinance (GMO) Cap.13.  The first respondent mother and the second respondent father of the minor were absent throughout the proceedings.  The parents were never married to each other, the father disappeared “for good” after the birth of the minor in 2007, while the mother left the minor to the care of the maternal grandmother in 2010.  The whereabouts of the parents remained unknown.  After due consideration, I refused the application for lack of jurisdiction.

Background

2. The maternal grandmother aged 56 is a civil servant.  The maternal grandmother gave birth to the mother in September 1988 and divorced the maternal grandfather in 2003 and was granted the custody of the mother.  Despite the divorce, the maternal grandparents continued to live under the same roof.  The mother became rebellious since she was promoted to Form 2, she quitted the school and moved out in 2005 at the age of 17.

3. The mother returned home with the father after she found herself pregnant.  The parents however did not marry to each other.  The father left the mother and the minor for good soon after the birth of the minor in 2007.  The mother applied and obtained public housing for herself and the minor in 2010.  The mother moved into the public housing unit with the minor and the maternal grandmother, yet shortly after that, the mother moved out and left the minor to the care of the maternal grandmother. 

4. Initially the mother would telephone the maternal grandmother and visit the minor; however, the mother was out of contact after a few months. Since then the minor has been taken care by the maternal grandmother with the assistance of the maternal grandaunt, the elder sister of the maternal grandmother.   

5. The maternal grandmother is financially supporting the minor and will continue to do so.  The minor is now aged 7, the maternal grandmother has experienced difficulties in arranging her education and passport without being properly appointed as her guardian.

6. The maternal grandmother applied for guardianship by an originating summons dated 16 April 2014, as she did not know the whereabouts of the parents, she applied and was granted leave to serve the parents by inserting advertisement in newspaper.

7. When the matter first came before me in October 2014, I had reservation as to jurisdiction.  I explained my reservation to the maternal grandmother and the solicitor representing her.  I adjourned the matter and suggested them to consider care and protection proceedings and adoption proceedings.

8. The maternal grandmother applied to restore the matter and was represented by Ms Yanky Lam on the restored hearing on 27 May 2015.  I repeated my reservation, and adjourned the matter to 28 August 2015.  I also requested the official solicitor to represent the minor and a social investigation report related to the minor be prepared.

9. The official solicitor shared my reservation, and Ms Lam for the maternal grandmother tried to persuade me otherwise.  I have considered the submission from Ms Lam, yet I am not persuaded.  I am with the view that I do not have jurisdiction in the present matter.  I, however, agreed with Ms Lam that for the interest of justice, the interpretation of section 8D(2)(b) of the GMO should be taken to the appellant court and indicated that I would hand down my written judgment in 14 days with a view that leave to appeal to be given on this ground in due course.   Time being I have requested the social welfare officer to consider the appropriateness of care and protection proceedings in the present case.

Discussion

11. Section 8D(2) of the Guardianship of Minors Ordinance Cap.13 (GMO) provides that:.

“(2) On application by any person, the court may, if it thinks fit, appoint the person to be the guardian of a minor if –

(a) the parent or guardian who has a custody order over the minor dies; or

(b) the minor does not have any parent, guardian or other person having parental rights with respect to the minor.”

12. The social investigation report confirmed the maternal grandmother has all along been providing good care to the minor since her birth.  I agree with Ms Lam that it is highly undesirable and certainly not in the paramount interest of the minor to leave the issue of guardianship and parental rights unsolved given the clear fact that the natural parents intentionally left the minor behind.  Should I have jurisdiction I would have granted the order requested.

13. Ms Lam submitted that there is no reported case directly on the point.  She tried to rely on the obiter of M v H [2006] 1 HKFLR.  In that the mother applied for the return of her 2 little boys, they were then aged 6 and 7 respectively, whom she left in the care of their paternal grandfather some 5 years ago after the accidental death of her husband, the father of the boys.  The boys have since settled will in their grandparents’ family and have shown strong rejection of their mother whose application is strenuously opposed by the grandfather.  At the end the mother was granted the custody, care and control of the boys subject to a supervision order.  HHJ Bruno Chan took the opportunity to review the ability of the grandfather to make an application for custody care and control :

“Prima facie, the Grandfather has no standing in Hong Kong law. He is a ‘stranger’. Under s10 GMO, only a parent or the Director of Social Welfare can make an application for custody or access. The grandfather is neither. However, it is possible under s5 GMO for the Court to appoint the grandfather as a guardian to act jointly with the mother. Under s9, if two guardians are unable to agree on any question affecting the minors, the court may make such order as it deems appropriate in all the circumstances. Further the court accepted English precedent, where the wording of s3 the GMO was interpreted very widely so as to enable a ‘stranger’ to successfully apply for custody and care and control under a broad interpretation of the welfare principle.”

14. Section 5 of the GMO provides that “subject to section 19(4) of the Matrimonial Proceedings and Property Ordinance (Cap.192) and any court order to the contrary, on the death of a parent of a minor, the surviving parent (if any) is the guardian of the minor either alone or jointly with any guardian appointed under this Part.  Section 8D is one of the provisions under Part 3 of the ordinance.  The identity of the natural parents is known.  Though the parents were never married to each other, their names are recorded in the minor’s birth certificate.  It is the maternal grandmother’s case that the parents are alive yet the whereabouts are unknown. 

15. Ms Lam submitted that the father and mother have never claimed or exercised their parental rights with respect of the minor nor have fulfilled their parental obligations to maintain, support, up bring and take care of the minor.  Except the maternal grandmother, there is no one else maintaining and taking care of the minor.  There is no guardian or other person having parental rights with respect to the minor.  Ms Lam tried to persuade me that the phase “the minor does not have any parent” is wide enough to cover the situation in the present case.  And in the event the father and/or the mother turn up and resume the parental rights and obligations in place of the maternal grandmother, the parents can apply for a discharge pursuant to section 8E of the ordinance.

16. According to section 3(1)(c)(ii) of GMO where the minor is illegitimate, a father shall only have such rights and authority, if any, as may have been ordered by a court on an application brought by the father under paragraph (d) of the section.  Section 21 of GMO specifically provides that for the purposes of sections 5, 6, 7, 8D and 11, a person who is the natural father of a child who is illegitimate shall not be treated as the father of the minor unless he is entitled to the custody of the minor or enjoys any right or authority with respect to the minor by virtue of an order in force.  There is no evidence that the father ever applied for parental rights.  Thus the father would not be regarded as a parent or a person having parental rights with respect to the minor.  

17. The mother however, by virtue of section 3 (1)(c)(i) of GMO shall have the same rights and authority as she would have by virtue of paragraph (b) of the ordinance as if the minor were legitimate. 

18. In my view it is beyond argument that the mother is a parent having parental right to the minor.  She had exercised her parental right to arrange accommodation for the minor by applying public housing and handed over the minor to the maternal grandmother (who has provided good care to the minor since her birth) before she left home for her own life.  That the mother has neglected the minor does not render the mother becomes a parent without parental right to the minor or render the minor become a child does not have any parent.   

19. As the official solicitor put in his report, the present case is a typical scenario of the natural mother leaving a minor to be taken care of by the maternal grandmother without leaving any clue as to her own whereabouts.  The natural father on the other hand has never been part of the care arrangements with regard to the minor.  According to section 21 of the GMO the father in the present case is not a parent or any person having parental rights with respect to the minor.  The natural mother however, has parental rights with respect to the minor without the need of a court order.  She has never given away her parental rights (and she indeed cannot do so) nor has the same been taken away from her by virtue of any court order.  At best, one can say the mother is not a caring and responsible mother who has not visited or provided for her own daughter for a few years.  This however does not work to anyhow encroach upon her parental rights with respect to the minor.  In essence, the present case is not a scenario of the minor does not have any parent, guardian or other person having parental rights with respect to her either.  Thus the family court does not the jurisdiction to deliberate and adjudicate this present application which is expressly premised on section 8D (2)(b).

20. The official solicitor is with the opinion that given the situation, the maternal grandmother should instead request the Director of Social Welfare to apply under section 10 of the GMO for a court order regarding the custody and the right of access to the minor.  And referring to the statement made by Her Honour Judge Chu (as she then was) in CTT v SLWE [2011] HKEC 351,

“11. …Unfortunately, there is no jurisdiction for this court to make any access order for any third party, unless such application is made by a parent or by the Director of Social Welfare under section 10 of the GMO.

12.  This problem in our legislation has already been set out in paragraph 3.6 and paragraph 10.37 to 10.43 of the Law Reform Commission’s March 2005 Report on Child Custody and Access. Recommendation 28 therein in particular recommends the removal of the limitation in section 10 of the CMO on the right of third parties to apply to court for orders concerning minors…  Unfortunately, so far, no legislative changes are in sight in Hong Kong.”

21. The official solicitor also mentioned his report that the maternal grandmother might consider taking out formal adoption proceedings.  “Under section 6 of the Adoption Ordinance ( Cap.290), the court hearing the adoption application can dispense with consent of parents if the parent(s) has abandoned, neglected the minor or cannot be found or it is of opinion that the consent to adoption ought in all the circumstances of the case to be dispensed with.  And again, the procedure of adoption will invariably involve the Director of Social Welfare who will as a matter of usual practice investigate and make recommendations as to the appropriateness and workability of the proposed adoption.”

22. I understand that the maternal grandmother has reluctance in taking out an adoption proceedings which will alter the established grandmother and grandchild relationship with the minor, and would create an embarrassing situation should the mother turn up later.  I have suggested the maternal grandmother to consider care and protection proceedings.

23. Section 34 of the Protection of Children and Juveniles Ordinance (Cap.213) provides that :

“(1) A juvenile court, on its own motion or upon the application of the Director of Social Welfare … may –

(a)appoint the Director of social Welfare to be the legal guardian of such child …; or

(b)commit him to the care of any person whether a relative or not, who is willing to undertake the care of him …

:

:

(2) For the purposes of this Ordinance, a child … in need of care or protection means a child ... –

(a) who has been or is being … neglected …;or

(b) whose health, development or welfare has been or is being neglected …

:

:

And who requires care or protection.

(4)(a) Any person … to whose care a child … is committed under this section shall, whilst the order is in force, have the like control over the child … as the parent and shall be responsible for his maintenance, and the child … shall continue in the care of such person …, notwithstanding that he is claimed by his parent …

(5) Where the legal guardianship of any child … is vested in the Director of Social Welfare he may, subject to any order to the contrary made by a juvenile court –

(a) make any order … regarding the custody and control of the child … which he thinks desirable in the interests of that child …

:

:

(6) An order under subsection(1)(a) … shall … cease to have effect on the date the child … in relation to whom the order was made attains the age of 21 or marries.

(6A) An order under subsection 1(b) … in relation to a female, shall cease to have effect … on the date she attains the age of 18 or marries.”

24. The minor in the present case has been neglected by her parents.  Without the custody of the minor, the grandmother has experienced difficulties in arranging her education and passport.  The grandmother would have the same difficulties should the minor come up with a major medical issue in the future.  By section 34 the juvenile court may commit the minor to the care of the grandmother, appoint the Director of Social Welfare to be the legal guardian of the minor, and the Director of Social Welfare may make any order regarding the custody and control of the minor.  The grandmother would have proper authority to have care and control and make decision for the minor as her grandmother and such care and protection order would take effect up to the minor attains 18 by then she would become an adult.  And should the mother return and resume her parental rights and obligations in the future, the care and protection order may be discharged or varied pursuant to subsection (1B) of the section. 

Conclusion

25. For the reasons mentioned above, I am with the view that I do not have the jurisdiction to adjudicate the present application premised on section 8D(2)(b) of the ordinance. However, the maternal grandmother may request the Director of Social Welfare to take out appropriate proceedings regarding the custody, care and the right of access to the minor.

Costs

26. Accordingly I consider the proper course in the present case is to make no order as to costs, including all costs reserved.