The Director of Social Welfare v. The Official Solicitor

HCMP 582/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 582 OF 2005

____________

BETWEEN

____________

Before : Hon Lam J in Chambers

Date of Hearing : 14 June 2005

Date of Judgment : 29 June 2005

______________

J U D G M E N T

______________

1.The Director of Social Welfare [“the Director”] applied for an order under Section 18(2) of the Guardianship of Minors Ordinance [“GMO”] Cap.13 that the Official Solicitor be appointed as the guardian of the estate of CCH, a minor [“the Minor”].

2.The application was made by the Director in his capacity as the guardian of the Minor appointed by the Juvenile Court on 12 January 2004. That was an appointment made pursuant to Section 34 of the Protection of Women and Juveniles Ordinance [“POWJO”] Cap.213.

3.At the hearing on 14 June 2005, this court invited submissions from counsel regarding the relationship between a guardian appointed under POWJO and a guardian appointed under GMO.  Mr Chan, counsel for the Director, helpfully provided this court with a very comprehensive written submissions on 20 June 2005.  I am now satisfied it is appropriate to accede to the application of the Director.

4.It is not necessary for me to recite in full the facts of the case in this judgment.  They could be found in the supporting affidavit of the Social Work Officer.  Suffice for me to say provided this court is convinced that it has the jurisdiction to appoint the Official Solicitor as the guardian of the estate without affecting the appointment of the Director as the guardian of the Minor under Section 34 of POWJO, the circumstances of the case clearly warrant such appointment to be made.  Given that the Minor has no parent upon the demise of his adopted father, there is a clear need for a guardian to be appointed to take care of his property, including his potential claims in succession to the estate of his adopted father.

5.As a matter of law, the court can appoint a guardian for a minor under three different routes,

(a) under its inherent parental jurisdiction over every minor within the jurisdiction;

(b) under GMO;

(c) under POWJO.

Although there are overlaps between them, the power of appointment and the power of a guardian when appointed may differ.  As pointed out by Mr Chan, guardianship over a minor can be guardianship of the person or guardianship of the estate or both.

6.Under POWJO, the appointment can only be made in respect of a child or juvenile who is in need of care or protection as defined under Section 34(2).  Only the Director can be appointed as the legal guardian under Section 34(1)(a) although the juvenile court can, as an alternative, commit the child or juvenile to the care of another person.  Section 34(5) sets out the power of the Director on being appointed as the legal guardian of a child or juvenile.  It can be seen from the subsection that it only relates to the custody and control of the child or juvenile.  It does not extend to the administration of the property of the child or juvenile.  This interpretation is in line with the statutory scheme of POWJO.

7.Section 36 of POWJO makes it clear that the exercise of power under Section 34 by the juvenile court will not affect the power of the Court of First Instance to appoint guardian under the other routes.

8.GMO obviously confers wider power to the court to appoint guardian and the guardian appointed thereunder would have the power similar to that of a testamentary guardian.  A testamentary guardian is a guardian both of the person and the estate, see Halsbury’s Laws of England, 4^th Edn., Para.527 n.6 and Section 18 of GMO.  However, the circumstances under which the court could make an appointment of guardian under GMO are still limited.  Under Section 7, the power can only be exercised where a minor has no parent, no guardian of the person and no other person having parental rights with respect to him.  Under Section 8, the court can only make an appointment upon removal of a testamentary guardian or a guardian appointed under GMO.  In the present case, given the appointment of the Director under Section 34 of POWJO, there is a guardian of the person in respect of the Minor.  Thus Section 7 is not applicable.  Since there is neither a testamentary guardian nor a guardian appointed under GMO to be removed, Section 8 is also not applicable.

9.That leaves us with the common law power of the court to appoint guardian for the estate of a minor under its inherent jurisdiction. That inherent jurisdiction can be evoked independently from wardship proceedings, see Bevan, Child Law (1989) p.187 Para.4.11; Re Willoughby (1885) 30 Ch D 324 at p.327-8 and p.332-3; Re McGrath [1892] 2 Ch 496 at p.511-3; Re N [1967] Ch 512 at p.528-531; Re F [1973] Fam 198 at p.202D to G.  In my judgment, that power is expressly preserved by Section 18(2) of GMO. In Re P [1967] 2 All ER 229 at p.234H, Stamp J said,

“… the exercise of a limited statutory jurisdiction over children does not, in the absence of express words in the statute, fetter the powers of the Chancery Division in exercising the jurisdiction of the Crown as parens patriae over wards of court.”

10.This is the power evoked by the Director.  Although reference was made to Section 18(2) in the application, the power of the court in making the appointment actually derives from the common law rather than GMO itself.

11.I am therefore satisfied that the court has jurisdiction to make the order.  The next question is whether the court should exercise the jurisdiction in the present circumstances.  Since the Section 34 appointment has nothing to do with guardianship over the estate of the Minor, there is no conflict between such an appointment being made under the inherent jurisdiction in this instance and that appointment.  As mentioned, I am satisfied that the circumstances called for an appointment of guardian in respect of the estate of the Minor.

12.I therefore make an order in terms of the handwritten draft submitted to me at the hearing, viz.,

1.	The Official Solicitor be appointed to be the guardian of the estate of the minor CCH.
2.	Without prejudice to the generality of paragraph 1, the Official Solicitor be authorised to:
	(a)	take such steps as may be necessary to obtain a grant of representation to the estate of CTL, deceased, late of father of the abovenamed minor, for the use and benefit of the minor.
	(b)	take such steps as may be necessary to claim under the Employees’ Compensation Ordinance, Cap. 282, in respect of the death of the late father, if appropriate.
3.	The Official Solicitor is to act without providing security for the performance of its duties approved by the Court.
4.	The Official Solicitor is to be remunerated for his services and his costs are to be taxed on an indemnity basis and such costs are to be paid out from the estate of the abovenamed minor.

There shall also be no order as to costs.

13.I will also grant leave for the publication of this judgment with the appropriate editing to preserve the anonymity of the Minor.

Mr Mark Chan of Department of Justice, for the Plaintiff

Ms S Cheung of Official Solicitor, for the Defendant