M v. Y and Another

HCMP 526/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 526 OF 2009

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BETWEEN

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Before : Hon Hartmann JA (sitting as an additional Judge of the Court of First Instance) in Chambers (Not Open to Public)

Date of Hearing : 6 October 2009

Date of Ruling : 6 October 2009

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R U L I N G

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1.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.

2.Aside from the fact that (by an oversight) there was a failure to file the essential papers in support of the application, I am troubled by the nature of the application itself.  Put bluntly, it seems to me to be an inappropriate application.

3.Wardship, to my understanding, is a discrete and ancient aspect of the inherent jurisdiction of the High Court.  In the exercise of this jurisdiction, the court acts in a parental, administrative and inquisitorial manner.  Its purpose is to protect the property and/or the person of the award.  Its duty is to act in a way that is best suited to serve the true interests of the ward and, if it is necessary, the court will exercise this supervisory jurisdiction over an extended period of time.

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.

10.The solicitor representing the plaintiff informs me that the plaintiff is legally aided and seeks an order that there be taxation in accordance with the relevant regulations.

11.I confess that I was initially of the view that, as I considered the application itself to be so entirely inappropriate, I should call upon the plaintiff’s legal representative to make representations why he should not be debarred from claiming costs from the Legal Aid Department.  However, during the course of the hearing it became evident that the plaintiff’s counsel had investigated matters and done so in some depth, being concerned himself that this may not be an appropriate application.  There is no suggestion, therefore, of bad faith or negligence on the part of counsel.  I would add that the problem of Hong Kong children being left in Hong Kong with family members while the parents work outside of the jurisdiction, particularly in the Mainland, is a problem that has been increasing in frequency over the last few years and at some time no doubt an application of the present kind was bound to be made.  In the circumstances, I have not considered any punitive order as to costs.

12.However, for the benefit of the profession, it is my intention to circulate this ruling, duly edited of course.

13.My orders, therefore, are as follows:

1. That the application is dismissed, the child being removed from wardship.

2. That there is to be the taxation of the plaintiff’s costs in accordance with Legal Aid Regulations.

Mr S Chong of Solomon C. Chong & Co., assigned by Director of Legal Aid for Plaintiff

1^st Defendant in person (absent)

2^nd Defendant in person (absent)