CLP v CSN
District Court
Miscellaneous Proceedings No. 102 of 2014
Deputy Judge Ada Yim in Chambers
Family Law
4 September 2015

Proceedings under Guardianship of Minors Ordinance – application by grandmother for guardianship under s. 8D(2)(b) – no jurisdiction to determine application as child not minor who “does not have any parent, guardian or other person having parental rights”

M and F never married. Their daughter, C, was born in 2007 and F left “for good” soon after. X, the maternal grandmother of C, had been taking care of her since M left a few months after obtaining public housing for them in 2010. M and F’s whereabouts were unknown. X faced difficulties arranging C’s education and for a passport and sought guardianship of C under s. 8D(2)(b) of the Guardianship of Minors Ordinance (Cap. 13) (the “GMO”). There was no evidence that F had ever applied for parental rights so as to be treated as her father under the GMO. Under s. 3(1)(c)(i) of the GMO, in relation to the custody or upbringing of a minor who was illegitimate, the mother shall have the same rights and authority as if the minor were legitimate.

Held, that:

  • M had parental rights with respect to C pursuant to s. 3(1)(c)(i) of the GMO. M had never relinquished such rights (and indeed, could not do so) nor had the same been taken away by any court order. Although M had not been a caring and responsible mother for a few years, this did not encroach on her parental rights. Accordingly, C was not a minor who “does not have any parent, guardian or other person having parental rights with respect to” her under s. 8D(2)(b) and thus, the Family Court did not have jurisdiction to adjudicate X’s application.
  • However, C had been neglected by her parents and it was not in C’s paramount interest to leave the issue unresolved. X could request the Director of Social Welfare (the “Director”) to bring appropriate proceedings concerning the custody and right of access to C under s.10 of the GMO; and the care and protection of C. Under s. 34 of the Protection of Children and Juveniles Ordinance (Cap. 213), the Juvenile Court could commit C to the care of X; appoint the Director to be C’s legal guardian; and the Director could make an order regarding the custody and control of C. X would have proper authority to have care and control over C until she attained 18. Should M return and claim C, the care and protection order could be discharged or varied under s.34(1B).
Jurisdictions: 

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