Letter to Hong Kong Lawyer

Dear Editor,

The ruling of no jurisdiction of the paternal grandmother’s application of minor’s custody in CLP v CSN [2015] HKEC 2503 may raise the eyebrows of the family practitioners (Cases in Brief, Hong Kong Lawyer, March 2016).

I was alerted in FCMP 121/2007 and wasted no time in discussing the jurisdiction issue in the topic of “Third Party Applications for Care of Minors” (Hong Kong Lawyer, July 2009). I mentioned that:

“In Re R (an infant) (custody to non-parent) [1974] 1 All ER 1033, a guardianship application under the UK Guardianship of Minors Act 1971 (“GMA”), their lordships concurred that, by looking at the parliamentary intent of s. 9(1) of the GMA, a custody order could be made in favour of someone whom one might, for convenience, call a stranger.

When we compare s. 9(1) of the GMA, which states that ‘the court may … make such order regarding … the custody of the minor’, with the identical s. 10(1) of the Guardianship of Minors Ordinance (Cap. 13) (“GMO”), it is not difficult to see that the same legislative intent is in play. It is and was submitted, like it was in FCMC 3168/2003, that the application by the grandmother was faithful and proper and that the court may make a custody order in her favour under the welfare principle in s. 3 of the GMO.”

It strikes me that by a passing of nearly seven years no revamp has been made regarding the minor’s custody in a situation like the aforementioned. I doubly commend the relevant Reform Committee to speed up the process with the purpose of saving the court’s time and public funds in dealing with future applications of the same kind.

Jurisdictions: 

Solicitor, Ambrose Ng & Co