Children – Wardship application – Parents living and working in Mainland – Whether child to be made ward of court

M v Y [2009] 6 HKC 360
Court of First Instance
Miscellaneous Proceedings No 526 of 2009
Hartmann JA
6 October 2009

S Chong of Solomon C Chong & Co, assigned by Director of Legal Aid for the plaintiff.
1st defendant in person (absent).
2nd defendant in person (absent).

The plaintiff applied for an infant girl born in Hong Kong whose natural parents lived and worked in the Mainland to be made a ward of court. The plaintiff, the grandmother of the child, had been given power of attorney by the parents to enable her to care for and represent the interests of the child. The child was intended to be made a ward of court with the plaintiff given parental control. The period of wardship was intended to run until the child reached the age of majority.
As the plaintiff was legally aided, the representing solicitor sought an order that there be taxation in accordance with the Legal Aid Regulations.

Held, dismissing the application and granting order for taxation:

Wardship was within the inherent jurisdiction of the High Court. In the exercise of this jurisdiction, the court acted in a parental, administrative and inquisitorial manner. Its purpose was to protect the property and/or the person of the ward. Its duty was to act in a way that was best suited to serve the true interests of the ward and, if it was necessary, the court would exercise this supervisory jurisdiction over an extended period of time.

Wardship would only be exercised when there was a real need for the court to protect the interests of a child. There was no stated limit to the jurisdiction. But there was an underlying common denominator that was the imminent or immediate need to afford protection for a child when that protection may not readily be derived from any other source.

In the exercise of its inherent jurisdiction in wardship, the court was not to be relegated to the level of some sort of administrative bureau which ‘registered’ children who were 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 the court.

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 was no suggestion of bad faith or negligence on the part of counsel. Taxation of the plaintiff ’s costs was ordered in accordance to the Legal Aid Regulations.