Protecting Minors – Wards of the Court: Who, what, when and why?08May2023
The term “Ward of the Court” is one which sounds archaic. In a way, it is. The origins stem from feudalism in the Middle Ages in England when the Crown was given rights to exercise powers and duties over orphaned children whose father owned land.
Wardship jurisdiction came about because it is acknowledged that children are especially vulnerable. In a 1975 English case Re X (A Minor) Fam 47, Latey J stated: “They have not formed the defences inside themselves which older people have, and therefore, need especial protection. They are also the country’s most valuable asset for the future.”
It is on that principle that wardship proceedings continue to operate in modern day. The High Court in Hong Kong has an inherent jurisdiction to protect children, and this is the Court’s paramount consideration when any application is brought before it.
Below we set out the key points relating to Wardship Proceedings in Hong Kong:
- What is wardship?
As above, wardship refers to proceedings in Court in which a child is made a ward of the Court. Once a child becomes a ward of the Court, the Court becomes the legal guardian of the child in question (aka the ward).
- Who can be made a ward of the court?
Any child who is under the age of 18 who is either physically present in Hong Kong or has ‘habitual residence’ in Hong Kong can be made a ward of the Court, provided the Court is satisfied that it is in the child’s best interests. Note, however, an unborn child cannot be a ward of Court, save for very exceptional circumstances.
- Who can apply to for wardship?
There are no statutory restrictions on who can make an application for wardship. A wardship application can be brought by parents, extended family members, non-blood related carer of the child, neighbours, child welfare charities, child welfare professionals or the Director of Social welfare. A Judge may also commence wardship proceedings.
Children may also bring about their own wardship application, however they must do so through a next friend or guardian ad litem.
- When can an application be made?
An application for a minor to be made a Ward of the Court can commence at any time when there are concerns about a child’s welfare.
It can be made whether there are any other proceedings (including divorce between parents) on foot or not.
- Why might an application be made?
Wardship proceedings have been invoked in a variety of circumstances.
Most generally, we see cases arising from parents in disagreement about urgent matters or if there is suspicion or fear that the child will be removed from Hong Kong without consent. This urgency of a wardship application is heightened when the potential country the child is removed to is a non-Hague convention country. Wardship applications can pre-empt and protect the risk of departure. This is because wards may not be removed from Hong Kong without permission of the Court.
Other circumstances are where the child is in danger or at risk, and it is in their best interests to be supervised and protected by the Court.
- What happens after a minor becomes a “Ward of the Court”?
Upon wardship being evoked, the ultimate responsibility for the child in question (aka the ward) is placed with the Court. No important step of the Ward’s life can be taken without consent of the Court: what school the Ward goes to, what major medical treatments the ward undergoes, when and where the Ward travels for holidays, amongst others. Applications must be made to the Court for the Court’s approval and naturally this will incur costs, and subject to the caseload of the Court, can take time.
The Court becomes the ultimate guardian of the ward, and the ward is normally be left in the ‘care’ of a particular judge throughout the wardship or until (i) the wardship ends by Court Order or (ii) the ward is reassigned to another judge.
However, this is not to say the ward then lives with the judge and the judge is responsible for the child’s day to day care. Instead, the Court will assign the care and control of the child to an appropriate third party: a parent, relative, foster parent, or a child welfare institution. The child will then continue to live his or her day-to-day life with this third party and unless/until major decisions need to be made, the Court does not step in.
- How do you cease to be a ward of the Court?
The Court retains guardianship of the child until the child ceases to be a ward.
A child automatically ceases to be a ward when he or she turns 18 years of age. Otherwise, an application must be made. Interested parties can make an application to the Court for the child to cease to be a ward of the Court. This can be done so by consent if all parties agree. The Court’s considerations will once again be the Welfare Checklist and ensuring that the dewarding of the child is in the child’s best interests. If no agreement can be reached the Court must decide after a trial on the matter.
In a recent case Tanner De Witt is acting on, the Court on its own volition made an Order that the ward cease to be a Court following adoption of the child by his foster parents.
Like most litigation applications, wardship proceedings can be very costly, time-consuming and have long-lasting effects and obligations. It is not an application which should be institutionalised lightly. In many instances, there are other options for negotiation and/or other less draconian applications which can be made.
Joanne Brown and Joanne Lam
For specific advice on your situation, please contact:
Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.