Separate representation of children in court proceedings in Hong Kong03Apr2020
At common law, children (in Hong Kong being persons below the age of 18 years old) do not have the capacity to initiate or participate in civil proceedings (Order 80 rule 2 of the Rules of the High Court (Cap. 4A)). However, family law proceedings frequently concern the interests of children and, from time to time, proceedings are required to be initiated on a child’s behalf, such as applications for wardship and declarations of parentage.
Guidance for separate representation for children in matrimonial and family proceedings in Hong Kong is set out in Practice Direction PDSL6. In Hong Kong, children can either be represented by a next friend or a guardian ad litem. A next friend represents a child’s interests in proceedings they initiate on the child’s behalf. A guardian ad litem represents a child’s interests where the child is a defendant to or intervener in proceedings. The roles of next friends and guardians ad litem are essentially the same subject to certain statutory requirements in certain proceedings.
How are appointments made and who can be appointed?
It is now well established in Hong Kong that an application for the appointment of a next friend or guardian ad litem should not be determined on the basis of any opposition from the other side to the proceedings. Any such opposition will likely serve the interests of that party and not be made in consideration of the best interests of the child (see Yang Foo-oi by Leung Ping Chiu, Roy her next friend v Wai Wai Chen and Another  HKCFI 1312).
Guardians ad litem
Appointments of guardians ad litem are generally reserved for exceptional cases, despite the courts’ wide discretion to make them, and such appointments are not common in Hong Kong. The courts oversee and scrutinise all agreements made in respect of children. However, this is not a failsafe mechanism, and some cases require the assistance of a separate representative for the child where their interests will not be adequately represented otherwise.
Though mums and dads will naturally feel best placed to put forward what is best for their child, it is generally considered improper for a parent to be a child’s guardian ad litem in matrimonial or family proceedings given the likely conflicts of interest. The court can instead appoint the Official Solicitor, if he consents, or another person upon their application or, in proceedings such as adoption applications, the Director of Social Welfare.
Parents and relatives can make applications as next friend of their child for matters such as declarations of parentage and wardship proceedings. A next friend cannot act in person and must act by a solicitor.
Others may act as the next friend of a child only if they have the standing to do so. The question of standing of non-relatives has been recently considered in Hong Kong in G, by his next friend Chan Lui Luna and BVR & Others  HKCFI 816. These are public wardship proceedings brought on behalf of a child whose interests it was deemed were not being looked after by his mother or the Director of Social Welfare. Proceedings were brought on behalf of the child by the Chief Operating Officer of an NGO as the child’s next friend. The NGO had been providing assistance to the child’s mother when a need to intervene on behalf of the child was identified. The next friend’s standing was not challenged by the Court indicating its acceptance of a person in a position such as a member of an NGO to initiate proceedings on behalf of a child.
Role of a separate representative for a child
As has recently been set out in the case of C v S (Separate Representation)  HKFLR 159, the primary duty of a guardian ad litem is to represent the child’s interests in the proceedings. This is not to be mistaken for a duty to represent the child’s views in court as the two may not accord. If the child is of a certain age and sufficient maturity, their views should be sought and considered by their representative and should inform but not be determinative of the position ultimately taken by them.
Legal Aid is available to representatives of children in proceedings in certain circumstances. As will all applications for legal aid, an assessment of the merits of the case will be made. However, if you apply for legal aid as a representative of a child, the ordinary means test will not be conducted in respect of your assets but rather in respect of the means available to the child. For example, maintenance orders that have been made for their benefit.
Joanne Brown and Elizabeth Seymour-Jones
We understand that matters concerning children are sensitive and often require timely action to be taken. If you need advice in respect of matters or proceedings concerning children or need advice regarding separate representation for a child in current or intended proceedings, please contact Partner Joanne Brown.
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.