Clp v Csn (Formerly Known As Hty Or Htz) And Another

CourtFamily Court (Hong Kong)
Judgment Date04 Sep 2015
Citation[2016] 1 HKLRD 272
Judgement NumberFCMP102/2014
SubjectMiscellaneous Proceedings
FCMP102/2014 CLP v. CSN (FORMERLY KNOWN AS HTY OR HTZ) AND ANOTHER

FCMP 102/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 102 OF 2014

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IN THE MATTER of S, a girl, born in October 2007, the minor;

and

IN THE MATTER of an application under Section 8D(2)(b) of the Guardianship of Minors Ordinance (Cap.13)

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BETWEEN

CLP Applicant

and

CSN
(formerly known as HTY or HTZ)
1st Respondent
LCYC 2nd Respondent
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Coram : Deputy District Judge Yim in Chambers (Not open to public)
Date of Hearing : 28 August 2015
Date of Decision : 4 September 2015

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DECISION
(Guardianship)

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Introduction

1. This is an application by the applicant maternal grandmother of the minor for guardianship pursuant to section 8D(2)(b) of the Guardianship of Minors Ordinance (GMO) Cap.13. The first respondent mother and the second respondent father of the minor were absent throughout the proceedings. The parents were never married to each other, the father disappeared “for good” after the birth of the minor in 2007, while the mother left the minor to the care of the maternal grandmother in 2010. The whereabouts of the parents remained unknown. After due consideration, I refused the application for lack of jurisdiction.

Background

2. The maternal grandmother aged 56 is a civil servant. The maternal grandmother gave birth to the mother in September 1988 and divorced the maternal grandfather in 2003 and was granted the custody of the mother. Despite the divorce, the maternal grandparents continued to live under the same roof. The mother became rebellious since she was promoted to Form 2, she quitted the school and moved out in 2005 at the age of 17.

3. The mother returned home with the father after she found herself pregnant. The parents however did not marry to each other. The father left the mother and the minor for good soon after the birth of the minor in 2007. The mother applied and obtained public housing for herself and the minor in 2010. The mother moved into the public housing unit with the minor and the maternal grandmother, yet shortly after that, the mother moved out and left the minor to the care of the maternal grandmother.

4. Initially the mother would telephone the maternal grandmother and visit the minor; however, the mother was out of contact after a few months. Since then the minor has been taken care by the maternal grandmother with the assistance of the maternal grandaunt, the elder sister of the maternal grandmother.

5. The maternal grandmother is financially supporting the minor and will continue to do so. The minor is now aged 7, the maternal grandmother has experienced difficulties in arranging her education and passport without being properly appointed as her guardian.

6. The maternal grandmother applied for guardianship by an originating summons dated 16 April 2014, as she did not know the whereabouts of the parents, she applied and was granted leave to serve the parents by inserting advertisement in newspaper.

7. When the matter first came before me in October 2014, I had reservation as to jurisdiction. I explained my reservation to the maternal grandmother and the solicitor representing her. I adjourned the matter and suggested them to consider care and protection proceedings and adoption proceedings.

8. The maternal grandmother applied to restore the matter and was represented by Ms Yanky Lam on the restored hearing on 27 May 2015. I repeated my reservation, and adjourned the matter to 28 August 2015. I also requested the official solicitor to represent the minor and a social investigation report related to the minor be prepared.

9. The official solicitor shared my reservation, and Ms Lam for the maternal grandmother tried to persuade me otherwise. I have considered the submission from Ms Lam, yet I am not persuaded. I am with the view that I do not have jurisdiction in the present matter. I, however, agreed with Ms Lam that for the interest of justice, the interpretation of section 8D(2)(b) of the GMO should be taken to the appellant court and indicated that I would...

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