Cap. 13 - Guardianship of Minors Ordinance

To consolidate and amend the law relating to the guardianship of minors. [17 February 1977](Format changes—E.R. 2 of 2012) Part 1 Preliminary 1. Short title This Ordinance may be cited as the Guardianship of Minors Ordinance. 2. Interpretation In this Ordinance, unless the context otherwise requires—court (法院) means the Court of First Instance or the District Court; (Amended 25 of 1998 s. 2)custody order (管養令) means an order made—(a) under section 10(1), 11(1)(a), 12(a) or 13(1)(b);(b) under section 5(1)(b) of the Separation and Maintenance Orders Ordinance (Cap. 16);(c) under section 19 or 20 of the Matrimonial Proceedings and Property Ordinance (Cap. 192); or(d) by the Court of First Instance in the exercise of its jurisdiction relating to wardship so far as it gives the care and control of a minor to any person; (Added 1 of 2012 s. 3)domestic proceedings (家事法律程序) means any proceedings under the—(a) Separation and Maintenance Orders Ordinance (Cap. 16);(b) Matrimonial Causes Ordinance (Cap. 179);(c) Domestic and Cohabitation Relationships Violence Ordinance (Cap. 189);(d) Matrimonial Proceedings and Property Ordinance (Cap. 192);(e) Adoption Ordinance (Cap. 290);(f) Parent and Child Ordinance (Cap. 429); and(g) inherent jurisdiction of the Court of First Instance in relation to minors; (Added 1 of 2012 s. 3)maintenance (贍養) includes education;maintenance order (贍養令) means an order made—(a) under section 10(2)(b), 11(1)(b)(ii), 12(b)(ii) or 13(2)(b), (3)(a) or (4) for periodical payments; or(b) under section 10(2)(c), 11(1)(b)(iii) or 12(b)(iii) for secured periodical payments; or(c) under section 10(2)(a), 11(1)(b)(i), 12(b)(i) or 13(2)(a) for payment of a lump sum; (Added 18 of 2003 s. 2)parent (父母) means father or mother; (Amended 1 of 2012 s. 3)will (遺囑) includes a codicil. (Added 1 of 2012 s. 3) Part 2 General Principles 3. General principles (1) In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property—(a) in any proceedings before any court (whether or not a court as defined in section 2) the court—(i) shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to— (Amended 1 of 2012 s. 4)(A) the views of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and (Amended 1 of 2012 s. 4)(B) any material information including any report of the Director of Social Welfare available to the court at the hearing; and(ii) shall not take into consideration whether, from any other point of view, the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father; (Replaced 69 of 1982 s. 2)(b) except where paragraph (c) applies, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other; (Amended 17 of 1993 s. 19)(c) where the minor is illegitimate—(i) a mother shall have the same rights and authority as she would have by virtue of paragraph (b) if the minor were legitimate;(ii) a father shall only have such rights and authority, if any, as may have been ordered by a court on an application brought by the father under paragraph (d); (Added 17 of 1993 s. 19)(d) the Court of First Instance or a judge of the District Court may, on application, where it is satisfied that the applicant is the father of an illegitimate child, order that the applicant shall have some or all of the rights and authority that the law would allow him as father if the minor were legitimate. (Added 17 of 1993 s. 19. Amended 25 of 1998 s. 2)(2) Subsection (1)(a) shall have effect as regards any application under subsection (1)(d). (Replaced 17 of 1993 s. 19)[cf. 1971 c. 3 s. 1 U.K.; 1973 c. 29 s. 1(1) U.K.] 4. Unenforceability of agreements to give up parental rights (1) An agreement for a man or woman to give up in whole or in part, in relation to any child of his or hers, the rights and authority referred to in section 3 shall be unenforceable, except that an agreement made between husband and wife which is to operate only during their separation while married may, in relation to a child of theirs, provide for either of them to do so; but no such agreement between husband and wife shall be enforced by any court if the court is of opinion that it will not be for the benefit of the child to give effect to it. [cf. 1973 c. 29 s. 1(2) U.K.](2) Where a minor’s father and mother disagree on any question affecting the minor’s welfare, either of them may apply to the court for its direction, and subject to subsection (3) the court may make such order regarding the matters in difference as it may think proper. (Amended L.N. 80 of 2012) [cf. 1973 c. 29 s. 1(3) U.K.](3) Subsection (2) shall not authorize the court to make any order regarding the custody of a minor or the right of access to the minor of his or her father or mother. (Amended L.N. 80 of 2012) [cf. 1973 c. 29 s. 1(4) U.K.](4) An order under subsection (2) may be varied, discharged, suspended or revived after being so suspended by a subsequent order made on the application of either parent or, after the death of either parent, on the application of any guardian or (before or after the death of either parent) on the application of any other person having the custody of the minor. (Amended 65 of 1986 s. 2) [cf. 1973 c. 29 s. 1(5) U.K.](5) Nothing in this section shall affect the operation of any enactment requiring the consent of both parents in a matter affecting a minor. (Amended 17 of 1993 s. 19) [cf. 1973 c. 29 s. 1(7) U.K.] Part 3 Appointment, Removal and Powers of Guardians 5. Rights of surviving parent as to guardianship Subject to section 19(4) of the Matrimonial Proceedings and Property Ordinance (Cap. 192) and any court order to the contrary, on the death of a parent of a minor, the surviving parent (if any) is the guardian of the minor either alone or jointly with any guardian appointed under this Part.(Replaced 1 of 2012 s. 5) 6. Power of parent and guardian to appoint guardian (1) A parent of a minor may appoint any person to be a guardian of the minor after that parent dies.(2) A guardian of a minor may appoint any person to be a guardian of the minor after that guardian dies.(3) An appointment made under this section must be in writing, dated and—(a) signed either by the person making the appointment or by another person at the direction, and in the presence, of the person making the appointment; and(b) attested by 2 witnesses.(4) Despite subsection (3), a parent or guardian may appoint a guardian by a will executed in accordance with section 5 of the Wills Ordinance (Cap. 30).(5) In appointing a guardian of a minor, a parent or guardian of the minor is required to take into account the views of the minor as far as practicable having regard to the minor’s age and understanding.(6) An appointment made under this section has no effect unless the appointed person accepts the office either expressly or impliedly by conduct.(7) An appointment under this section may be made by 2 or more persons acting jointly.(8) The validity of an appointment of a guardian is not affected by a failure to comply with subsection (5).(Replaced 1 of 2012 s. 5) 7. When guardianship takes effect automatically A person appointed by a parent or guardian as the guardian of a minor under section 6 automatically assumes guardianship over the minor on the death of the appointing parent or appointing guardian (as the case may be) if—(a) the appointing parent or appointing guardian has a custody order over the minor immediately before he or she dies irrespective of whether anyone else has a custody order over the minor at that time; or(b) the appointing parent or appointing guardian lived with the minor immediately before dying and the minor does not have any surviving parent or surviving guardian when the appointing parent or appointing guardian dies.(Replaced 1 of 2012 s. 5) 8. Assumption of guardianship by application Subject to section 7, a person appointed by a parent or guardian as the guardian of a minor under section 6 may, after the appointing parent or appointing guardian dies, apply to the court to assume guardianship over the minor and the court may order the person—(a) to act jointly with the surviving parent or surviving guardian;(b) to act as the guardian of the minor after the minor no longer has any parent or guardian;(c) to act as the guardian of the minor at a time, or after the occurrence of an event, specified by the court;(d) to be removed as a guardian; or(e) to act as the guardian of the minor to the exclusion of the surviving parent or surviving guardian.(Replaced 1 of 2012 s. 5) 8A. Guardian appointed under section 6 to act jointly with surviving parent or surviving guardian (1) Subject to section 8, any guardian appointed under section 6 must act jointly with the surviving parent or surviving guardian (if any) of a minor on assuming guardianship over the minor.(2) If the surviving parent or surviving guardian and the guardian appointed under section 6 think the other is unfit to have guardianship over the minor, either of them may apply to the court and the court may order—(a) the surviving parent or surviving guardian and the guardian appointed under section 6 to continue to act jointly;(b) the surviving parent or surviving guardian to act as the guardian of the minor to the exclusion of the guardian appointed under section 6; or(c) the guardian appointed under section 6 to act as the guardian of the minor to the exclusion of the surviving parent or surviving guardian.(Added 1 of 2012 s. 5) 8B. Revocation of guardian appointment (1) An appointment under section 6 revokes an earlier such appointment (including one made in a will) made by the same person in respect of the same minor, unless it is clear that the purpose of the later appointment is to appoint an additional guardian.(2) An appointment under section 6 (including one made in a will) is revoked if the person who made the appointment revokes it by a written and dated document that is—(a) signed either by the person who made the appointment or by another person, at the direction, and in the presence, of the person who made the appointment; and(b) attested by 2 witnesses.(3) An appointment under section 6 (other than one made in a will) is revoked if, with the intention of revoking the appointment, the person who made it—(a) destroys the document by which it was made; or(b) instructs any other person to destroy the document in the person’s presence.(4) If an appointment under section 6 is made by 2 or more persons acting jointly—(a) the appointment may be revoked by any of them in accordance with subsection (2) or (3); and(b) the person who revokes the appointment must notify all other persons who jointly made the appointment of the revocation.(5) The revocation referred to in subsection (4) has no effect unless paragraph (b) of that subsection is complied with.(6) To avoid doubt, an appointment made under section 6 in a will is revoked if the will is revoked.(Added 1 of 2012 s. 5) 8C. Guardian may disclaim appointment (1) A guardian who wishes to disclaim the appointment is required to disclaim the appointment by notifying the appointing parent or appointing guardian of the disclaimer.(2) If the appointing parent or appointing guardian has died, an appointed guardian who has not assumed guardianship under section 8 and wishes to disclaim the appointment is required to disclaim the appointment by a written, dated and signed document.(3) A disclaimer referred to in subsection (2) does not take effect until the guardian has notified the following persons of it—(a) the executor or administrator of the appointing parent’s or appointing guardian’s estate under the Probate and Administration Ordinance (Cap. 10);(b) the surviving parent;(c) other guardians.(4) If there is no such person as mentioned in subsection (3)(a), (b) and (c) or if they cannot be located, the guardian must notify the Director of Social Welfare of the disclaimer.(Added 1 of 2012 s. 5) 8D. Power of court to appoint guardian of minor (1) After a parent or guardian of a minor dies, the court may, if it thinks fit, appoint a person to be a guardian of the minor if—(a) no guardian has been appointed by the deceased parent or deceased guardian under section 6;(b) the guardian appointed by the deceased parent or deceased guardian under section 6 or by the court under this section or section 8E dies; or(c) the guardian appointed by the deceased parent or deceased guardian under section 6 has disclaimed the appointment.(2) On application by any person, the court may, if it thinks fit, appoint the person to be the guardian of a minor if—(a) the parent or guardian who has a custody order over the minor dies; or(b) the minor does not have any parent, guardian or other person having parental rights with respect to the minor.(3) The power to make an appointment under subsection (2) may also be exercised in any domestic proceedings if the court thinks that the appointment should be made even though no application has been made for it.(Added 1 of 2012 s. 5) 8E. Removal of guardian On being satisfied that it is in the best interests of the minor, the court may, in its discretion—(a) remove any guardian; and(b) appoint another person to replace that guardian.(Added 1 of 2012 s. 5) 8F. Guardian appointed by court to act jointly with surviving parent or surviving guardian (1) A guardian appointed by the court under section 8D or 8E must act jointly with the surviving parent or surviving guardian (if any) of the minor and must continue to act after the surviving parent or surviving guardian dies.(2) If the surviving parent or surviving guardian of a minor has appointed a guardian under section 6, the guardian appointed by the court under section 8D or 8E must act jointly with the guardian appointed by the surviving parent or surviving guardian.(Added 1 of 2012 s. 5) 8G. Guardian to have parental rights and authority A person appointed as the guardian of a minor under this Part has, on assuming guardianship, parental rights and authority with respect to the minor.(Added 1 of 2012 s. 5) 8H. Remuneration for guardian The court may authorize a guardian of a minor to be paid any remuneration for the guardianship service that it thinks fit if the guardian is not a parent of the minor.(Added 1 of 2012 s. 5) 9. Disputes between joint guardians Where 2 or more persons act as joint guardians of a minor and they are unable to agree on any question affecting the welfare of the minor, any of them may apply to the court for its direction, and the court may make such order regarding the matters in difference as it may think proper.[cf. 1971 c. 3 s. 7 U.K.] 9A. Transitional and savings (1) In this section—*commencement date (生效日期) means the day on which the Guardianship of Minors (Amendment) Ordinance 2012 (1 of 2012) comes into operation;pre-amended Ordinance (《未修訂條例》) means this Ordinance as in force immediately before the commencement date.(2) The Guardianship of Minors (Amendment) Ordinance 2012 (1 of 2012) does not affect any proceedings under the pre-amended Ordinance that are pending immediately before the commencement date.(3) Any appointment of a person as guardian of a minor that was made under the pre-amended Ordinance, or under the Court of First Instance’s inherent jurisdiction with respect to the minor, and is effective immediately before the commencement date is, on and after that date, taken to be an appointment made and having effect under this Ordinance.(4) Any appointment of a person as guardian of a minor that was made under the pre-amended Ordinance and has not taken effect immediately before the commencement date is, on and after that date, to be governed by this Ordinance.(5) To avoid doubt, any guardian appointed under the pre-amended Ordinance has the same rights and authority as a guardian appointed under this Ordinance.(Added 1 of 2012 s. 6)Editorial Note:* Commencement date: 13 April 2012. Part 4 Orders for Custody and Maintenance 10. Orders for custody and maintenance on application of either parent (1) The court may, on the application of either of the parents of a minor (who may apply without next friend) or the Director of Social Welfare, make such order regarding— (Amended 65 of 1986 s. 3)(a) the custody of the minor; and(b) the right of access to the minor of either of his or her parents, (Amended L.N. 80 of 2012) as the court thinks fit having regard to the best interests of the minor and to the conduct and wishes of the parents. (Amended 1 of 2012 s. 7)(2) The court may as regards a minor, on the application of a person with whom, whether by virtue of an order under subsection (1) or otherwise, custody of the minor lies at law, make in respect of the minor any one or more of the following orders—(a) an order requiring payment to the applicant by the parent or either of the parents of the minor of such lump sum (whether in one amount or by instalments) for the immediate and non-recurring needs of the minor or for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining the minor before the making of the order to be met, or for both, as the court thinks reasonable having regard to the means of that parent;(b) an order requiring payment to the applicant by such parent or either of such parents of such periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of that parent;(c) an order requiring the securing to the applicant by such parent or either of such parents, to the satisfaction of the court, of such periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of that parent;(d) an order requiring the transfer to the applicant for the benefit of the minor, or to the minor, by such parent or either of such parents, of such property, being property to which the parent is entitled (either in possession or reversion), as the court thinks reasonable having regard to the means of that parent;(e) an order requiring the settlement for the benefit of the minor, to the satisfaction of the court, of such property, being property to which such parent or either of such parents is so entitled, as the court thinks reasonable having regard to the means of that parent. (Replaced 80 of 1997 s. 78)(3) An order may be made under subsection (1) or (2) notwithstanding that the parents of the minor are then residing together, but—(a) no such order shall be enforceable, and no liability thereunder shall accrue, while they are residing together; and(b) any such order shall cease to have effect if for a period of 3 months after it is made they continue to reside together: Provided that, unless the court in making the order directs otherwise, paragraphs (a) and (b) shall not apply to any provision of the order giving the custody of the minor to a person other than one of the parents or made with respect to a minor of whom custody is so given.(4) An order under subsection (1) or an order under subsection (2) (other than an order for a lump sum payment in one amount, for a lump sum to be paid in instalments where all such instalments have been paid or for the transfer of property) may be varied, discharged, suspended or revived after being so suspended, by a subsequent order made on the application of either parent or after the death of either parent on the application of any guardian under this Ordinance, or (before or after the death of either parent) on the application of any other person having the custody of the minor by virtue of an order under subsection (1). (Amended 65 of 1986 s. 3; 17 of 1993 s. 19)[cf. 1973 c. 29 Sch. 2 Pt. II U.K.] 11. Orders for custody and maintenance where person is guardian to exclusion of surviving parent (1) Where the court makes an order under section 8(e), 8A(2)(c) or 9 that a person is to act as the guardian of a minor to the exclusion of the minor’s surviving parent, the court may— (Amended 1 of 2012 s. 8)(a) make such order regarding—(i) the custody of the minor; and(ii) the right of access to the minor of his or her surviving parent, as the court thinks fit, having regard to the best interests of the minor; and (Amended 1 of 2012 s. 8)(b) make one or more of the following orders, that is to say— (Amended 17 of 1993 s. 19)(i) an order requiring the surviving parent to pay to the guardian such lump sum (whether in one amount or by instalments) for the immediate and non-recurring needs of the minor, or for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining the minor before the making of the order to be met, or for both, as the court thinks reasonable having regard to the means of the surviving parent;(ii) an order requiring the surviving parent to pay to the guardian such periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of the surviving parent; (Replaced 65 of 1986 s. 4. Amended 17 of 1993 s. 19)(iii) an order requiring the surviving parent to secure to the guardian, to the satisfaction of the court, such periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of the surviving parent; (Added 17 of 1993 s. 19)(iv) an order requiring the surviving parent to transfer to the guardian for the benefit of the minor, or to the minor, such property, being property to which the surviving parent is entitled (either in possession or reversion), as the court thinks reasonable having regard to the means of the surviving parent; (Added 17 of 1993 s. 19)(v) an order requiring the settlement for the benefit of the minor, to the satisfaction of the court, of such property, being property to which the surviving parent is so entitled, as the court thinks reasonable having regard to the means of the surviving parent. (Added 17 of 1993 s. 19)(2) The powers conferred by subsection (1) may be exercised at any time and include power to vary, discharge or suspend any order (other than an order for a lump sum payment in one amount, for a lump sum to be paid in instalments where all such instalments have been paid or for the transfer of property) previously made under that subsection or to revive any order so suspended. (Amended 65 of 1986 s. 4; 17 of 1993 s. 19)[cf. 1971 c. 3 s. 10 U.K.] 12. Orders for custody and maintenance where joint guardians disagree The powers of the court under section 8(a) or (c), 8A(2)(a) or 9 shall, where one of the joint guardians is the surviving parent of the minor, include power— (Amended 1 of 2012 s. 9)(a) to make such order regarding—(i) the custody of the minor; and(ii) the right of access to the minor of his or her surviving parent, as the court thinks fit having regard to the best interests of the minor; (Amended 1 of 2012 s. 9)(b) to make one or more of the following orders, that is to say— (Amended 17 of 1993 s. 19)(i) an order requiring the surviving parent to pay such lump sum (whether in one amount or by instalments) for the immediate and non-recurring needs of the minor, or for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining the minor before the making of the order to be met, or for both, as the court thinks reasonable having regard to the means of the surviving parent;(ii) an order requiring the surviving parent to pay such periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of the surviving parent; (Replaced 65 of 1986 s. 5)(iii) an order requiring the securing by the surviving parent, to the satisfaction of the court, of such periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of the surviving parent; (Added 17 of 1993 s. 19)(iv) an order requiring the transfer for the benefit of the minor, or to the minor, by the surviving parent, of such property, being property to which the surviving parent is entitled (either in possession or reversion), as the court thinks reasonable having regard to the means of the surviving parent; (Added 17 of 1993 s. 19)(v) an order requiring the settlement for the benefit of the minor, to the satisfaction of the court, of such property, being property to which the surviving parent is so entitled, as the court thinks reasonable having regard to the means of the surviving parent; (Added 17 of 1993 s. 19)(c) to vary, discharge or suspend any order (other than an order for a lump sum payment in one amount, for a lump sum to be paid in instalments where all such instalments have been paid or for the transfer of property) previously made under that section or to revive any order so suspended. (Amended 65 of 1986 s. 5; 17 of 1993 s. 19)[cf. 1971 c. 3 s. 11 U.K.] 12A. Provisions as to powers of court to make orders in favour of children and duration of such orders (1) Subject to subsection (3), the term for which by virtue of an order specified in subsection (2) any payments are to be made or secured to or for the benefit of a child may begin with the date of the making of an application for the order in question or any later date but shall not extend beyond the date when the child will attain the age of 18.(2) The orders specified for the purposes of subsection (1) are an order—(a) under section 10(2)(a), 11(1)(b)(i), 12(b)(i) or 13(2)(a) for payment of a lump sum by instalments;(b) under section 10(2)(b) or (c), 11(1)(b)(ii) or (iii), 12(b)(ii) or (iii) or 13(2)(b), (3)(a) or (4) for periodical payments or secured periodical payments.(3) The court may include in an order referred to in subsection (1) in relation to a child who has not attained the age of 18 a provision extending beyond the date when the child will attain that age the term for which by virtue of the order any payments are to be made or secured to or for the benefit of that child, if it appears to the court that—(a) that child is, or will be, or if such an order or provision were made would be, receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not that child is also, or will also be, in gainful employment; or (Amended L.N. 80 of 2012)(b) there are special circumstances which justify the making of the order or provisions.(4) Any order made by virtue of section 10(2)(b), 11(1)(b)(ii), 12(b)(ii) or 13(2)(b) shall, regardless of anything in the order, cease to have effect on the death of the person liable to make payments under the order, except in relation to any arrears due under the order on the date of such death.(Added 69 of 1997 s. 2) 13. Jurisdiction and orders on application under s. 10 (1) Where an application made under section 10 relates to the custody of a minor, then subject to sections 14 and 15— (Amended 69 of 1997 s. 3)(a) if by an order made on that application any person is given the custody of the minor, but it appears to the court that there are exceptional circumstances making it desirable that the minor should be under the supervision of an independent person, the court may order that the minor shall be under the supervision of the Director of Social Welfare;(b) if it appears to the court that there are exceptional circumstances making it impracticable or undesirable for the minor to be entrusted to either of the parents or to any other individual, the court may commit the care of the minor to the Director of Social Welfare. [cf. 1973 c. 29 s. 2(2) U.K.](2) Where the court makes an order under subsection (1)(b) committing the care of a minor to the Director of Social Welfare, the court may make one or both of the following orders, that is to say— (Amended 65 of 1986 s. 6)(a) an order requiring the payment by either parent to the Director of Social Welfare while the Director has the care of the minor of such lump sum (whether in one amount or by instalments) for the immediate and non-recurring needs of the minor, or for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining the minor before the making of the order to be met, or for both, as the court thinks reasonable having regard to the means of that parent; (Added 65 of 1986 s. 6)(b) an order requiring the payment by either parent to the Director of Social Welfare while the Director has the care of the minor of such periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of that parent. (Added 65 of 1986 s. 6. Amended L.N. 80 of 2012) [cf. 1973 c. 29 s. 2(3) U.K.](3) On an application under section 10 the court may, in any case where it adjourns the hearing of the application for more than 7 days, make an interim order, to have effect until such date as may be specified in the order and containing—(a) provision for payment by either parent to the other, or to any person given the custody of the minor, of such periodical payments towards the maintenance of the minor as the court thinks reasonable having regard to the means of the parent on whom the requirement is imposed; and (Amended 65 of 1986 s. 6)(b) where by reason of special circumstances the court thinks it proper, any provision regarding the custody of the minor or the right of access to the minor of either of his or her parents, (Amended L.N. 80 of 2012) but an interim order under this subsection shall not be made to have effect after the end of the 3 months beginning with the date of the order or of any previous interim order made under this subsection with respect to the application, and shall cease to have effect on the making of a final order or on the dismissal of the application. [cf. 1973 c. 29 s. 2(4) U.K.](4) The District Court may also make such an interim order where under section 23(b) it refuses to make an order on an application under section 10 on the ground that the matter is one that would more conveniently be dealt with by the Court of First Instance; but an interim order under this subsection shall not be made so as to have effect after the end of the 3 months beginning with the date of the order. (Amended 25 of 1998 s. 2) [cf. 1973 c. 29 s. 2(5) U.K.] 14. Additional provisions as to supervision orders (1) Where an order made by the court under section 13(1)(a) (in this section referred to as a supervision order) is made at a time when the parents of the minor are residing together— (Amended 69 of 1997 s. 4)(a) the order may direct that it is to cease to have effect if for a period of 3 months after it is made they continue to reside together; and(b) the order (whether or not it includes a direction under paragraph (a)) may direct that it is not to operate while they are residing together. [cf. 1973 c. 29 s. 3(2) U.K.](2) A supervision order may be varied, discharged, suspended or revived after being so suspended by a subsequent order made on the application of either parent or after the death of either parent, on the application of any guardian under this Ordinance or (before or after the death of either parent) on the application of any other person having the custody of the minor by virtue of an order under section 10(1) or on that of the Director of Social Welfare when the Director has the supervision of the minor by virtue of the order. (Amended 65 of 1986 s. 7; L.N. 80 of 2012) [cf. 1973 c. 29 s. 3(3) U.K.] 15. Additional provisions as to order committing care of minor to Director of Social Welfare (1) Before making an order under section 13(1)(b) committing the care of a minor to the Director of Social Welfare, the court shall inform the Director of the court’s proposal to make the order and shall hear any representations from the Director, including any representations as to the making also of an order under section 13(2) for payment to the Director. (Amended 65 of 1986 s. 8) [cf. 1973 c. 29 s. 4(2) U.K.](2) In relation to an order under section 13(1)(b) or to an order under section 13(2) requiring payment to be made to the Director of Social Welfare, sections 10(3), (4), 19 and 20 shall apply as if the order under section 13(1)(b) were an order under section 10 giving custody of the minor to a person other than one of the parents (and the Director of Social Welfare were lawfully given that custody by the order), and any order for payment to the Director were an order under section 10(2) requiring payment to be made to the Director as a person so given that custody. (Amended 65 of 1986 s. 8; L.N. 80 of 2012) [cf. 1973 c. 29 s. 4(3) U.K.](3) While an order under section 13(1)(b) remains in force with respect to a minor, the minor shall continue in the care of the Director of Social Welfare notwithstanding any claim by a parent or other person. [cf. 1973 c. 29 s. 4(5) U.K.](4) Each parent or guardian of a child for the time being in the care of the Director of Social Welfare by virtue of an order under section 13(1)(b) shall give notice to the Director of any change of address of that parent or guardian and any person who without reasonable excuse fails to comply with this subsection commits an offence and is liable to a fine at level 1. [cf. 1973 c. 29 s. 4(6) U.K.](Amended E.R. 2 of 2012) 16. Additional provisions as to interim orders (1) Notwithstanding section 63 of the District Court Ordinance (Cap. 336), there shall be no appeal from an interim order under section 13(3) or (4) if the appeal relates only to a provision requiring payments to be made towards the maintenance of a minor. [cf. 1973 c. 29 s. 5(1) U.K.](2) Section 10(3) and (4) and section 20 shall apply to any such interim order as they apply to an order under section 10(1) or (2). [cf. 1973 c. 29 s. 5(2) U.K.] 17. Evidence on applications under s. 10 or 14(2) (1) If the court dealing with an application under section 10 or 14(2) requests the Director of Social Welfare to arrange for an officer of the Social Welfare Department to make to the court a report, orally or in writing, with respect to any specified matter (being a matter appearing to the court to be relevant to the application), the Director of Social Welfare shall comply with such request. (Amended L.N. 80 of 2012) [cf. 1973 c. 29 s. 6(1) U.K.](2) Any statement which is or purports to be a report in pursuance of subsection (1) shall be made, or if in writing be read aloud, before the court at a hearing of the application, and immediately after it has been so made or read aloud the court shall ask whether any party to the proceedings who is present or represented by counsel or solicitor at the hearing objects to anything contained therein; and where objection is made—(a) the court shall require the officer by whom the statement was or purported to be made to give evidence on or with respect to the matters referred to therein; and(b) any party to the proceedings may give or call evidence with respect to any matter referred to in the statement or in any evidence given by the officer. [cf. 1973 c. 29 s. 6(2) U.K.](3) The court may take account of any statement made or read aloud under subsection (2) and of any evidence given under paragraph (a) of that subsection, so far as that statement or evidence relates to the matters specified by the court under subsection (1), notwithstanding any enactment or rule of law relating to the admissibility of evidence. [cf. 1973 c. 29 s. 6(3) U.K.] 18. Powers of guardians (1) Subject to subsection (2), a guardian under this Ordinance besides being guardian of the person of the minor, shall have all the rights, powers and duties of a guardian of the minor’s estate, including in particular the right to receive and recover in the name of the guardian for the benefit of the minor property of whatever description and wherever situated which the minor is entitled to receive or recover. (Amended L.N. 80 of 2012) [cf. 1973 c. 29 s. 7(1) U.K.](2) Nothing in subsection (1) shall restrict or affect the power of the Court of First Instance to appoint a person to be, or to act as, the guardian of a minor’s estate either generally or for a particular purpose; and subsection (1) shall not apply to a guardian under this Ordinance so long as there is a guardian of the minor’s estate alone. (Amended 25 of 1998 s. 2) [cf. 1973 c. 29 s. 7(2) U.K.] 19. Person subject to maintenance order to notify change of address (1) Any person for the time being under an obligation to make payment in pursuance of any order for the payment of money under this Ordinance shall within 14 days of a change of address give notice of his or her new address to such person, if any, as may be specified in the order by sending the notice by registered post to the last known address of that person or to such address as may be notified to him or her by that person for the purposes of this section. (Amended 65 of 1986 s. 9; 69 of 1997 s. 5; L.N. 80 of 2012)(2) A person who, without reasonable excuse, contravenes subsection (1) commits an offence and is liable to a fine at level 2. (Replaced 69 of 1997 s. 5)[cf. 1971 c. 3 s. 13(2) U.K.] 20. Attachment of income to satisfy order (1AA) In this section—Amendment Ordinance (《修訂條例》) means the Attachment of Income Order (Application to Government and Miscellaneous Amendments) Ordinance 2007 (20 of 2007); (Added 20 of 2007 s. 3)attachment order (扣押令) means an order made under subsection (1);designated payee (指定受款人) means, in relation to a maintenance order, the person named in that order as the person to whom the maintenance payments are to be made;income source (入息來源) means a person by whom the income of the maintenance payer is payable and includes the Government; (Added 20 of 2007 s. 3)maintenance payer (贍養費支付人) means, in relation to a maintenance order, the person against whom that order is made;specified payee (指明受款人) means, in relation to an attachment order, the person named in that order as the person to whom an amount attached by that order is to be paid.(Added 20 of 2001 s. 2. Amended 18 of 2003 s. 3)(1) Where a maintenance order has been made against a maintenance payer and—(a) (i) a court is satisfied that the payer has without reasonable excuse failed to make any payment which the payer is required to make by the maintenance order; or (Amended L.N. 80 of 2012)(ii) a court is satisfied that there are reasonable grounds to believe that the payer will not make full and punctual payment in compliance with the maintenance order; or(iii) the payer and designated payee agree to the making of an order under this section; and(b) there is any income capable of being attached payable to the payer, the court may, in accordance with rules made under subsection (6), order the income to be attached as to the whole or part of the amount payable under the maintenance order and the amount attached to be paid to the specified payee. (Replaced 20 of 2001 s. 2)(1A) For the purpose of subsection (1)(a)(ii), in deciding whether there are reasonable grounds to believe that the maintenance payer will not make full and punctual payment in compliance with the maintenance order, the court shall take into account all the circumstances of the case, including (but not limited to)—(a) the payer’s past record and conduct in discharging his or her reasonable financial obligation towards the designated payee before any maintenance order is made;(b) the payer’s past record and conduct in connection with the making of maintenance payments to the payee pursuant to the maintenance order or an undertaking in any proceedings; and(c) the risk of the payer dissipating his or her property. (Added 20 of 2001 s. 2. Amended L.N. 80 of 2012)(2) (Repealed 20 of 2001 s. 2)(2A) The court may, at any time after a maintenance order has been made, including in the same hearing in which the maintenance order is made or varied, make an attachment order. (Added 20 of 2001 s. 2)(2B) An attachment order may be made by the court on its own motion or on the application by the maintenance payer or the designated payee or both. (Added 20 of 2001 s. 2)(3) An attachment order is an authority to an income source to make the payment in accordance with the order, and the receipt of the specified payee is a good discharge to that income source. (Replaced 20 of 2007 s. 3)(3A) Without limiting the generality of subsection (1), that subsection applies to income that is wages or salary payable to a maintenance payer by the Government, and accordingly paragraph (a) of the proviso to section 23(1) of the Crown Proceedings Ordinance (Cap. 300) is not to be construed as precluding the court from making an attachment order in respect of such wages or salary. (Added 20 of 2007 s. 3)(4) Without limiting the generality of subsection (1), that subsection applies to income that is wages payable to a maintenance payer by a person other than the Government, and accordingly section 66 of the Employment Ordinance (Cap. 57) is not to be construed as precluding the court from making an attachment order in respect of such wages. (Replaced 20 of 2007 s. 3)(5) Where—(a) pursuant to an attachment order, an employer is required to make a deduction from the wages of an employee in any wage period; and (Amended L.N. 80 of 2012)(b) that deduction, together with any deduction authorized to be made under section 32 of the Employment Ordinance (Cap. 57) by the employer from the employee’s wages in the same wage period would in total exceed the whole of the wages payable to the employee in respect of that wage period, then the amount liable to be deducted by the employer pursuant to the attachment order shall be treated as being reduced by such an amount that the total of all deductions made by the employer does not exceed the whole of the wages payable to the employee in respect of the wage period.(6) The Chief Justice may make such rules of court as the Chief Justice considers necessary or expedient for the purpose of giving effect to subsection (1), and rules made under this subsection may in particular provide for— (Amended L.N. 80 of 2012)(a) the matters to be contained in any application for an attachment order, and the manner of filing and service of such an application;(b) compliance with an attachment order;(c) the obligations on the part of the income source; (Replaced 20 of 2007 s. 3)(d) the obligations of the maintenance payer when an attachment order is in force or in the event of an attachment order ceasing to have effect for any reason;(e) the recovery from the maintenance payer of the clerical and administrative costs incurred in complying with an attachment order;(f) the variation or discharge of an attachment order;(g) the enforcement of an attachment order.(6A) Rules made under subsection (6) may empower the court to dispense with or relax any procedure or abridge any time limit specified in the rules if the court is satisfied that it is fair and reasonable to do so in the circumstances of the case. (Added 20 of 2001 s. 2)(7) Rules made under subsection (6) may provide that the contravention of any rule shall constitute an offence punishable by a fine at level 2 and by imprisonment for 1 month.(8) The Chief Justice may specify the form of any document which is to be or may be filed in proceedings under subsection (1).(9) Any attachment order—(a) made by the court before the commencement date* of the Amendment Ordinance in respect of the wages or salary payable to a maintenance payer by the Government; and(b) which has not been discharged or declared invalid by the court as at that commencement date, has effect from that commencement date as if it were made under subsection (1) as read with subsection (3A). (Added 20 of 2007 s. 3)(10) An application—(a) for an attachment order in respect of the wages or salary payable to a maintenance payer by the Government;(b) that is pending immediately before the commencement date of the Amendment Ordinance; and(c) in which an attachment order has not been made as at that commencement date, is to be determined in accordance with this section as amended by the Amendment Ordinance. (Added 20 of 2007 s. 3)(Replaced 69 of 1997 s. 6)Editorial Note:* Commencement date: 23 November 2007. 20A. Interest on arrears of maintenance (1) In this section and section 20B—*commencement date (生效日期) means the date on which the Interest and Surcharge on Arrears of Maintenance Ordinance 2003 (18 of 2003) comes into operation;judgment creditor (判定債權人) means a person entitled to enforce a maintenance order;judgment debtor (判定債務人) means a person liable under a maintenance order.(2) Where a maintenance order has been made against a judgment debtor, and the judgment debtor fails to make full and punctual payment in compliance with the maintenance order, the judgment creditor is entitled to interest in respect of arrears of maintenance which accrue on or after the commencement date.(3) For the purposes of subsection (2)—(a) the arrears in respect of each periodical payment, secured periodical payment or payment of a lump sum, as the case may be, under a maintenance order shall be treated as a judgment debt for the purposes of section 50 of the District Court Ordinance (Cap. 336);(b) the interest under subsection (2) shall be calculated in accordance with that section 50; and(c) for the purposes of that section 50, the date on which payment is due as specified by the maintenance order shall be treated as the date of the judgment.(4) The judgment debtor is liable to pay the interest under subsection (2).(5) If any payment under a maintenance order is not paid and interest in respect of the arrears has accrued under subsection (2), and subsequently the judgment debtor makes payment, the payment is deemed to be made in the following order in or towards the discharge of—(a) interest accrued under subsection (2);(b) surcharge payable under section 20B;(c) if there are any proceedings instituted for enforcing the maintenance order, the costs ordered by the court to be paid under those proceedings;(d) any sums from time to time falling due under the maintenance order, with the sums discharged in the reversed chronological sequence of the dates on which payment is due (that is, the most recent arrears will be discharged first);(e) if the court makes an order in any proceedings instituted for enforcing the maintenance order, the amount of the maintenance in arrears, whether in one amount or by instalments, payable by the judgment debtor under the order.(6) A judgment debtor who considers that he or she has reasonable grounds not to pay the interest under subsection (2) may, within a reasonable time after having knowledge of the requirement to pay, apply by summons to the court not to pay the interest, and shall set out the grounds in the application. (Amended L.N. 80 of 2012)(7) If an application is made under subsection (6), in deciding whether to require the judgment debtor to pay interest and, if so, the amount of interest, the court shall take into account all the circumstances of the case, including (but not limited to) the following—(a) whether the judgment debtor has a reasonable excuse for his or her failure to comply with the maintenance order; (Amended L.N. 80 of 2012)(b) whether the judgment debtor has evaded service of court documents;(c) the judgment debtor’s past record and conduct in connection with the making of maintenance payments to the judgment creditor pursuant to the maintenance order or an undertaking in any proceedings;(d) whether the judgment debtor has given the judgment creditor a reasonable explanation for his or her failure to comply with the maintenance order; and (Amended L.N.

80 of 2012)(e) the judgment debtor’s ability to pay.(8) A judgment debtor who is aggrieved by a requirement under subsection (7) to pay interest may appeal to the Court of Appeal against the decision under section 63 of the District Court Ordinance (Cap. 336).(Added 18 of 2003 s. 4)Editorial Note:* Commencement date : 1 May 2005. 20B. Surcharge on arrears of maintenance (1) Where a maintenance order has been made against a judgment debtor, and the judgment debtor, without reasonable excuse, repeatedly fails to make full and punctual payment in compliance with the maintenance order, the court may, on application made by the judgment creditor, make an order requiring the judgment debtor to pay to the judgment creditor a surcharge in respect of the total arrears of maintenance which accrue on or after the commencement date.(2) The application for a surcharge under subsection (1) may be made—(a) in proceedings instituted for enforcing the maintenance order; or(b) in a manner described in subsections (3), (4), (5), (6), (7), (8) and (9).(3) For the purposes of subsection (2)(b), the application for a surcharge shall be made by a summons supported by an affidavit of the judgment creditor stating—(a) the name of the judgment creditor and the address for service of the documents relating to the application;(b) the name and the address for service or last known address of the judgment debtor;(c) the particulars of the maintenance order;(d) the total arrears of maintenance due and unpaid and the date on which the arrears first accrued;(e) a request for an order requiring the judgment debtor to pay surcharge at a rate to be decided by the court under subsection (11);(f) a request for fixing a date, time and place for the hearing of the application;(g) a request for an order requiring the judgment debtor to pay to the judgment creditor the surcharge claimed if the judgment debtor does not appear at the hearing.(4) On receipt of the summons and affidavit, the court shall fix a date, time and place for the hearing of the application.(5) The judgment creditor shall serve a sealed copy of the summons and a copy of the affidavit, together with a notice of the hearing, on the judgment debtor.(6) Without prejudice to any enactment relating to the service of documents and save as is otherwise expressly provided, the summons, affidavit and notice may—(a) be personally served on the judgment debtor; or(b) be sent—(i) if the judgment debtor is represented, by post to the solicitor acting for that judgment debtor, or by leaving the same with the solicitor; or(ii) if the judgment debtor is unrepresented, by post to the address for service given by that judgment debtor or that judgment debtor’s last known address, or by leaving the same at the address for service or the last known address of that judgment debtor; or (Amended L.N. 80 of 2012)(c) be served in such other manner as the court directs.(7) If the judgment debtor fails to appear at the hearing of the application on the date fixed under subsection (4), then—(a) if the court is satisfied that the summons, affidavit and notice have been duly served on the judgment debtor, it may proceed to hear the application and may make an order requiring the judgment debtor to pay a surcharge to the judgment creditor;(b) if the court is not satisfied that the summons, affidavit and notice have been duly served on the judgment debtor, it may adjourn the hearing to a date, time and place as it thinks fit.(8) The judgment creditor shall serve a notice of the adjourned hearing on the judgment debtor.(9) If the judgment debtor fails to appear at the adjourned hearing on the date fixed under subsection (7)(b), the court may proceed to hear the application and may make an order requiring the judgment debtor to pay a surcharge to the judgment creditor.(10) If the judgment debtor, within a reasonable time after having knowledge of the order made under subsection (7)(a) or (9), applies by summons to vary or set aside the order, the court may, if it is satisfied that there is reasonable excuse for the judgment debtor’s failure to—(a) appear at the hearing; and(b) make full and punctual payment in compliance with the maintenance order, vary or set aside the order on such terms as it thinks fit.(11) The amount of surcharge payable by the judgment debtor under subsection (1) shall not exceed 100% of the total arrears of maintenance calculated from the date on which the arrears first accrued to the date of payment of the surcharge.(12) If the court makes an order requiring the judgment debtor to pay a surcharge, it shall specify in the order the amount of surcharge payable by the judgment debtor and the date of payment.(13) A surcharge payable under this section is recoverable as a civil debt due to the judgment creditor by the judgment debtor. An action under this subsection may be brought in the District Court even though the amount to be recovered otherwise exceeds the limit of jurisdiction of the District Court.(14) A judgment debtor who is aggrieved by an order to pay a surcharge may appeal to the Court of Appeal against the order under section 63 of the District Court Ordinance (Cap. 336).(Added 18 of 2003 s. 4) Part 5 Illegitimate Children 21. Application to illegitimate children For the purposes of sections 5, 6, 7, 8D and 11, a person who is the natural father of a child who is illegitimate shall not be treated as the father of the minor unless— (Amended 1 of 2012 s. 10)(a) he is entitled to the custody of the minor by virtue of an order in force under section 10(1); or(b) he enjoys any rights or authority with respect to the minor by virtue of an order in force under section 3(1)(d),but any appointment of a guardian made by the natural father of an illegitimate child under section 6(1) shall be of no effect unless the appointor is entitled to the custody of the minor as under paragraph (a), or to enjoy any rights or authority with respect to the minor as under paragraph (b), immediately before his death.(Replaced 17 of 1993 s. 19) Part 6 Jurisdiction, Procedure and Appeals 22. (Repealed 32 of 1988 s. 2) 23. Procedure in District Court Except as otherwise expressly provided in this Ordinance, Part 4 of the District Court Ordinance (Cap. 336) shall apply to every proceeding before, and every order by, the District Court under this Ordinance, and— (Amended 69 of 1997 s. 7)(a) the application may be heard and determined otherwise than in open court;(b) where the District Court considers that the matter is one which could more conveniently be dealt with by the Court of First Instance, the District Court may refuse to make an order and in that case, without prejudice to the general right of appeal conferred by Part 4 of the District Court Ordinance (Cap. 336), no appeal shall lie from the decision of the District Court; (Amended 25 of 1998 s. 2)(c) an order for the payment of money shall be enforceable in like manner as an order for the payment of a civil debt.(Amended E.R. 1 of 2013) 24. Removal to Court of First Instance Where any application has been made under this Ordinance to the District Court, the Court of First Instance shall, at the instance of any party to the application, order the application to be removed to the Court of First Instance and there proceeded with on such terms as to costs as it thinks proper.(Amended 25 of 1998 s. 2)[cf. 1971 c. 3 s. 16(1) U.K.] 25. Saving for powers of Court of First Instance Nothing in this Ordinance shall restrict or affect the jurisdiction of the Court of First Instance to appoint or remove guardians or otherwise in respect of minors.(Amended 25 of 1998 s. 2)[cf. 1971 c. 3 s. 17(1) U.K.] 26. Jurisdiction over persons not domiciled in Hong Kong The jurisdiction conferred on any court by this Ordinance shall be exercisable notwithstanding that any party to the proceedings is not domiciled in Hong Kong.[cf. 1971 c. 3 s. 17(2) U.K.] 27. Transitional The amendments made to section 19 of this Ordinance by section 5 of the Marriage and Children (Miscellaneous Amendments) Ordinance 1997 (69 of 1997) (the amending Ordinance) do not apply in relation to orders made before the commencement of the amending Ordinance, and the provisions of this Ordinance in force immediately before that commencement continue to apply in relation to those orders as if the amending Ordinance had not been enacted.(Added 69 of 1997 s. 8)