B. Appointment of a guardian by the Court
The Protection of Children and Juveniles Ordinance (PCJO), Cap. 213 is a key Ordinance in the protection of children and juveniles. It is a close companion to the Juvenile Offenders Ordinance. The words “child” , “young person” and “juvenile court” have the same meaning in both ordinances. A child is a person under 14 years of age. A young person is a person who has attained 14 years of age but is under 16 years of age. A “juvenile” for the purposes of the PCJO is a person of 14 years of age or upwards but under the age of 18 years. A juvenile court for the purposes of the PCJO is a juvenile court according to the Juvenile Offenders Ordinance.
Under section 34 of the PCJO , a juvenile court, either on its own volition or upon the application of the Director of Social Welfare (“the Director”), which is satisfied that any person of or above the age of seven years brought before the court, or any other person under the age of seven years, is a child or juvenile in need of care or protection, may appoint the Director to be the legal guardian of such child or juvenile. Alternatively, the court may commit the care to any person, whether a relative or not, who is willing to undertake the care of the child, or to any institution which is willing to do so. The court can also order parents or guardians to enter into a recognizance to exercise proper care and guardianship or place the person for a specified period, not exceeding three years, under the supervision of a person appointed for the purpose by the court.
The PCJO enables police officers and social workers to take action to protect a child or juvenile in need of care or protection. Police officers and social workers authorised by the Director have the responsibility to intervene to protect a child or juvenile in need of care or protection. According to section 34(2) of the PJCO , a child or juvenile in need of care or protection is a child or juvenile who:
- has been or is being assaulted, ill-treated, neglected or sexually abused;
- or whose health, development or welfare has been or is being neglected or avoidably impaired; or
- whose health, development or welfare appears likely to be neglected or avoidably impaired; or
- who is beyond control, to the extent that harm may be caused to him or others; and
- who requires care and protection.
In those situations a care or protection order may be sought from the Juvenile Court. In deciding whether or not to apply for a care or protection order all the circumstances of the child, his or her family, and any possible adverse long term effects on the child or juvenile, must be considered.
Article 9 of the Convention requires States Parties to ensure that children are not separated from their parents except when the competent authorities decide that separation is necessary for the best interests of the child, for example in cases of neglect or abuse by the parents.
Article 3 of the Convention provides “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Not every suspected child abuse or child neglect case will therefore warrant an application for a Care or Protection Order under the PCJO . The possible adverse effects of care and protection proceedings make it realistic for the Director and the police to solicit the co-operation of parents and careers before resorting to action to remove a child from the family.