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THE LAW REFORM COMMISSION OF HONG KONG - page 109 / 360

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(c)if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis, and

(d)to act as the child’s legal representative.508

4.3A child or a person on his behalf may sue for breach of those responsibilities.509  Section 1(4) provides that these new parental responsibilities supersede common law duties but not statutory duties.  Examples of such statutory duties are those relating to financial support under the Family Law (Scotland) Act 1985, the Child Support Act 1991 and those relating to education under the Education (Scotland) Act 1980.510

Objectives

4.4The Scottish Law Commission had suggested that the objectives of a statutory statement of parental responsibilities were likely to be:

(a)that it would make explicit what was already implicit in the law,

(b)that it would counteract any impression that a parent had rights but no responsibilities, and

(c)that it would enable the law to make it clear that parental rights were not absolute or unqualified, but were conferred in order to enable parents to meet their responsibilities.511

4.5There was very strong majority support for a clear statutory statement, despite the fact that the common law already recognises that there are general parental responsibilities.512  Article 5 of the United Nations Convention on the Rights of the Child refers to:

“the responsibilities ... of parents ... to provide, in a manner consistent with the evolving capacities of the child appropriate direction and guidance in the exercise by the child of the rights recognised in the present Convention.”

4.6Article 5 concentrates on the child’s rights under the Convention.  The Commission felt that since this principle was already recognised in Scottish law, the legislation should incorporate this principle:

“Appropriate direction and guidance might relate not only to the exercise by the child of his or her rights (such as his or her contractual rights under the Age of Legal Capacity (Scotland) Act 1991) but also, and importantly, to the child’s responsibilities and indeed generally to

508 The Commission had recommended that this provision gave the parent capacity to administer, in the interests of the child, any property belonging to the child.  See 2.6.

509 Section 1(3).

510Ibid at 2.13.

511Scottish Law Commission, Report on Family Law (1992: No. 135) at 2.1.

512 Ibid at 2.2.

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