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THE LAW REFORM COMMISSION OF HONG KONG - page 111 / 360

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Age

4.7The age at which legal parental responsibilities cease depends on the nature of those responsibilities.  The Commission suggested that “it is not unrealistic to talk of a parental responsibility to safeguard and promote, so far as is practicable, the health, development and welfare of a child of 16 or 17 who is living independently”.  Other children might still be undergoing education or training after the age of 16 or 17 but still are financially dependent on their parents.515

4.8The Commission explained its justification for different parental responsibilities for different ages thus:

“We recognise that it is less tidy to have different parental responsibilities ending at different ages than to have a uniform age.  Nonetheless we think that the reality of family life is that certain parental responsibilities of a supportive, protective or advisory nature continue after the child attains the age when he or she has considerable legal capacity and freedom of action ... Recognising that certain parental responsibilities continue after the age of 16 does not require an extension of parental rights in relation to the residence and upbringing of a young person to continue beyond that age ....”516

4.9Most of the Commission’s recommendations on age were incorporated into section 1(2)(a) and (b) of the Act.  Section 1(2) in fact provides that the responsibilities under section 1(1)(a), (b)(i), (c), (d)517 should last until 16 and only the responsibility for providing guidance to the child should last until 18 years.  Parental rights are only applicable to a child under 16 years, including the right to give guidance.  This differs from the recommendations made in the Commission’s report, but there is no explanation given in the Bill’s explanatory memorandum for this divergence.   

Child’s legal representative

4.10The responsibility to act as the child’s legal representative and administer the child’s property (provided that it was appropriate and in the child’s best interests) includes giving legally effective consent, entering into important contracts, and raising or defending court actions, where the child is not legally capable of acting on his or her own behalf.  A young person acquires full capacity to enter into legal transactions at the age of 16, so this should be the appropriate cut off point.518

4.11The Commission recommended that the right of legal representation should be defined as “the right to administer the child’s property and to act, or give consent, on behalf of the child in any transaction having legal effect where the child is incapable of acting or consenting on his or her own behalf”.  This was incorporated

515 Ibid at 2.9.

516Ibid at 2.12.

517 See supra.

518Ibid at 2.11.

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