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THE LAW REFORM COMMISSION OF HONG KONG - page 112 / 360

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into section 15(5)(a) and (b) but the words “having legal effect.” were omitted.519

4.12The Commission’s definition of legal representation is similar to the existing definition of guardianship under the Age of Legal Capacity (Scotland) Act 1991.  This provides that:

“a parent’s guardianship is his or her right to manage the child’s property, enter into contracts on the child’s behalf, litigate on the child’s behalf, and generally to act on the child’s behalf in any legally relevant matter where the child is incapable of acting on his or her own behalf”.520

Guardianship lasts until the child is 16.

Parental rights

4.13To balance out the responsibilities, there is a provision for parental rights in section 2.  It may appear confusing to state that the parent has certain rights “in order to enable him to fulfil his parental responsibilities”.  The Commission explained that:

“Many consultees considered that the emphasis of the law in this area should be on parental responsibilities rather than parental rights and that it would fit in well with this view to emphasise that parents had parental rights in order to enable them to fulfil their parental responsibilities”.521

4.14Section 2 provides that these rights are:

“(a)to have the child living with him or otherwise to regulate the child’s residence;

(b)to control, direct or guide, in a manner appropriate to the stage of development of the child, the child’s upbringing;

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

(d)to act as the child’s legal representative.”522

The parent can sue or defend proceedings in relation to the rights.523

4.15Under the existing Scottish law, parental rights of guardianship, custody and access last until the child is 16.  The Commission recommended that the rights referred to in the new legislation should also last until the child is 16, even though some parental responsibilities may continue for longer.524

519 Ibid at 2.27.

520 As paraphrased at 2.15.

521 Ibid at 2.14.

522 The section is implementing recommendations at 2.35.

523 Section 2(4).

524 Ibid at 2.34.

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