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THE LAW REFORM COMMISSION OF HONG KONG - page 123 / 360

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Commission that “parenthood should become the primary concept. Any necessary distinctions between parents and guardians who act in loco parentis could then clearly be drawn ....”565

4.64Section 7(5) provides that a guardian will have parental rights and responsibilities566 subject to an order under section 11567 or section 86.568

Termination of guardianship

4.65The Commission suggested that:

“although a person should be free to accept or refuse the guardianship of a child, the interests of the child require that, once the guardian has unequivocally accepted office, he or she should not be able to surrender or transfer his or her responsibilities, other than by means of an appropriate court order or orders”.569

4.66Section 8(5) provides that:

“Once an appointment of a guardian has taken effect, under section 7 of this Act, then, unless the terms of the appointment provide for earlier termination, it shall terminate only by virtue of:

(a)the child concerned attaining the age of 18 years;

(b)the death of the child or the guardian; or

(c)the termination of an appointment by a court order under section 11....”

Types of orders

4.67Section 11 defines the types of orders which are available.  These differ  slightly from those to be found in section 8 of the English Children Act 1989:

(1)A “residence order” is : “an order regulating the arrangements as to:

(i) with whom; or

(ii)if with different persons alternately or periodically, with whom during what periods,

a child under the age of sixteen years is to live.”

(2)A “contact order” is : “an order regulating the arrangements for maintaining personal relations and direct contact between

565 Paragraph 2.3 of Family Law, Review of Child Law, Guardianship and Custody, (Law Com. No. 172), July 1988.

566 Section 7(5).

567 An order of the court which can deprive or modify the rights and responsibilities.

568 This provides for parental responsibilities and rights to be transferred to a local authority, the equivalent of the Social Welfare Department in Hong Kong

569Supra at 3.16

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