Terms of reference
1.On 21 April 1995, under powers granted by the Governor-in-Council on the 15 January 1980, the Attorney General and the Chief Justice referred the topic of guardianship and custody to the Law Reform Commission in the following terms:
“to consider the law relating to guardianship and custody of children, and to recommend such changes as may be thought appropriate”.
2. This Consultation Paper is one of a number of references in the area of family law dealt with by the Commission. The Commission has already produced reports on illegitimacy1 and the grounds for divorce and time limits for divorce.2 Both those reports have been implemented in legislation by the Parent and Child Ordinance (Cap 429) and the Matrimonial Causes (Amendment) Ordinance (Cap 179) (Ord. No. 29 of 1995) respectively.
Scope of the reference
3.Hong Kong’s law on guardianship and custody is to be found in a number of ordinances. Principal among these is the Guardianship of Minors Ordinance (Cap 13). Private law aspects of guardianship and custody are also dealt with in the Matrimonial Causes Ordinance (Cap 179), the Matrimonial Proceedings and Property Ordinance (Cap 192) and the Separation and Maintenance Orders Ordinance (Cap 16).
4.One of the catalysts for review of the law relating to guardianship and custody was the enactment in 1989 of the Children Act in England, which incorporated major reforms. In particular, there was concern about the restriction in section 10 of the Guardianship of Minors Ordinance (Cap 13), which limited an application for custody or access to parents or the Director of Social Welfare. Thus, grandparents or other relatives actually looking after a child were unable to make application under this Ordinance and instead had to apply for wardship in the Court of First Instance of the High Court.
5.Guardianship can be defined as all the rights that a parent has towards his or her child. When a parent dies, another person may be appointed guardian by a will, known as a testamentary guardian. There is much confusion as to the meaning and scope of the term “custody”. It can be confined to the physical custody and day to day care and control of a child after a divorce, or in broader terms to mean something akin to guardianship, whereby the parent without care and control retains a right to be involved, to different degrees, in the upbringing of a child. Access to see his child has traditionally been seen as the main right given to a non-custodial parent. In rare situations this can result in the child spending so much residential time with both parents that it amounts to shared physical custody, an option increasingly
1 Topic 28, December 1991.
2 Topic 29, November 1992.