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THE LAW REFORM COMMISSION OF HONG KONG - page 156 / 360

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Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent has in relation to the child and his property”. 688  We recommend that the concept of parental responsibility is more appropriate for the best interests of a child than guardianship, except that the concept of guardianship should be retained to deal with the responsibilities for a child by a third party after the death of a parent.  

Language

6.19Unlike the English provision, sections 1 and 2 of the Children (Scotland) Act 1995 makes separate provision for parental responsibilities and parental rights respectively and explains them in some detail.689  The focus on the language of rights and authority in the existing Hong Kong legislation and the common law is not appropriate.  However, we suggest that it is helpful to retain a separate definition of parental rights as such a definition is a guide to parents, children and the court of the parameters of their rights and powers. We recommend the adoption of a provision on the lines of sections 1 and 2 of the Children (Scotland) Act 1995 as two separate sections, one on rights and one on responsibilities.

6.20However, we should make clear that we do not propose that the different ages in the Children (Scotland) Act 1995 should be adopted.  We recommend that the age of eighteen should apply to all the situations referred to in sections 1 and 2 of the Children (Scotland) Act 1995.690

Father as natural guardian

6.21At common law a father was the natural guardian of his legitimate child.  Even though the mother has equal rights and authority by section 3(1)(b) of the Guardianship of Minors Ordinance, the common law right of the father has never been abolished in Hong Kong.691  The language of section 3(1)(b) of the Guardianship of Minors Ordinance is no longer appropriate since the enactment of the Sex Discrimination Ordinance (Cap 480).  Section 2(4) of the Children Act 1989 provided that “the rule of law that a father is the natural guardian of his legitimate child is abolished”.

6.22We recommend that the common law right of the father to be natural guardian of his legitimate child should be abolished, on the lines of section 2(4) of the English Children Act 1989, as it is no longer appropriate in Hong Kong.  Thus, we also recommend the repeal of section 3(1)(b) of the Guardianship of Minors Ordinance.

Married parents

6.23Section 2(1) of the Children Act 1989 provides that where a child’s mother and father were married to each other at the time of his birth, they shall each have parental responsibility for their child.  Some concern was expressed by members

688 Section 3 of the Children Act 1989.

689 See chapter 4 supra for full text.

690 See Annex 1 infra.

691 However, it is noted that the court can appoint a testamentary guardian to be the sole guardian of a child, which removes the surviving parent as guardian.  The implications of this are not spelt out in the Guardianship of Minors Ordinance.  See infra.

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