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of the sub-committee as to whether this section excluded those parents who married after the birth of a child.  Such a child would be legitimated by the marriage of his parents under the Legitimacy Ordinance (Cap 184). We recommend the adoption of a provision on the lines of section 2(1) of the English Children Act 1989, but amended, for the removal of doubt, to include reference to parents married subsequent to the birth of the child.

Acquisition of parental responsibility by unmarried fathers

6.24It is difficult to obtain information as to what percentage of children are born outside marriage in Hong Kong.  The true number may not be known, because it may be increased by children born to unmarried illegal immigrant mothers from the Mainland, who then leave the child with the father who has right of abode in Hong Kong.  We understand that there may even be cases where children born to a father who is married to another woman are taken into the father’s home and treated as a child of the family.

6.25In Hong Kong, an unmarried father does not automatically become a guardian or obtain parental responsibility.  He can apply under section 3(1)(d) of the Guardianship of Minors Ordinance (Cap 13) for parental rights and authority.692  We recommend that the language of section 3(1)(c)(ii) and (d) of the Guardianship of Minors Ordinance (Cap 13) should be changed to reflect the new language of responsibilities rather than rights.  Thus an unmarried father would be able to apply for an order granting him parental responsibility.

Acquisition of parental responsibility and rights

6.26In England where parents are unmarried at the time of the child’s birth, only the mother has parental responsibility as of right but the father can acquire it in the following ways:693

(a)Upon taking office as a guardian of the child appointed under the Act,694

(b)by obtaining a parental responsibility order from the court,695

(c)by making a parental responsibility agreement with the mother,696 and

(d)by obtaining a residence order, in which case the court is bound to make a separate parental responsibility order.697

Semi-automatic acquisition of parental responsibility and rights

6.27The term “automatic rights and responsibility” can be used to describe the granting of status to an unmarried father by virtue of the birth of his child, without his having to take any further step.  The burden would then be on the mother to apply to court to take away or diminish the exercise of the father’s rights.  This is the law in Australia.

692See chapter 2 supra.

693 Section 2(2) of the Children Act 1989.  See chapter 3 supra.

694 Section 5(6).

695 Section 4(1)(a).

696 Section 4(1)(b).

697 Section 12(1).

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