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THE LAW REFORM COMMISSION OF HONG KONG - page 158 / 360

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6.28The sub-committee use the term “semi-automatic” to mean that the unmarried father can obtain parental rights and responsibility by taking some positive step, such as signing the birth register, or entering into a parental responsibility agreement.  We recommend that an unmarried father should be capable of acquiring parental rights and responsibilities by signing the birth register.  This should be included in the list in the proposed legislation which delineates the acquisition of parental responsibility.698  We do not recommend the automatic acquisition of parental responsibility or rights by unmarried fathers.

Parental responsibility agreements

6.29A parental responsibility agreement signed by unmarried parents ensure that the father can continue to exercise parental responsibility in the event of the mother’s death.  He would then become a guardian automatically without having to be appointed as testamentary guardian by the mother.  We recommend that unmarried parents should be encouraged to sign parental responsibility agreements to ensure the best interests of their child.

6.30Where an unmarried father has acquired parental responsibility and rights by signing the birth register or a parental responsibility agreement, but there is no continuing relationship between the parents, the unmarried mother should be encouraged to appoint a testamentary guardian who will act to take care of the child in the event of the mother’s death.699  We recommend that unmarried mothers should be encouraged to appoint a testamentary guardian for their children.

Permanency of parental responsibility

6.31Notwithstanding separation or divorce, each parent continues to have parental responsibility under the Children Act 1989 even if a residence order has been made in favour of one of them.700  There is no provision for parental responsibility to be removed.  The concept of custody is abolished.  Instead, the court makes an order determining the child’s residence and, if necessary, a specific issues order.701  The law recognised that it was in the best interests of children that their parents continue to exercise parental responsibility after divorce.  

Parent acting independently

6.32The Children Act 1989 provides that where more than one person has parental responsibility, each of them may act independently in meeting that responsibility, without the need to consult the other except where statute expressly requires the consent of more than one person.702

6.33It may seem contradictory to have a concept of parental responsibility continuing after divorce together with a provision that each parent can act

698 See list infra.

699 Section 4(1)(b).

700 Section 2(6).

701 See chapter 3 supra.

702 Section 2(7).  See also section 13(1) and (3).

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