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THE LAW REFORM COMMISSION OF HONG KONG - page 159 / 360

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independently.  There may be concern that this may lead to disputes between parents as they will not consult each other before exercising this right.  We are of the view that parents should consult each other on major decisions concerning the child.  We recommend the adoption of a provision on the lines of section 2(7) of the Children Act 1989, but restricted to the day-to-day care and best interests of the child.  Thus, a parent with a residence order in his favour could act independently for the day-to-day issues concerning the child and the other parent could do likewise when he is exercising contact with the child.

Scope of parental responsibility

6.34Even though the English legislation does not give a power of veto or impose a duty to consult or notify the other parent when major decisions are being made for the child, the courts have tried to balance the best interests of the child with the autonomy of a parent acting independently.  In Re G (a minor) (Parental Responsibility: Education),703 Glidewell LJ said that:

“the mother having parental responsibility was entitled to and indeed ought to have been consulted about the important step of taking her child away from day school ... and sending him to boarding school.  It is an important step in any child’s life and she ought to have been consulted”.  

There had been no prior order so she could not claim that the father was acting incompatibly with a prior order.

6.35To balance the adoption of section 2(7) of the Children Act 1989, and to reduce the number of disputes between parents after separation or divorce, we also recommend that one parent should consult the other when it comes to making major decisions for the child.  It is preferable if major decisions could be made jointly by the parents.  However, day-to-day decisions do not need notification to, or consent by, the other parent.

6.36Rather than giving a veto to the other parent, it would generate less friction if legislation specified those decisions where the other parent’s express consent was required, and those decisions where only notification to the other parent was required.

6.37The legislation should include the definition of a major decision and list the classes of major decisions.  There should be three lists: the first, a general list of parental responsibilities; the second, a list of major decisions requiring express consent; and the third, a list of major decisions requiring notification.

6.38We propose that the following should be included in the general list of parental responsibilities.  These are all generally accepted by legal commentators:

The duty to provide day-to-day care for the child,

703 [1994] 2 FLR 964, Court of Appeal.

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