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THE LAW REFORM COMMISSION OF HONG KONG - page 161 / 360

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Notification of a major operation or long-term medical or dental treatment,

notification of a major change in schooling,

notification of bringing the child up in a particular religion,

notification of consent to marriage,

notification of moving house,

notification of removing from the jurisdiction temporarily but less than one month,

notification to the other parent if there are going to be changes in domicile or nationality, and

notification of any other major or important decisions in the life of the child.

6.41We agreed that the common law probably provided that doctors could proceed with an emergency medical operation or procedure without any parental consent.  In those situations where notification was needed for medical treatment, a short period of notice would suffice.  A reasonable period of notice would be needed for notification of consent for marriage.  The right to appoint a guardian for the child in the event of the parent’s death should not require either notification or consent.  Neither would consent or notification be required for acting as next friend in the taking or defending of proceedings.

Acting incompatibly

6.42Section 2(8) of the Children Act 1989, provides:

“The fact that a person has parental responsibility for a child shall not entitle him to act in any way which would be incompatible with any order made with respect to the child under this Act.”  

6.43Where, for example, a residence order had been granted in one parent’s favour, the other parent would be able to exercise his responsibilities to the full when he has the child with him, subject to his not acting incompatibly with that court order.  Section 2(8) asserts the primacy of a court order with respect to a child.  We recommend that a provision on the lines of section 2(8) of the Children Act 1989 should be adopted.

Delegation

6.44Section 2(9) of the Children Act 1989 provides that parents may delegate, but not transfer or surrender, parental responsibility.  Section 3(5) of the Children (Scotland) Act 1995 has a similar provision but worded slightly differently.705  In contrast, section 4 of the Guardianship of Minors Ordinance (Cap

705 See chapter 4 supra.

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