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THE LAW REFORM COMMISSION OF HONG KONG - page 162 / 360

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13) refers to the “giving up”, in whole or in part, of rights and authority to custody, upbringing or administration of property.  Section 4 is only enforceable when the parties are separated, and only when the court thinks it is for the child’s benefit.  In our view, the term “giving up” is unfortunate, and does not reflect the concept of continuing parental responsibility for a child even after separation or divorce.

6.45We recommend that a provision on the lines of the section 2(9) to (11) of the Children Act 1989706 be enacted, rather than section 3(5) of the Children (Scotland) Act 1995. The consequence of this reform is that section 4 of the Guardianship of Minors Ordinance (Cap 13) would be repealed, though we consider it would be useful to retain the last three lines of section 4(1).707

Continuing parental responsibility

6.46Section 2(6) of the Children Act 1989 provides that a person does not lose parental responsibility just because someone else acquires it, for example, a step- parent or an unmarried father.  Section 11(11) of the Children (Scotland) Act 1995 is worded differently and more realistically as it recognises that in making such an order there may be consequences for other persons with such responsibilities.  We recommend a provision on the lines of section 11(11) of the Children (Scotland) Act 1995.

Part C - Acquisition of parental responsibility by guardians

Appointment

6.47Section 6(1) of the Guardianship of Minors Ordinance (Cap 13) provides that a parent may appoint a guardian by deed or will.  In contrast, section 5(5) of the Children Act 1989 provides that parents who have parental responsibility708 may appoint guardians by a document in writing, with their signature attested by two witnesses, without the need to make a formal will or deed.  This avoids technicalities and facilitates appointment, as many people do not make a will.  We consider that a guardian should be able to be appointed by a simple process, which is not legalistic.  We therefore recommend the adoption of a similar provision to section 5(5) of the Children Act 1989.709

6.48We agreed that there must be a recognised system to enable a third party to determine that a person has acknowledged his appointment as a guardian.  Concern was expressed that a parent may appoint a person as testamentary guardian without having informed that person or obtained his consent.  This was not in the best interests of the child.  A requirement of formal consent would bring home to the guardian the seriousness of the parental responsibility that he was taking on for the child.  

706 See Annex 1 infra for text.

707 The last three lines of section 4 (1) provide “but no such agreement between husband and wife shall be enforced by any court if the court is of opinion that it will not be for the benefit of the child to give effect to it”.

708 This is under subsection 3.  Thus an unmarried father would not be able to appoint a guardian unless he had been granted parental responsibility by agreement or court order.

709 Annex 1 infra for text.

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