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Court appointment

6.54Section 7 of the Guardianship of Minors Ordinance provides for the court to appoint a guardian if the child has no parent, no guardian and no other person having parental rights with respect to him.711  In England, section 5(1) of the Children Act 1989 provides that any individual who wishes to be a guardian may apply to the court to be appointed if the child has no parent with parental responsibility for him or a residence order had been made in favour of the parent who has now died.712  It is consistent with the reforms proposed to adopt a provision on the lines of section 5(1) of the Children Act 1989.

6.55We recommend that section 7 of the Guardianship of Minors Ordinance be repealed and a similar provision to section 5(1) of the Children Act 1989, with regard to the appointment of a guardian, be enacted.

When appointment of guardian takes effect

6.56In England, guardians appointed by the parent or the court have parental responsibility under the Children Act 1989.713  The Children (Scotland) Act 1995 has a similar provision.714  Section 5(8) of the Children Act 1989 provided that the testamentary guardian only has parental responsibility after the death of the surviving parent,715 unless the deceased parent had a residence order in his favour, or was the only parent with parental responsibility.716  

Disadvantages of English provision

6.57We identified some difficulty with this provision, as the testamentary guardian could not act if the deceased parent before his death had the child exclusively living with him but had not applied to court for a residence order.  The parties may have had an informal agreement, or signed a mediation agreement which was not converted into a consent order.  Limiting the care of a child to the surviving parent forces the testamentary guardian to go to court.  Yet a surviving parent may have been irresponsible towards the child.

6.58We noted the disadvantages of the English provision for these practical reasons.717  The purpose of appointing a guardian was for the guardian to take office after the death of the parent making the appointment.  It was thought futile for a parent to appoint a testamentary guardian if that guardian could only take office after the death of the surviving parent.  The Scottish Law Commission felt that the appointed guardian should be allowed to act after the death of the appointing parent,

711 This would be a reference to an unmarried father who had obtained an order under section 3 granting him parental rights or authority.

712 For full text see Annex 1 infra.

713 Section 5(6).

714 Section 7(5).

715 See discussion on this provision in chapter 3 supra.

716 Section 5(7)(b).  The situation of one parent having parental responsibility would arise where an unmarried mother had not signed a parental responsibility agreement with the father, or the court had not ordered the father to have parental responsibility.  See also chapter 3 supra.  A dispute between the surviving parent and the guardian can be resolved by an application under section 8.  See infra.

717 The Scottish Law Commission also took this view.  See chapter 3 supra.

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