even if the other parent is still alive.718 Any dispute between the testamentary guardian and the surviving parent could be resolved by the court.
6.59In Hong Kong, the role of the extended family in the upbringing of children is still apparent. It may be more appropriate that a guardian should be allowed to act, even if there is a surviving parent, as already provided for in sections 5 and 6 of the Guardianship of Minors Ordinance (Cap 13). It is in the best interests of a child that the testamentary guardian should not have to wait until after the death of the surviving parent to take steps to act as guardian of the child.
Advantages of English provision
6.60As a matter of principle there are arguments in favour of adopting a provision on the lines of section 5(8) of the English Children Act 1989. Since we are already recommending joint parental responsibility, it may be suggested that it would be inconsistent to allow the deceased parent to continue to exercise parental responsibility through the testamentary guardian. It may be regarded as being akin to passing on the child like a piece of property, instead of allowing the surviving parent to take over full parental responsibility.
6.61If the testamentary guardian is unhappy with the way the best interests of the child are being cared for by the surviving parent, he could apply to court for a residence order.719 We recommend that if a parent had obtained a residence order prior to his death, then a testamentary guardian appointed by that parent should be able to act automatically as testamentary guardian on that parent’s death. If the contact parent is unhappy with this situation he can apply to court to determine the residence of the child.
6.62We also recommend that a testamentary guardian should be able to act on the death of the parent who appointed the testamentary guardian if the child was residing with that parent prior to his death. Thus the appointment of the testamentary guardian would not take immediate effect on the death of the parent but a pro-active step of obtaining the court’s permission would have to be taken by the guardian. This option is more practical and avoids the rigidity of section 5(8) of the English Children Act 1989 of depriving the testamentary guardian of his responsibilities until after the death of the surviving parent.
Veto of surviving parent
6.63There is a need for change to the right of the surviving parent to veto the testamentary guardian under section 6(2) of the Guardianship of Minors Ordinance (Cap 13).720 It seems that the appointment of a testamentary guardian has no effect if the surviving parent objects. The result of this veto is that the testamentary guardian is forced to bring the matter to the court. The court may refuse to make an order which results in the surviving parent remaining sole guardian.721 Alternatively, the court can order that the guardian act jointly with the surviving
718 See section 6(2) of the Guardianship of Minors Ordinance (Cap 13).
719 See recommendation on residence orders infra.
720 See chapter 2 supra.
721 This is under section 6(3)(a).