parent or to the exclusion of the surviving parent.722
6.64The surviving parent does not have the right to take the initiative to go to court under this section. We cannot find any circumstances to justify barring the surviving parent from seeking a remedy from the court if he objects to the testamentary guardian acting. In those circumstances, the court will decide the matter, by applying the best interests principle.
6.65We recommend that the right to veto of the surviving parent in section 6(2) of the Guardianship of Minors Ordinance (Cap 13) should be removed. Then, either the surviving parent or guardian could apply to a court under section 6(3) if there is a dispute between them on the best interests of the child.
Removal or replacement of guardian
6.66Section 8 of the Guardianship of Minors Ordinance provides that the High Court may remove or replace a testamentary guardian or any guardian appointed or acting under the ordinance, if it is satisfied that it is for the welfare of the child. Section 6(7) of the Children Act 1989 Act provides that the child, or any person with parental responsibility, or the court itself, may apply to terminate the appointment of a guardian. We considered whether it was necessary to adopt a provision on the lines of section 6(7) to be consistent with other reform proposals. We recommend that section 8 of the Guardianship of Minors Ordinance should be retained, but that it should be amended to give similar powers to the District Court.
Removal of surviving parent as guardian
6.67If the court, under section 6(3)(b)(ii) of the Guardianship of Minors Ordinance, appoints the testamentary guardian as sole guardian, thus removing the surviving parent as a guardian, section 11 gives it power to make orders concerning custody, maintenance, and access by the surviving parent. The implications of making the testamentary guardian a sole guardian are the cessation of the surviving parent’s rights except for access and the duty to maintain the child.
6.68Whether this removes his rights as the natural guardian of his child is unclear as there has been no specific provision in Hong Kong clarifying that the rights of a father as natural guardian have been abolished.723 Where the mother is the surviving parent she is not a natural guardian. It should be noted that a surviving parent is not entitled as of right to the custody or the guardianship of the child if the court has previously made an order that the surviving parent was unfit to have custody.724 This order can be included in the decree of divorce or judicial separation.
6.69In England, a surviving parent retains his parental responsibility even if a testamentary guardian is also acting. There is no provision in the Children Act 1989 depriving a parent of his parental responsibility. However, the court can make
722 Section 6(3)(b).
723 See recommendation supra on its abolition.
724 Section 19(4) of the Matrimonial Proceedings and Property Ordinance (Cap 192). The court has power under section 19(3) to declare that a parent is unfit to have custody.