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THE LAW REFORM COMMISSION OF HONG KONG - page 167 / 360

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a residence order in favour of the guardian rather than the surviving parent.  The English section 8 orders, which we recommend later, will ensure that the best interests of a child are protected even if circumscribing the surviving parent’s rights and responsibilities almost results to a total restriction.

6.70We recommend that the right to remove the surviving parent as guardian under section 6 of the Guardianship of Minors Ordinance should be repealed.  It would be inconsistent with the adoption of parental responsibility and the confinement of the concept of guardianship to third parties on the death of a parent to retain power to remove a surviving parent as guardian of his child.  

Unmarried father as surviving parent

6.71The implications of the grant of the status of parental responsibility as discussed earlier725 would be that the unmarried father could be treated as the surviving parent under the Guardianship of Minors Ordinance and also could appoint a guardian to act for the child in the event of his own death.  However, for the purposes of clarification, we recommend that a provision be inserted that once the natural father is granted parental rights or responsibility, whether by fulfilling the requirements for semi-automatic acquisition, or by a court order,726 then he can be deemed to be the surviving parent under the Ordinance.727

Guardian of the estate

6.72Section 18 of the Guardianship of Minors Ordinance (Cap 13) provides that a guardian of the person of the minor shall also be guardian of his estate except in those circumstances specified in subsection (2).728  The English Law Commission recommended that trusteeship should fill any gaps in the provisions for guardian of the estate.729  Section 5(11) of the Children Act 1989  preserved the power to appoint a guardian of the estate.  Rules of court gave the right to exercise the power to the Official Solicitor.  The Scottish Law Commission and the Children (Scotland) Act 1995 made detailed provisions as to the administration of a child’s estate which do not seem relevant to Hong Kong.

6.73The Official Solicitor Ordinance (Cap 416) sets out the jurisdiction of the Official Solicitor with regard to property matters.  We note the power in Order 80 rule 13 of the English Rules of the Supreme Court, which provides that only the Official Solicitor can be appointed as guardian of the estate of a child.  There is no equivalent power in Hong Kong.  However this does not seem to have hampered the Official Solicitor in the exercise of his duty.  We welcome views as to whether the Official Solicitor has sufficient powers to act as guardian of the estate.  We invite submissions as to how the Hong Kong provisions work in practice and whether any reform is necessary.

725 See supra in this chapter and also in chapter 2.

726Section 3(1)(d) of the Guardianship of Minors Ordinance as amended.

727 He also could be treated as a guardian if the present law is retained though we have earlier recommended that the concept of guardianship be reserved for third parties appointed to act on death, and not to surviving parents.

728 A guardian of the estate only may have been appointed by the High Court.  

729 English Law Commission, Family Law, Review of Child Law; Guardianship and Custody,  (1988: Law Com No 172) paragraph 2.24.

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