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THE LAW REFORM COMMISSION OF HONG KONG - page 30 / 360

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types of disputes as ultimately they relate to the “upbringing” of the minor.  Section 19 of the Interpretation and General Clauses Ordinance (Cap 1) provides for a purposive interpretation:

“An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit.”

Definition of terms

Guardian

2.10 The term “guardian” is not defined, nor is “custody” or “care and control” or “access”.  “Guardianship” normally connotes the bundle of rights and duties and authority of a parent towards a child.  This includes the right to make decisions and to be consulted on decisions about the upbringing of a child, that is, on all aspects of his welfare.  Usually a guardian has the right to have custody, which means the right to physical care and control of a child.  When parents divorce or separate, the non-custodial parent may not have the child physically living with him except for access periods, but he will remain under a duty to provide maintenance for the support of the child.71

Custody

2.11Section 2 of the Matrimonial Proceedings and Property Ordinance (Cap 192) provides the only statutory definition of custody, and includes access to the child.  The term “custody” has been used to describe physical custody, that is, where the child resides on a daily basis.  In some jurisdictions legal custody refers only to physical custody, as both parents retain rights as guardians.  These rights include the right to be consulted on all matters affecting the upbringing of a child, including health, education and religious welfare.  In practice, it is accepted that the parent with physical custody must take the major responsibility for decisions on these matters.  However, he is expected to consult the other parent on major decisions affecting the child.

2.12However, in Hong Kong it seems that in practice there is confusion as to the meaning of the term “custody” and the parameters of custody and guardianship.

2.13  Custody in Hong Kong seems to be treated as equivalent to guardianship and so orders of sole custody are made with the intention that the person having physical care and control also retains all rights to make decisions on the upbringing of the child without consulting the non-custodial parent.  That parent retains rights of access and the duty to support but must apply to court if he wants to be consulted on the welfare of the child.

71 Walsh J of the Irish Supreme Court in B v B [1975] IR 54, 61 states: “a parent so deprived of custody can continue to exercise the rights of a guardian, and ... must be consulted on all matters affecting the welfare of the child which ... comprises the religious, moral, intellectual, physical and social welfare of the child”.

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