2.29However section 15(2) of Guardianship of Minor Ordinance provides that:
“In relation to an order under section 13(1)(b)88 or to an order under section 13(2) requiring payment to be made to the Director of Social Welfare, sections 10(3), (4)89, 19 90and 2091 shall apply as if the order under section 13(1)(b) were an order under section 10 giving custody of the minor to a person other than one of the parents (and the Director of Social Welfare were lawfully given that custody by the order), and any order for payment to the Director were an order under section 10(2) requiring payment to be made to him as a person so given that custody.”
2.30The explanatory memorandum to the Guardianship of Minors (Amendment) Ordinance 1986 (Ord. No. 65 of 1986) merely stated that the amendment provided “that an order for custody and maintenance in respect of a minor may be made by the High Court and the District Court on the application of the Director of Social Welfare”. Section 15(2) supports the interpretation that the Director can be awarded custody, except that the term preferred seems to be “care order” under section 13(1)(b).
Appointment of guardians
2.31Part III of the Guardianship of Minors Ordinance (Cap 13) deals with the appointment, removal, and power of guardians. Section 5 provides that the surviving parent shall be the child’s guardian, either alone or with the guardian appointed by the deceased parent. Where no guardian has been so appointed, or the person appointed as guardian refuses to act or has died, then the court may appoint a guardian to act with the surviving parent.92
2.32Section 6 allows a parent to appoint a guardian by deed or will. Section 2 of the Age of Majority (Related Provisions) Ordinance (Cap 410) provides that a reference in a deed or will, made after the Ordinance took effect, to a minor or infant shall be construed as a person under 18 years. Unless the surviving parent objects to the guardian so acting, the surviving parent and the testamentary guardian act together as joint guardians.93 In those circumstances an order for payment of remuneration “for his services as guardian” can be made under section 6(6).
Removal of surviving parent as guardian
88 An order committing the care to the Director.
89 The effect of section 10(3)is that an order in favour of a non parent remains in existence, while an order in favour of a parent ceases to exist if the parents live together for more than three months. Section 10(4) grants powers to discharge or vary an order of custody, access or maintenance.
90 This provides for a person liable to pay maintenance informing a named person of a change in address.
91 This deals with attachment of pension or income to satisfy a maintenance order.
92 Section 5(a) and (b).
93 Section 6(2) of Cap 13.