2.33If the parent objects to the appointment of the testamentary guardian, or if the guardian considers that the surviving parent is unfit to have custody, the guardian can apply to the court under section 6(3). The court can make an order that the guardian act as sole guardian, or jointly with the surviving parent.94 This seems to imply that the surviving parent’s guardianship rights can be removed and, given the significant consequences of such an order, it would seem desirable that the legislation should spell this out explicitly. Yet section 8, which provides for removing or replacing a guardian, only gives this power to the court where it is a guardian appointed or acting by virtue of the ordinance or a testamentary guardian. The welfare principle applies.
2.34Section 11 deals with the situation where a person has been appointed sole guardian to the exclusion of the surviving parent under section 6(3)(b)(ii). The court can order custody, presumably to the guardian, and access by the parent to the minor. The welfare principle applies in making such orders. The court can also order the parent to make periodical or lump sum payments for the child, or to transfer property. The section seems to imply that any other rights as a guardian to be consulted on any major matters affecting the upbringing of the child are removed, and the surviving parent only retains access rights. It seems unfair that in a divorce the non-custodial parent retains his rights as a guardian and can apply to court to enforce them, if denied by the custodial parent, and yet under the guardianship provisions, a sole guardian who is not one of the parents can exclude the guardianship rights of the surviving parent, except for access.
2.35The English Law Commission, in a working paper, argued that the High Court had a limited right to removal of a natural parental guardian.95 This was because, historically, in serious cases of misconduct, unfitness or inability the court could appoint another person to act in the place of the father and could restrain the father from interfering, though his rights were never completely abrogated. However, the Commission noted that there were no recent cases on these grounds.96
Surviving parent’s objections
2.36Section 6(3)(a) also provides that, if the surviving parent objects, the court can refuse to make any order “in which case the surviving parent shall remain sole guardian”. Thus, the deceased parent’s wishes are thwarted. It is unclear whether the welfare principle applies to such a determination, as section 3(1) is limited to custody or upbringing and property matters. Section 8, which refers to removal of guardians, does apply the welfare principle. If a guardian is removed because of the surviving parent’s objections, then the guardian has no right to seek access, nor can he be ordered to pay any maintenance, as section 11 is restricted to situations where the guardian is acting to the exclusion of the surviving parent.
2.37On the death of the custodial parent, the surviving parent shall not be entitled as of right to custody or the guardianship of that child if the court has under section 19(3) of the Matrimonial Proceedings and Property Ordinance (Cap 192)
94 Section 6(3)(b)(i).
95 Family Law, Review of Child Law, Guardianship, paragraph 2.19 (No 91: 1985).
96 Paragraph 2.7.