made an order that the surviving parent was unfit to have custody. This order may be included in the decree of divorce or judicial separation.
2.38 Where the minor has no parent or guardian, or a person having parental rights with respect to him, the court can appoint a third party as guardian under section 7. “Parent” is defined in section 2 as father or mother but section 21 provides that for the purpose of sections 5, 6, 7, and 11 the natural father is not to be treated as father97 unless he is entitled to custody by already having an order under section 10 in force or an order under section 3(1)(d). The natural father would have to issue proceedings first under section 3(1)(d) to seek an order for some or all of the rights and authority “that the law would allow him as father if the minor were legitimate.”
Unmarried father as surviving parent
2.39The question then arises whether the natural father, with an order of parental rights under section 3(1)(d) in his favour before the death of the mother becomes the “surviving parent” for the purposes of the Ordinance. One argument in favour of his being deemed to be the surviving parent is that section 21 provides, inter alia,
“any appointment of a guardian made by the natural father of an illegitimate child under section 6(1) shall be of no effect unless the appointer is entitled to the custody of the minor as under paragraph (a)[order of custody by an order under section 10(1)], or to enjoy any rights or authority with respect to the minor as under paragraph (b)[order under section 3(1)(d)], immediately before his death”.
2.40 If he is the “surviving parent”, then under section 5 he becomes the guardian either alone or, if the mother has not appointed a testamentary guardian, jointly with a guardian appointed by the court. If there is a dispute between the two guardians, then the court can give such directions as it thinks proper under section 9.
2.41If the natural father is deemed to be the surviving parent and he objects to the guardian appointed by deed or will by the deceased parent, then the court can order either the father or the testamentary guardian to act as sole guardian.98 The court could also make orders under section 11.
2.42For the purposes of clarification, it would assist if a provision were inserted that once the natural father is granted parental rights, then the court can deem him to be the surviving parent and thus a guardian under the Ordinance. This would be discretionary, as section 3(1)(d) provides for the granting of limited rights. Presumably a court would have discretion to order that a natural father could have access rights under section 10, or the right to be consulted on some limited matters, such as emigration, but not to be treated as a guardian or “surviving parent”. Where the court has ordered another person to act as sole guardian under section 6(3)(b)(ii),
97 It should really say “parent” as those sections only refer to parent.
98 Section 6(3)(a) or (b).