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THE LAW REFORM COMMISSION OF HONG KONG - page 37 / 360

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then the court can, under section 11, order access in favour of the father and  maintenance or property orders against the natural father.

If unmarried father is not the surviving parent

2.43If the unmarried father is not to be regarded as the “surviving parent”, then he may wish to apply to be appointed guardian on the death of the mother.  If he applies under section 7 to be appointed as guardian, he may be rejected, as he cannot be considered as “a parent” or “a person having parental rights”.  He may be able to apply under section 8 for an order to remove a guardian already appointed for the child, either by the court or by a deed or will, and instead to appoint him as guardian.  Section 5 would not apply as there is no “surviving parent” with whom the guardian appointed under that section could act.  Alternatively, the natural father could apply to have the child made a ward of court.

2.44Even if he were not appointed guardian, he could, once he had an order under section 3(1)(d) in his favour, apply for custody or access under section 10.  A person having a custody order in his favour under section 10 could apply for a maintenance order against either parent for the support of the child.

Grandparents caring for child born outside marriage

2.45Section 7 allows any person to apply to be appointed as guardian of a child who has no parent, guardian or other person with parental rights.  This would, for instance, permit the grandparents caring for a child born outside marriage to apply to be appointed as guardians in appropriate circumstances.  Though the legislation does not specifically so provide, the court can appoint joint guardians.99

2.46If, by virtue of a prior parental rights order under section 3(1)(d), the natural father is held to be a surviving parent for the purposes of the Ordinance, then the court could appoint the maternal grandparents under section 5 to act jointly with the father where they are actually looking after the child.  The grandparents could later apply to the court under section 8 for removal of the natural father as guardian if the welfare of the child so demanded, as section 8 allows the court to remove a guardian “appointed or acting by virtue of this Ordinance”.

2.47Unmarried mothers should be encouraged to make a will appointing the person already assisting in looking after the child, usually a relative or grandparents, to be a guardian to avoid the complicated legal position that may arise after her death.

Dispute between joint guardians

2.48Where there is a dispute between joint guardians, section 9 allows the court to “make such order regarding the matters in difference as it may think proper”. Joint guardians are either the surviving parent acting with the testamentary guardian or a court appointed guardian under section 5 or 7, or guardians appointed by both

99 Section 7(2) of the Interpretation and General Clauses Ordinance (Cap 1) provides that words in the singular include the plural.

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