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THE LAW REFORM COMMISSION OF HONG KONG - page 38 / 360

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parents.100  Section 9 does not indicate whether orders of custody or access or maintenance can be made against a guardian who is not a parent.  However, the English Law Commission suggested that the court, in dealing with a dispute between joint guardians under the English legislative equivalent to section 9,101 can make any order as is proper, and this could include access.102

2.49Section 12 deals with powers to order custody and maintenance where joint guardians disagree and where one of the guardians is a surviving parent.  The court can order access by the surviving parent, and maintenance orders against the surviving parent.  Arnold J in Re N (Minors) (Parental Rights)103 said that an application under the equivalent English legislation, the Guardianship of Minors Act 1971, was of little help when both parents are dead as the court cannot settle the custody of the child where members of the family disagree about where the child should live.

Consent to marry  

2.50Section 14 of the Marriage Ordinance (Cap 181) (as amended by sections 28-36 of the Law Reform (Miscellaneous Provisions and Minor Amendments Ordinance) (Ord. No. 80 of 1997) provides that the written consent to the marriage of a child under 21 is required from the parent who has custody, or both parents if they have joint custody.  In the case of an illegitimate child, the consent of the mother, or if she is dead, the guardian, is required when the child is under 21.  This removed a doubt as to whether the consent of the father of an illegitimate child was required.  A guardian is now defined by section 18A(3) as including “any person to whose custody the party is committed by order of the court, other than a parent”.104

Powers of the Director of Social Welfare

Care and supervision orders

2.51If there are exceptional circumstances making it impracticable or undesirable to entrust the minor to the parents or any other individual, then the court may commit him to the care of the Director of Social Welfare.105  In 1994/95 one case was referred for a care order, and none in 1995/96.  There were two cases in the period April 1996 to the end of March 1997.  The court can also order supervision in exceptional circumstances for minors under 18 years.106  There were 12 supervision orders in 1994/95 and 4 in 1995/96.  There were ten orders in the period April 1996 to

100 Section 6(4).

101 Section 7 of the Guardianship of Minors Act 1971.

102 Paragraph 2.28 of Family Law, Review of Child Law, Guardianship, (No 91: 1985).

103 [1974] Fam Law 40, 44 referred to at paragraph 2.18 of the Law Commission.

104 This is wide enough to include the Director of Social Welfare.  The definition was included in section 31 of the Law Reform (Miscellaneous Provisions and Minor Amendments Ordinance (Ord. No 80 of 1997).

105 Section 13(1)(b).

106 Section 13(1)(a).

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