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THE LAW REFORM COMMISSION OF HONG KONG - page 71 / 360

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child’s property.254

3.11Freeman is critical of the concept of “parental responsibility”:

“The innocuous phrase ‘parental responsibility’ secretes within it three messages.  First, that parents are decision-makers rather than children.  The decision in Gillick v West Norfolk and Wisbech Area Health Authority255 limited the power of parents to make decisions for their mature children.  The Act appears to have overturned this principle....  but there is no procedure which allows them to participate in decision-making where there is a dispute in court.

Secondly, the emphasis on responsibility as more important than rights is affirmed....  The third message ... is that parents and not the State have responsibility for children....  If the hidden agenda is one of social engineering, viz. that by encouraging parents to believe that they always have responsibility will mean that they will take their responsibility more seriously, the prospects of success must be slim.  There is no reason to believe that giving parents greater freedom will guarantee that the standard of care will improve.”256

Persons with parental responsibility

Married parents

3.12The Children Act 1989 provides that where a child’s mother and father were married to each other at the time of the birth, they shall each have parental responsibility for their child.257

Non-parents

3.13Those who are not parents do not have parental responsibility as of right but can acquire it in a number of ways.  Thus, a person taking office as a guardian has parental responsibility for the child concerned.258  Similarly any person, who is not a parent or guardian of the child, has parental responsibility for the duration of a residence order which has been made in his favour.259  An order of parental responsibility does give status to that person.260  However, such acquisition of responsibility will not entitle him to consent to an application for an order freeing the child for adoption or to agree to an adoption order nor may he appoint a guardian.261

254 Section 3(4)(b) of the Children Act 1989.

255 [1986] AC 112.

256 Freeman, “In the Child’s best Interests?  Reading the Children Act Critically”, 45 CLP 173, 185-7(1992).

257 Section 2(1).

258 Section 5(6).

259 Section 12(2).

260 Re S (A Minor) (Parental Responsibility) [1995] 3 FCR 564.

261 Section 12(3).

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