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THE LAW REFORM COMMISSION OF HONG KONG - page 72 / 360

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3.14Notwithstanding separation or divorce, each parent continues to have parental responsibility even if a residence order has been made in favour of one of them.262  Each will still be able to exercise parental responsibility without having to consult the other, and the Act does not give either the right to veto the other’s action.

Scope of “child”

3.15Parental responsibility exists in respect of a “child”, that is, a person under the age of 18.263  It is a moot point whether responsibility exists for a married child.  The Act is silent on when parental responsibility begins.  In the absence of any indication to the contrary, Bromley and Lowe suggested that references to “child” in the Act mean a live child.  Accordingly, it was submitted that no one has parental responsibility until the child is born and fathers have no rights over foetuses.264

Scope of parental responsibility

3.16The concept of parental responsibility was defined by referring to all the rights, claims, duties, powers, responsibilities or authority, which statute and common law for the time being confer upon parents.  The Act does not provide a list of these rights et al as the English Law Commission considered that it would be practically impossible.  The list must change from time to time to meet differing needs and circumstances.  The Gillick case265 demonstrated that it must also vary with the age and maturity of the child and the circumstances of each individual case.266

3.17Some have deprecated this strategy.267  However, White, Carr and Lowe submitted that:

“the Act has adopted the right strategy.  In practice, the law has worked reasonably well without such a list.  The inestimable advantage of the scheme laid down by the 1989 Act is that it provides a single, modern and appropriate concept which is applied throughout the statute law affecting children.”268

Acquisition of parental responsibility

Unmarried parents

262 Section 2(6).

263 Section 105(1).

264 Bromley & Lowe, Bromley's Family Law (1992),  330.

265 [1986] AC 112.

266 Law Com, Family Law Review of Child Law, Guardianship and Custody,  (1988, No 172), paragraph 2.6.

267 For example, Jones (1989) 139 NLJ 728, Lyon [1989] Fam Law 49, 50.

268 White, Carr & Lowe, A Guide to the Children Act 1989 (1990), paragraph 2.6.

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