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THE LAW REFORM COMMISSION OF HONG KONG - page 73 / 360

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3.18Where the parents are unmarried at the time of the child’s birth, only the mother has parental responsibility as of right but the father can acquire it in the following ways:269

(a)upon taking office as a guardian of the child appointed under the Act;270

(b)by obtaining a parental responsibility order from the court;271

(c)by making a parental responsibility agreement with the mother;272 and

(d)by obtaining a residence order in which case the court is bound to make a separate parental responsibility order.273

3.19The Law Commission was concerned that unmarried mothers, who normally bear primary responsibility for the care of their children, might be subjected to interference and harassment by “unmeritorious” men.  As explained by Balcombe LJ:

“the position of the natural father can be infinitely variable; at one end of the spectrum his connection with the child may be only the single act of intercourse (possibly even rape) which led to conception; at the other end of the spectrum he may have played a full part in the child’s life from birth onwards, only the formality of marriage to the mother being absent.  Considerable social evils might have resulted if the father at the bottom end of the spectrum had been automatically granted full parental rights and duties ....”274

3.20The father is likely to apply to the court for an order that he shall have parental responsibility for the child if the mother is unwilling to share responsibility with him voluntarily.275  An application may be made in respect of a child under the age of 18.276  The courts have set out some criteria for evaluating applications for parental responsibility by unmarried fathers.  Account is taken of the degree of commitment which the father had shown to the child, the degree of attachment between the father and the child, and the reasons for the father applying for the order.277  If he has met these criteria then prima facie the order is in the child’s interests.278  The effect of the order is to give the father an equal say in all matters of the upbringing of the child.279  That is not to say that he is entitled to interfere in matters within the day-to-day management of the child’s life or to override the

269 Section 2(2).

270 Section 5(6).

271 Section 4(1)(a).

272 Section 4(1)(b).

273 Section 12(1).

274 Re H (Illegitimate Child: Father: Parental Rights) (No 2) [1991] 1 FLR 214, 218.

275 Children Act 1989, section 4(1)(a).

276 Section 105(1).

277 Re H (Illegitimate Children: Father) [1991] 1 FLR 214, CA, Re H (A Minor) (Contact and Parental Responsibility) [1993] 1 FLR 484, CA, S v R (Parental Responsibility) [1993] Fam Law 339.

278 Re E (A Minor) (Parental Responsibility) [1994] 2 FCR 709.

279 In 1996, 5587 parental responsibility orders were made, despite 232,663 births outside marriage that year.  The father’s details were included on the birth certificates for 78% of births outside marriage.  See further Lord Chancellor’s Department Consultation Paper on Procedures for the determination of paternity and on the law of parental responsibility for unmarried fathers, April 1998.

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