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THE LAW REFORM COMMISSION OF HONG KONG - page 74 / 360

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decisions of the mother.280  If the father wishes to have the child in his care, he has to apply for a residence order.

Parental responsibility agreements

3.21Section 4 of the Family Law Reform Act 1987 gave power to make an order that an unmarried father could have the same parental status as the mother as if they were married.281  However, such judicial proceedings may be “unduly elaborate, expensive and unnecessary unless the child’s mother object[ed] to the order”.282

3.22A “parental responsibility agreement” under section 4(1)(b) of the 1989 Act provides a simple and straightforward means for unmarried parents to acknowledge their shared responsibility for the upbringing of their child.  It also brings the legal position into line with the factual situation where the father and mother are raising a child together.

3.23The making of the agreement has the same effect as a court order.  Both an agreement and an order may only be brought to an end by a court order made on the application of anyone with parental responsibility, or on the application of the child himself where the court is satisfied that he has sufficient understanding to do so.283

3.24The agreement has to be signed by the mother and father in the presence of a witness who must be a Justice of the Peace, Justice’s Clerk or authorised officer of the court.284  It will take effect after it has been filed with the Principal Registry of the Family Division of the High Court.  It is available for inspection by anyone.  The Agreement Form contains the following warning: “The making of this agreement will seriously affect the legal position of both parents.  You should both seek legal advice before completing this form.”

3.25The purpose of these formalities is to ensure that, as far as possible, both parents understand the importance and effects of their agreement, to advise them to seek legal advice and to inform them about the ways in which the agreement can be brought to an end.  There is the fear that mothers may be bullied into conferring rights upon the fathers at a time when they are particularly vulnerable to pressure.  Such formalities go some way to avoiding allegations of duress.  There is no investigation of whether the agreement is in the child’s best interests or why the parents are entering into it when an agreement is registered.  Indeed there is no effective check on whether, for example, the man is the father of the child concerned.  The court’s role is purely administrative and not judicial.

3.26Bainham questioned how far these agreements will be used in practice:

280 Re P (Child) (Parental Responsibility Order) [1993] 2 FCR 689.

281 Cf  Guardianship of Minors Act 1971, section 9(3).

282 Law Com No 172, (1988) paragraph 2.18.

283 Section 4(3).  The order may not be revoked while a residence order in favour of the father continues: section 12(4).

284 Section 4(2); Parental Responsibility Agreement Regulations 1991 (SI 1991/No 1478); and SI 1994 /No 3157.

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