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THE LAW REFORM COMMISSION OF HONG KONG - page 75 / 360

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“Parents living together amicably may see no advantage in formalising their arrangements, especially since some people choose to cohabit precisely because of their dislike of the formalities which attach to marriage.   They may also be unaware of the disparity in their respective legal positions or the provision for agreements.  There is yet a further possibility that the mother may not be sufficiently confident about the relationship, or the father’s parenting role, that she would wish to dilute her own legal control by sharing parental responsibility.”285

3.27Nevertheless, parental responsibility agreements have proved to be popular with  a considerable number of applications for first registration.286

Duration of parental responsibility orders or agreements

3.28Parental responsibility orders and agreements remain in force until the child reaches the age of 18, even though the parties may have been living together or subsequently separate.287  However, such an order or agreement may be brought to an end earlier by an order of the court upon the application of any person who has parental responsibility for the child.288  The child himself may also apply with leave of the court “if it is satisfied that the child has sufficient understanding to make the proposed application”.289  The court cannot end a parental responsibility order while a residence order in favour of the unmarried father is in force.290

Guardianship

3.29The law of guardianship was a product of common law, equity and statute.  Parents and guardians had similar but not identical powers.291  The law has been simplified and is now governed by the 1989 Act exclusively.292  The term “guardian” is now restricted to non-parents.  Guardians now have parental responsibility.293  The rationale is that the power to control a child’s upbringing should go hand in hand with the responsibility to care for him.  It was expected that guardians would take over complete responsibility for the care of a child if the parents die.

3.30A guardian may appoint another individual to take his place as the child’s guardian in the event of his death.294  The English Law Commission noted that “[if] appointing a guardian is an aspect of responsible parenthood, it can be no less an aspect of responsible guardianship.”295

285 Bainham, Children: The Modern Law, (1993) 166.

286 It was reported that 1510 parental responsibility agreements were registered during the first year: NLJ (Nov 27, 1992) 1638.  About 3000 agreements have been registered each year since then.

287 Section 91(7)(8).

288 Section 4(3).

289 Section 4(4).

290 Section 12(4).

291 Family Law Review of Child Law: Guardianship, Law Com (1985: Working Paper No. 91), paragraph 2.26.

292 Section 5(13).

293 Section 5(6).

294 Section 5(4).

295 Law Com No 172, paragraph 2.25.

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