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THE LAW REFORM COMMISSION OF HONG KONG - page 79 / 360

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residence order in his favour died while the order was in force.317  The former applies to orphans or where there is an unmarried father without parental responsibility.  The latter applies where the child may have a surviving parent without a residence order.318   It seems that the court may exercise its power to appoint even though the deceased had made an appointment and may do so either to add or to substitute a new guardian.319

3.42There is no requirement that leave of the court must first be obtained before an application to be appointed a guardian can be made.  In addition, the court has a power to make an appointment of its own motion.320  It seems that once family proceedings have been initiated, any interested person, including the child himself, may seek the appointment of another individual to be a guardian.321  A court may call for welfare reports to assist it in deciding on the appointment or discharge of a guardian.322

Removal of guardians

3.43Any appointment of a guardian, whether by a parent, guardian or the court, may be brought to an end by order of the court in one of the following ways:

(a)on the application of any person with parental responsibility;

(b)on the application of the child with leave of the court; or

(c)upon the court’s own motion in any family proceedings, if the court considers that it should be brought to an end.323

The court may appoint a new guardian to replace the one removed.

Termination of guardianship

3.44Guardianship automatically terminates when the child reaches the age of 18.324  Whether the guardian’s duties determine upon the child’s marriage is a moot point.  Although the Act does not contain any express limitation, the court may well decide that there is no scope for the operation of guardianship.  Even if the guardianship continues, it is unlikely that a guardian would be permitted to interfere with the activities of a married child.325

Guardian of the estate of a child

3.45Apart from guardians of the person, there are also guardians of the estate who are appointed to protect the child’s property.  The English Law Commission noted that guardians of the estate may be appointed specifically to administer an award made to a child by the Criminal Injuries Compensation Board in respect of injuries caused by the parents, or where a child becomes entitled to a

317 Section 5(1) and (2).

318 Section 5(9).

319 Cretney & Masson, Principles of Family Law (5th ed, 1990) 508.

320 Section 5(2).

321 White, Carr & Lowe, op cit at paragraph 2.39.

322 Section 7.

323 Section 6(7).

324 Section 91(7) and (8).

325 White, Carr & Lowe, op cit at paragraph 2.52.

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