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THE LAW REFORM COMMISSION OF HONG KONG - page 83 / 360

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3.58A person with parental responsibility may not surrender or transfer any part of that responsibility to another person save by a court order.  However, he may delegate some or all of that responsibility to one or more persons acting on his behalf.343  Such delegation can be made to another person who already has parental responsibility or to those who have not, such as a responsible person in schools or holiday camps or foster parents.

3.59The English Law Commission recommended such a provision for the following reasons:

(a)Parents should feel free to agree between themselves the arrangements which they believe best for their children, whether or not they are separated, and

(b)It would be helpful if, for example, a school can feel confident in accepting the decision of a person nominated by the parents as a temporary “guardian” for the child while they are away.344

3.60Since such arrangements are not legally binding, they can be revoked or modified at will.  Moreover, delegation will not affect the liability of the person making such arrangements which may arise from failure on his part to discharge his responsibilities to the child.345

Carers without parental responsibility

3.61Anyone with actual care of a child but who does not have parental responsibility may “do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare”.346  This clarifies the position of those who have actual care of a child without having parental responsibility for him in law.

3.62The English Law Commission gave the example of medical treatment.347  If the child is left with friends while the parents go on holiday, it would obviously not be reasonable for the friends to arrange major elective surgery, but it would be reasonable to arrange treatment in the event of an accident to the child.  As Bainham sees it, the essence of the distinction would appear to be that emergency or routine medical care would be covered by the section, but procedures with long-term or irreversible implications would require the consent of a person with parental responsibility.348

Welfare principle

343 Section 2(9).

344 Law Com No 172, paragraph 2.13.

345 Section 2(11).

346 Section 3(5).

347 Law Com No 172, paragraph 2.16.

348 Bainham, Children - The Modern Law (1993), 251.

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