Guardian of children - [2002] HKLRC 1 (January 2002) - The Law Reform Commission of Hong Kong Report - Guardian of children

The Law Reform Commission was established by the Executive Council in January 1980. The Commission considers such reforms of the laws of Hong Kong as may be referred to it by the Secretary for Justice or the Chief Justice.

The Secretary of the Commission is Mr Stuart M I Stoker and its offices are at:

THE LAW REFORM COMMISSION
OF HONG KONG

REPORT

Chapter	*Page*

Preface	1

1. Guardianship of children in Hong Kong	4

Introduction	4
The meaning of "guardianship"	4
Historical context	5
The concept of guardianship today	5
Guardianship in practice	5
The guardianship provisions of the Guardianship of Minors Ordinance (Cap 13)	7
Scope of the ordinance	7
Matters for the court to consider	7
The application of the welfare principle	8
Parental rights and authority	10
Appointment of guardians	11
Removal of surviving parent as guardian	12
Surviving parent's objections	13
Unmarried father	13
Grandparents caring for child born outside marriage	14
Disputes between joint guardians	15
Guardian of the estate	16
Powers of the Director of Social Welfare	16
Other provisions relating to guardianship	17
Proceedings concerning a minor	17
Guardianship and wardship	18
Duties of the Official Solicitor	18
Consent to marry	19

2. Problems with the law	20

Introduction	20
Appointment of guardians	20
Disclaimer	21
Veto of the surviving parent	21
Court appointment of guardian	21
Appointment of guardian by guardian	22
Guardian of the estate	22

3. The law of guardianship in other jurisdictions	23

Introduction	23
England and Wales	23
Parental appointment of guardians	24
When the appointment takes effect	24
Method of appointment	26
Revocation of appointment	26
Disclaiming the appointment	27
Court appointment of guardians	27
Removal of guardians	27
Termination of guardianship	28
Guardian of the estate of a child	28
Scotland	29
Appointment of guardians by parent	29
Appointment by existing guardian	30
Views of child on appointment of guardian	30
Revocation of appointment	30
When appointment should take effect	31
Surviving parent	31
Responsibilities and rights of guardians	32
Termination of guardianship	33

4. Recommendations for reform	34

Introduction	34
Appointment of guardians	34
Disclaimer	36
Veto of surviving parent	38
Views of the child on appointment of guardian	39
When appointment of guardian takes effect	40
Court appointment	42
Appointment by guardian	43
Removal or replacement of guardian	44
Guardian of the estate	44

5. Summary of recommendations	46

Annex 1 - List of the respondents to the Consultation Paper on Guardianship and Custody	49

Annex 2 - Relevant Overseas Provisions	51

Hong Kong Law Reform Commission

THE LAW REFORM COMMISSION OF HONG KONG

REPORT

GUARDIANSHIP OF CHILDREN

January 2002

THE LAW REFORM COMMISSION
OF HONG KONG

REPORT

CONTENTS

Chapter

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