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Hong Kong Law Reform Commission |
“Children's well-being depends on their care-givers who normally are their parents”.[8]
1.1 Children
are born dependent, and so provision must be made for their daily care and
upbringing as they move from infancy through childhood to
adulthood.[9] In the
rare[10] but
unhappy[11] event that one or
both of the child’s parents dies, the appointment of a
“guardian” is the usual mechanism by which this is achieved; either
under the will of the deceased parent (ie, a “testamentary
guardian”) or by the appointment of the court. In this sense,
“guardianship” refers to the legal status under which a person
exercises parental rights and authority for a child following the death of one
or both of the child’s
parents.[12] As Liu states:
“The general understanding is that such a person acts as a parent substitute ... and arguably should have the same rights and authority as a parent.”[13]
1.2 It
is the law relating to testamentary guardianship and to guardians appointed by
the court which is the focus of this
report.[14]
1.3 “Natural guardianship” is a very old legal concept
that appears to have been the original legal concept of parenthood.
Significantly, the concept was based more upon the protection of family
landholdings than upon the protection of
children.[15] As noted by the
English Law Commission:
“[Guardianship] developed as a means of safeguarding a family’s property and later became an instrument for maintaining the authority of the father over his legitimate minor children. Hence he was recognised as their ‘natural’ guardian. While he was alive the mother had no claims as natural guardian and was originally in no better position than a stranger. Nineteenth century legislation gave her limited rights to apply to the courts for custody and access and, in 1886, made her automatically guardian after the father’s death. The Guardianship of Infants Act 1925 provided that the father should be guardian on the mother’s death. It also gave the mother 'like powers' to those of the father to apply to the court in any matter affecting the child but deliberately stopped short of making her a joint guardian during his lifetime.”[16]
1.4 In modern times, this concept of natural guardianship has evolved
to the point where, as we have noted above, the term “guardian” is
often used synonymously with “parent.” In this sense,
“guardianship” implies the bundle of rights, duties and authority of
a parent towards a child. These aspects of the parent-child relationship
include the right to make decisions and to be consulted on decisions about the
upbringing of a child and generally on all aspects of his
welfare.
1.5 Liu observes that at common law, the list of parental
rights and authority
includes:[17]
1.7 It is difficult to obtain any information on the numbers of
children subject to testamentary or court appointed guardianship in Hong Kong.
Similar difficulties in gathering relevant facts and statistics in this area
have been commented on overseas.[21]
The English Law Commission has stated:
“We know very little about the number of legal guardianships at present. We do not even know the numbers of children who are potentially subject to it, having lost one or both parents by death. Given the increased expectation of life generally, the risks of this have been diminishing. ... Lone motherhood is now more likely to result from divorce, marital separation or illegitimacy than from the father’s death. The same appears to be true of lone fatherhood... On any view ... the total number of children who lose one parent by death before reaching eighteen will be smaller than the number whose parents divorce or separate. It is clear that the great majority of such children remain with their surviving parents... We suspect that most orphaned children are cared for by relatives, friends or step-parents without any formal appointment of guardians.”[22]
1.8 The Guardianship of Minors Ordinance (Cap 13) (“the
Ordinance”) is one of the ordinances which governs court proceedings
relating to the custody and upbringing of
children,[23] including the
provision of maintenance for them. It regulates the custody rights of fathers
in relation to illegitimate
children[24] and the administration
of property owned by or held in trust for
children.[25] The Ordinance also
deals with the appointment, powers and removal of
guardians.[26] For the purposes of
the Ordinance, a minor is a child who has not yet attained 18 years of
age.[27]
1.9 Section 3 of the Ordinance sets out the principles that govern
the conduct of court proceedings covered by the Ordinance. Section 3(1) states
that:
“In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property-
(a) in any proceedings before any court ... the court -
(i) shall regard the welfare of the minor as the first and paramount consideration and in having such regard shall give due consideration to -
(A) the wishes of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and
(B) any material information including any report of the Director of Social Welfare available to the court at the hearing ....”
1.10 The principle of the welfare of the child is referred to in
section 3(1)(a)(i) but is not defined. The “welfare of the child”
is a fundamental principle of guidance to the courts in making decisions in
children’s cases and is said to lie “at the heart of all litigation
regarding
children.”[28]
1.11 The
effect of the welfare principle is to require the court to take into account
what is in the best interests of the child over and above what is best for any
adults involved in the litigation. This concept is also sometimes referred to
as “the paramountcy
principle.”[29] It is not
confined to considerations of money and physical comfort for the child, but
includes consideration of his social, intellectual, moral and religious welfare,
as well as his ties of
affection.[30]
1.12 The Ordinance does not provide any comprehensive list of the
factors or considerations which the court should take into account in
determining what constitutes the welfare or best interests of the child. This
does not mean that cases are decided in a vacuum,
however.[31] Cases on point suggest
that there are certain key factors which the courts have regard
to.[32] These key factors include:
the wishes and rights of the child (considered in relation to his age and level
of understanding); the child’s physical, emotional and educational needs;
the desirability of maintaining continuity of care for the child and the likely
effect on him of any change in circumstances; the child’s age, sex,
background and particular personal characteristics; any harm that he has
suffered or is at risk of suffering; and the capacity of each parent, or
relevant third party, to care for the child and to meet his
needs.[33]
1.13 All of the factors above are taken into account by the court in
determining what constitutes the welfare or best interests of the child.
Section 3(1)(a)(i) also states that the welfare of the child is to be “the
first and paramount consideration” of the court in hearing any proceedings
under the Ordinance. Lord MacDermott, in J v
C,[34] approached the
term as follows:
“[R]eading these words in their ordinary significance ... it seems to me that they must mean more than that the child’s welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare ... that is the first consideration because it is of first importance and the paramount consideration because it rules on or determines the course to be followed.”
1.14 In relation to the various factors that constitute welfare, Liu
has noted that there are “no arithmetical points systems or quantitative
formulae” for assessing these factors, and that “the courts are
dealing with the lives of human beings, and these cannot be regulated by any
rigid
prescriptions.”[35]
1.15 As
each case turns upon its own unique facts, judicial precedent can play only a
minor role in decision-making in this area. The courts therefore have very wide
discretion in determining what is in the best interests of the child. As a
result, commentators have variously described the welfare of the child as an
inherently subjective,[36]
“notoriously
indeterminate,”[37] and still
evolving,[38]
concept.[39]
1.16 Section 3(1)(b) of the Ordinance makes various references to the
rights and authority of the parents of the child. The scope of these parental
“rights” and areas of authority have been described earlier in this
chapter.[40] It has also been noted
that the term “guardian” is often used synonymously with
“parent” and so implies the bundle of rights, duties and authority
of a parent towards a
child.[41]
1.17 Section 3(1)(b) of the Ordinance states that in relation to the
custody or upbringing of a child, and in relation to the other matters dealt
with under the ordinance, the rights and authority of the mother and father are
equal and exercisable by either without the other, except where the child is
born out of wedlock.
1.18 In relation to the independent exercise of the
respective parent’s rights and
authority,[42] Liu explains the
implications of this as follows:
“In other words, one parent can, for example, decide which school and Sunday church a child should attend, or which doctor to consult, without consulting the other. This rule is designed to allow each parent, particularly the one who has day-to-day care and upbringing of the child, to exercise responsibility and make decisions without having to consult the other, and the onus is on the objecting parent to raise such an objection in court, but not the other way around.”[43]
1.19 Where
the child is born out of wedlock, the rights of the father are limited unless he
applies for a court order under section 3(1)(d) of the Ordinance for some or all
of the rights and authority that a father of a legitimate child would
have.
1.20 As we have noted above, although broad in its scope, the
principle of parental rights and authority is still subject to the principle of
the welfare of the child. Liu writes:
“[P]arental ‘rights’ reflects a misconception of the nature of the parent-child relationship. To the extent that the law enables parents to decide how to bring up their children without interference from others, it does so primarily because this is a necessary part of the parents’ responsibility for that upbringing and in order thus to promote the welfare of their children.”[44]
1.21 Strictly speaking, parental rights and authority apply until a
child reaches his majority.[45]
However, in reality, the significance of parental rights and authority
diminishes as the child grows older. Lord Denning has described parental rights
as:
“[A] dwindling right which the court will hesitate to enforce against the wishes of the child, the older he is. It starts with the right of control and ends with little more than advice.”[46]
1.22 It is apparent from the discussion in this chapter that the
traditional focus of the law in this area has been on parental rights rather
than on parental responsibilities. In some jurisdictions however, there has
been a major shift away from this emphasis on parental rights, to a new emphasis
on parental responsibilities and the rights of the child. This is reflected in
the English Children Act 1989, the Children (Scotland) Act 1995 and the
Australian Family Law Reform Act 1995.
1.23 It should be noted that the
implications of these developments for the legal parent-child relationship, and
whether similar changes should be introduced in Hong Kong, will be considered in
detail in the Commission’s forthcoming report on custody and
access.
1.24 Part III of the Ordinance deals with the appointment, removal,
and power of guardians. Section 5 provides that the surviving parent shall be
the child’s guardian, either alone or with the guardian appointed by the
deceased parent. Where no guardian has been appointed, or the person appointed
as guardian refuses to act or has died, then the court may appoint a guardian to
act with the surviving
parent.[47]
1.25 Section 6
of the Ordinance allows a parent to appoint a guardian by deed or will. Section
2 of the Age of Majority (Related Provisions) Ordinance (Cap 410) provides that
a reference in a deed or will, made after the Ordinance took effect, to a minor
or infant shall be construed as a person under 18 years. Unless the surviving
parent objects to the guardian so acting, the surviving parent and the
testamentary guardian act together as joint
guardians.[48] In those
circumstances an order for payment of remuneration “for his services as
guardian” can be made under section 6(6) of the Ordinance.
1.26 If the parent objects to the appointment of the testamentary
guardian, or if the guardian considers that the surviving parent is unfit to
have custody, the guardian can apply to the court under section 6(3) of the
Ordinance. The court can make an order that the guardian act as sole guardian,
or jointly with the surviving
parent.[49] This seems to imply
that the surviving parent’s guardianship rights can be removed and, given
the significant consequences of such an order, it would seem desirable that the
legislation should spell this out explicitly. Yet section 8, which provides for
removing or replacing a guardian, only gives this power to the court where it is
a guardian appointed or acting by virtue of the Ordinance or a testamentary
guardian. The welfare principle applies.
1.27 Section 11 of the
Ordinance deals with the situation where a person has been appointed sole
guardian to the exclusion of the surviving parent under section 6(3)(b)(ii).
The court can order custody, presumably to the guardian, and access by the
parent to the minor. The welfare principle applies in making such orders. The
court can also order the parent to make periodical or lump sum payments for the
child, or to transfer property. The section seems to imply that any other
rights as a guardian to be consulted on any major matters affecting the
upbringing of the child are removed, and the surviving parent only retains
access rights. It seems unfair that in a divorce the non-custodial parent
retains his rights as a guardian and can apply to court to enforce them if
denied by the custodial parent, and yet under the guardianship provisions, a
sole guardian who is not one of the parents can exclude the guardianship rights
of the surviving parent, except for access.
1.28 In its working paper,
the English Law Commission argued that the High Court had a limited right of
removal in respect of a natural parental
guardian.[50] This was because,
historically, in serious cases of misconduct, unfitness or inability, the court
could appoint another person to act in the place of the father and could
restrain the father from interfering though his rights were never completely
abrogated. However, the Commission noted that there were no recent cases on
these grounds.[51]
1.29 Section 6(3)(a) of the Ordinance also provides that, if the
surviving parent objects, the court can refuse to make any order “in which
case the surviving parent shall remain sole guardian.” Thus, the deceased
parent’s wishes are thwarted. It is unclear whether the welfare principle
applies to such a determination, as section 3(1) is limited to custody or
upbringing and property matters. Section 8, which refers to removal of
guardians, does apply the welfare principle. If a guardian is removed because
of the surviving parent’s objections, then the guardian has no right to
seek access, nor can he be ordered to pay any maintenance, as section 11 is
restricted to situations where the guardian is acting to the exclusion of the
surviving parent.
1.30 It should be noted however, that the surviving
parent shall not be entitled as of right to the custody or the guardianship of
the child upon the death of the custodial parent, if the court has, under
section 19(3) of the Matrimonial Proceedings and Property Ordinance (Cap 192),
made an order that the surviving parent was unfit to have custody. This order
may be included in the decree of divorce or judicial separation.
1.31 Where the minor has no parent or guardian, or a person having
parental rights with respect to him, the court can appoint a third party as
guardian under section 7 of the Ordinance. “Parent” is defined in
section 2 as father or mother but section 21 provides that for the purpose of
sections 5, 6, 7, and 11 the natural father is not to be treated as father
unless he is entitled to custody by already having an order under section 10 in
force or an order under section 3(1)(d). The natural father would have to issue
proceedings first under section 3(1)(d) to seek an order for some or all of the
rights and authority “that the law would allow him as father if the
minor were legitimate.”
1.32 The question then arises whether the natural father, with an
order of parental rights in his favour (under section 3(1)(d) of the Ordinance)
before the death of the mother, becomes the “surviving parent” for
the purposes of the Ordinance. One argument in favour of his being deemed to be
the surviving parent is that section 21 of the Ordinance provides that:
“[A]ny appointment of a guardian made by the natural father of an illegitimate child under section 6(1) shall be of no effect unless the appointer is entitled to the custody of the minor as under paragraph (a)[order of custody by an order under section 10(1)], or to enjoy any rights or authority with respect to the minor as under paragraph (b)[order under section 3(1)(d)], immediately before his death.”
1.33
If he is the “surviving parent,” then under section 5 of the
Ordinance he becomes the guardian either alone, or jointly with a testamentary
guardian or, if the mother has not appointed a testamentary guardian, jointly
with a guardian appointed by the court. If there is a dispute between the two
guardians, then the court can give such directions as it thinks proper under
section 9.
1.34 If the natural father is deemed to be the surviving
parent and he objects to the guardian who has been appointed by deed or will by
the deceased parent, then the court can order either the father or the
testamentary guardian to act as sole
guardian.[52] The court can also
make orders under section 11 of the Ordinance.
1.35 If the unmarried father is not to be regarded as the
“surviving parent”, then he may wish to apply to be appointed
guardian on the death of the mother. If he applies under section 7 of the
Ordinance to be appointed as guardian, he may be rejected, as he cannot be
considered as “a parent” or “a person having parental
rights.” He may be able to apply under section 8 for an order to remove a
guardian already appointed for the child, either by the court or by a deed or
will, and instead to appoint him as guardian. Section 5 would not apply as
there is no “surviving parent” with whom the guardian appointed
under that section could act. Alternatively, the natural father could apply to
have the child made a ward of court.
1.36 Even if he were not appointed
guardian, he could, once he had an order under section 3(1)(d) in his favour,
apply for custody or access under section 10. A person having a custody order
in his favour under section 10 could apply for a maintenance order against
either parent for the support of the child.
1.37 Section 7 of the Ordinance allows any person to apply to be
appointed as guardian of a child who has no parent, guardian or other person
with parental rights. This would, for instance, permit the grandparents caring
for a child born outside marriage to apply to be appointed as guardians in
appropriate circumstances. Though the legislation does not specifically so
provide, the court can appoint joint
guardians.[53]
1.38 If, by
virtue of a prior parental rights order under section 3(1)(d), the natural
father is held to be a surviving parent for the purposes of the Ordinance, then
the court could appoint the maternal grandparents under section 5 to act jointly
with the father where they are actually looking after the child. The
grandparents could later apply to the court under section 8 for removal of the
natural father as guardian if the welfare of the child so demanded, as section 8
allows the court to remove a guardian “appointed or acting by virtue of
this Ordinance.”
1.39 Unmarried mothers should be encouraged to
make a will appointing the person already assisting in looking after the child,
usually a relative or grandparents, to be a guardian to avoid the complicated
legal position that may arise after her death.
1.40 Where there is a dispute between joint guardians, section 9 of
the Ordinance allows the court to “make such order regarding the matters
in difference as it may think proper.” Joint guardians are either the
surviving parent acting with the testamentary guardian or a court appointed
guardian under section 5 or 7, or guardians appointed by both
parents.[54] Section 9 does not
indicate whether orders of custody or access or maintenance can be made against
a guardian who is not a parent. However, the English Law Commission suggested
that the court, in dealing with a dispute between joint guardians under the
English legislative equivalent to section
9,[55] can make any order as is
proper, and this could include
access.[56]
1.41 Section 12
of the Ordinance deals with powers to order custody and maintenance where joint
guardians disagree and where one of the guardians is a surviving parent. The
court can order access by the surviving parent, and maintenance orders against
the surviving parent. Arnold J in Re N (Minors) (Parental
Rights)[57] said that an
application under the equivalent English legislation, the Guardianship of Minors
Act 1971, was of little help when both parents are dead as the court cannot
settle the custody of the child where members of the family disagree about where
the child should live.
1.42 Section 18 of the Ordinance confirms the principle that a
guardian is not only the guardian of the child’s person, but also of his
estate. The Court of First Instance retains its power to appoint a guardian of
the estate either generally or for a specific
purpose.[58]
1.43 The powers
of a guardian and parent may not be co-extensive. For example, a surviving
parent can object to a testamentary guardian. A testamentary guardian cannot
appoint a guardian for the child. Liability to maintain can only be ordered
against a parent under section 10 or section 11 of the Ordinance. The child who
is the subject of a guardianship order can then be regarded as a child of the
family for the purposes of an order for maintenance when the guardian’s
marriage breaks up, but not
otherwise.[59] The English Law
Commission concluded that there was uncertainty as to a parent’s position
in relation to the property of the child, and it may be that a guardian has more
powers than a parent. The English Law
Commission[60] and the Scottish Law
Commission[61] dealt extensively
with the rights and duties of a guardian of the estate.
1.44 If there are exceptional circumstances making it impracticable
or undesirable to entrust the minor to the parents or any other individual, then
the court may commit him to the care of the Director of Social
Welfare.[62] The court must hear
the representations of the Director, including representations on maintenance of
the child, before ordering a child to be committed to the Director’s
care.[63] The scope of a
supervision order is not
defined.[64] The court can order
the parent to pay maintenance to the
Director.[65] The supervision order
ceases when the child is 18
years.[66] It may be varied,
discharged, suspended or revived on the application of either parent or, a
guardian, or by any person having custody by an order under section 10 of the
Ordinance, or on the application of the Director when he has a supervision order
in his
favour.[67]
1.45 There is no
time limit specified for the expiration of a care order. However, since the
Ordinance uses the term “minor” and this is defined in section 3 of
the Interpretation and General Clauses Ordinance (Cap 1) as a person who has not
yet attained 18 years, the care order expires at 18 years. The time limit of 16
on a supervision order has been removed by section 4 of the Marriage and
Children (Miscellaneous Amendments)
Ordinance.[68]
1.46 A guardian of the person or testamentary guardian can be
appointed as next friend to take or defend proceedings on behalf of the
minor.[69] Order 80 of the Rules of
the High Court (Cap 4, subsidiary legislation) deals with the appointment of a
next friend or guardian ad litem to represent the interests of the child.
The Order refers to a “person under disability,” which is defined in
Order 80 rule 1 to be “a person who is a minor or a mentally incapacitated
person”. The court must approve the settlement of any proceedings in
which there is a claim of money. The court gives directions under rule 12 to
control the monies recovered for the minor. Usually the money is invested by
the court until the minor reaches majority. Payment out of any of the monies
may be applied for by the next friend and the court will give directions on this
matter under rule 12(3).
1.47 There is no definition of “next
friend” but “the court generally expects a next friend to be a
substantial person; and, as in the case of a guardian ad litem, it is
desirable that he be a relation, connection, or friend of the family and not a
mere volunteer.”[70] The
Official Solicitor can also be
appointed[71] especially if no other
person is willing to
act.[72]
1.48 The guardian
ad litem or next friend can be removed if he is acting adversely to the
interests of the infant, or if he conducts the infant’s affairs
improperly.[73] If a conflict of
interest arises, the court can make an order to appoint the Official Solicitor
as guardian ad litem or next
friend.[74]
1.49 A court has no power to remove rights as a guardian while a
parent is alive, even though the impact of a custody order between two parents
is sometimes seen as achieving
this.[75] This jurisdiction is
different from the wardship jurisdiction. If a guardian is appointed that does
not make the child a ward of
court.[76] In wardship proceedings,
the court becomes the guardian and has responsibility for all matters affecting
the upbringing of the child.
1.50 Section 26 of the High Court Ordinance
(Cap 4) and Order 90 of the Rules of the High Court (Cap 4, subsidiary
legislation) governs the wardship jurisdiction. An order of wardship vests
custody:
“[I}n the sense of the whole bundle of parental rights, in the court which usually delegates actual care and control to an individual. Major decisions affecting the ward, eg consent to marriage, adoption proceedings, surgery and education must be taken by the court. Interference with and disobedience to the court order is a contempt of court.”[77]
1.51 Order
90 Rule 3 provides that where an application to make a child a ward of court is
pending, any application made under the Guardianship of Minors Ordinance (Cap
13) may be made in the pending wardship proceedings. Wardship would also be
relevant where a non-parent who has had the physical custody of the child is
opposing a request by a parent or parents to return the child. Foster parents
can also apply to make the child a ward of court. Unless the Official Solicitor
takes proceedings or the applicant can obtain the consent of the Director of
Social Welfare for him to take proceedings, wardship is the only
remedy.
1.52 The Official Solicitor can act where so appointed by the
court,[78] or at his discretion
where he is satisfied that the interests of justice so require and where there
is no other person fit and willing to
act.[79] The Director of Legal Aid
is the Official Solicitor.[80] The
duties of the Official Solicitor include acting as guardian ad litem or
next friend to a person under disability of age or mental capacity, or where a
person is committed to prison for contempt and who is unable or unwilling to
apply to the court for release.[81]
The Official Solicitor can also be requested by the Juvenile Court to act for a
party involved in proceedings under the Protection of Children and Juveniles
Ordinance (Cap 213).[82] The office
of Official Solicitor, who is also the Official Trustee and Judicial Trustee,
was established in 1991.[83] He
also took over the functions of the Crown Solicitor (now Law Officer (Civil
Law)) under rules 105(4) and 108(1) of the Matrimonial Causes Rules (Cap 179,
subsidiary
legislation).[84]
1.53 Where
the Official Solicitor is appointed in wardship proceedings, he appears as
advocate for the ward and represents the interests of the ward to the court. He
is also the guardian of the ward. He does not represent the
parents.[85]
1.54 Section 14 of the Marriage Ordinance (Cap
181)[86] provides that the written
consent to the marriage of a child under 21 is required from the parent who has
custody, or both parents if they have joint custody. In the case of an
illegitimate child, the consent of the mother, or if she is dead, the guardian,
is required when the child is under 21. This removed a doubt as to whether the
consent of the father of an illegitimate child was required. A guardian is now
defined by section 18A(3) as including “any person to whose custody the
party is committed by order of the court, other than a
parent.”[87] If a person
whose consent is required refuses to give his consent or cannot be traced, then
a District Court Judge may give his consent under section 18A.
[8] Dr Athena Liu, Family Law for the Hong Kong SAR (1999, HKU Press) at 211.
[9] Alberta Law Reform Institute, Child Guardianship, Custody and Access (1998, Rep No 18.4) at 1.
[10] Hoggett, Parents and Children: The Law of Parental Responsibility (4th ed, 1993, Sweet & Maxwell) at 95, notes that in the UK in 1989, of all families with dependent children, just 1% were headed by widows, compared with 9% headed by separated or divorced mothers and 5% headed by single mothers. (Comparing these types of family situation, however, Hoggett goes on to comment, at 95, that: “There are almost always material disadvantages associated with growing up in a one-parent family, but the financial and housing situation of the bereaved is markedly better than that of the others ... Nor do children who have lost a parent show a significantly increased rate of delinquency ..., or educational problems ... although some may be at greater risk of depressive illness in adult life.”)
[11] Hoggett, above, at 95. Hoggett goes on to express the view, however, that, when compared to children whose parents are undergoing the divorce process, children in this situation suffer fewer long-term unfavourable consequences. She writes: “Bereavement is a quite different experience from other types of separation or loss. ... It is rarely accompanied by prolonged hostilities and bitterness between the parents, or by legal disputes about the children’s future. The family’s resources may be much reduced, but they do not have to be shared between two households. Their lot attracts only sympathy and compassion from society and none of the condemnation which is still sometimes attached to marital breakdown and unmarried parenthood.”
[12] Clarke Hall & Morrison on Children (2000, Butterworths) at p 1/217, para 461.
[13] Liu, above, at 213.
[14] There also exists a form of guardianship which is used for adults suffering from a mental incapacity who cannot make decisions about their personal, medical or financial affairs. Provisions under Part IVB of the Mental Health Ordinance (Cap 136) empower the Guardianship Board to make orders appointing guardians for persons in these circumstances. This type of adult guardianship, however, is not the subject of this report. For further information on the operation of this type of guardianship, see the website of the HKSAR Guardianship Board, at <http:www.adultguardianship.org.hk>.
[15] Liu, above, at 212.
[16] English Law Commission’s report, Family Law: Review of Child Law, Guardianship & Custody (1988, Report No 172, HMSO) at para 2.2. See also Liu, above, at 212-213.
[17] See generally, Liu, above, at 213.
[18] Idem. (See Liu’s detailed discussion of each of these aspects of parental rights and authority at 217-228.)
[19] See the Marriage Ordinance (Cap 181) as amended by the Law Reform (Miscellaneous Provisions and Minor Amendments) Ordinance (No 80 of 1997).
[20] See the Adoption Ordinance (Cap 290).
[21] See the English Law Commission’s working paper, Family Law: Review of Child Law, Guardianship (1985, Working Paper No 91, HMSO) at paras 1.29-1.32; and the Scottish Law Commission’s discussion paper, Parental Responsibilities and Rights, Guardianship and the Administration of Children’s Property (1990, Discussion Paper No 88, HMSO) at para 3.2.
[22] English Law Commission (1985), above, at paras 1.29 and 1.31.
[23] Other relevant ordinances include the Matrimonial Causes Ordinance (Cap 179), the Matrimonial Proceedings and Property Ordinance (Cap 192) and the Separation and Maintenance Orders Ordinance (Cap 16).
[24] See Part V, GMO.
[25] See Parts II and IV, GMO.
[26] See Part III, GMO.
[27] See section 3, Interpretation and General Clauses Ordinance (Cap 1) and section 2, Age of Majority (Related Provisions) Ordinance (Cap 410). Note: in section 2 of the Matrimonial Proceedings and Property Ordinance (Cap 192), the term “child” is used and is defined as including an illegitimate or adopted child of one or both parties to a marriage. This section of the MPPO goes on to define “child of the family” as a child of both the parties to a marriage as well as “any other child who has been treated by both those parties as a child of their family.“
[28] Philippa Hewitt (ed) and others, Hong Kong Legal Practice Manuals: Family (Sweet & Maxwell, 1998), at 162, para 7.17. It is also said to be an evolving concept which encapsulates the widest possible meaning: see Liu, above, at 247-248; and also Hewitt, above, at 210-211.
[29] See Liu, above, at 246. Other terms with a similar meaning often used in this context include “the interest of the child” and “the best interests of the child.”
[30] Re McGrath (infants) [1893]1 Ch 143, at 148, per Lindley LJ, also cited in Liu, above, at 248.
[31] Liu, above, at 251.
[32] Liu, above, at 249-264. See also Hewitt (ed) and others, above, at 210-214.
[33] These factors have been encapsulated in statutory form in section 1(3) of the English Children Act 1989.
[34] [1970] AC 710, 711.
[35] Liu, above, at 251, citing the case Re F (an infant) [1969] 2 Ch 238.
[36] Mnookin, “Child Custody Adjudication: Judicial Functions in the Face of Indeterminacy,” (1975) 39 Law & Contemporary Problems 226, at 260, cited in Liu, above, at 263.
[37] Liu, above, at 263.
[38] Liu, above, at 248.
[39] We have noted earlier that the welfare principle has general application throughout proceedings relating to children. The principle is not applicable, however, in the following types of proceedings: an injunction under the Domestic Violence Ordinance (Cap 189) or the Adoption Ordinance (Cap 290); some wardship proceedings; proceedings related to sections 12 or 13 of the Parent and Child Ordinance (Cap 429) or section 34(1) of the Protection of Children and Juveniles Ordinance (Cap 213): see Liu, above, at 247.
[40] See above, paras 1.5 to 1.6.
[41] See above, para 1.4.
[42] Section 3(1)(b). It is significant that the concept of joint guardianship between the parents of the child in relation to custody, etc, does not appear to be contemplated within these provisions of the ordinance.
[43] Liu, above, at 229. See section 4(2) of the ordinance which outlines how disagreements between parents on issues affecting the child’s welfare are to be dealt with. Either party may apply to the court for directions, and the court may make such order as it thinks proper.
[44] Liu, above, at 216.
[45] See above, para 1.8.
[46] Hewer v Bryant [1970] 1 QB 357, at 369, cited in Liu, above, at 217.
[47] Section 5(a) and (b), GMO.
[48] Section 6(2), GMO.
[49] Section 6(3)(b)(i), GMO.
[50] English Law Commission (1985), above, at para 2.19.
[51] English Law Commission (1985), above, at para 2.7.
[52] Section 6(3)(a) or (b), GMO.
[53] Section 7(2) of the Interpretation and General Clauses Ordinance (Cap 1) provides that words in the singular include the plural.
[54] Section 6(4), GMO.
[55] Section 7 of the Guardianship of Minors Act 1971.
[56] English Law Commission (1985), above, at para 2.28.
[57] [1974] Fam Law 40, at 44, referred to in English Law Commission (1985), above, at para 2.18.
[58] Section 18(2), GMO.
[59] English Law Commission (1985), above, at para 2.29.
[60] Ibid.
[61] Scottish Law Commission’s report, Report on Family Law, (1992, Report No 135, HMSO).
[62] Section 13(1)(b), GMO.
[63] Section 15(1).
[64] However, section 34B of the Protection of Children and Juveniles Ordinance (Cap 213) states that the duty of a supervisor is to advise, assist, and befriend the supervised person. Section 34A puts the supervised person under a duty to comply with requirements of residence, medical or surgical attention or treatment. The wishes of the parent or guardian, but not the child, can be taken into consideration.
[65] Section 13(2).
[66] Section 14(1).
[67] Section 14(2).
[68] Ord No 69 of 1997.
[69] Harris v Lightfoot (1862) 10 WR 31, referred to in Supreme Court Practice, (2001 ed) at 80/3/7.
[70] Ibid, at 80/3/7, referring to Nalder v Hawkins (1833) 2 M & K 243.
[71] Re W [1907] 2 Ch 557, at 568 CA.
[72] Supreme Court Practice, above, at 80/6/8. See below for powers of the Hong Kong Official Solicitor.
[73] Ibid, at 80/3/9.
[74] Ibid, at 80/12/9.
[75] Ie, where “sole custody” is granted to one of the parents.
[76] Section 9(1) of Law Reform (Miscellaneous Provisions) Act 1949.
[77] Pegg, Family Law in Hong Kong (3rd ed 1994) at 271.
[78] Section 4(1)(a) of the Official Solicitor Ordinance (Cap 416) (OSO).
[79] Section 4(1)(b), OSO.
[80] Section 7, OSO.
[81] Schedule 1, Part 1, OSO.
[82] Schedule 1, Part 3, OSO.
[83] These functions under the Trustee Ordinance (Cap 29) were taken over from the Registrar General.
[84] Schedule 3, OSO.
[85] Re R(PM) [1968] 1 WLR 385, at 387, per Goff J.
[86] As amended by sections 28 to 36 of the Law Reform (Miscellaneous Provisions and Minor Amendments) Ordinance, Ord No 80 of 1997.
[87] This is wide enough to include the Director of Social Welfare. The definition was included in section 31 of the Law Reform (Miscellaneous Provisions and Minor Amendments) Ordinance (Ord No 80 of 1997).