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Hong Kong Law Reform Commission |
"[Guardianship] is a concept linked to English feudal landownership and so is of little relevance to Hong Kong today."[88]
2.1 The
historical development of guardianship, and its interplay with the modern notion
of parenthood, has meant that the law of guardianship "has developed
piecemeal to meet various different
requirements.”[89]
2.2 The
focus of this chapter is an examination of various shortcomings in Hong Kong's
current law on the guardianship of children.
2.3 Section 6(1) of the Ordinance provides that a parent may
appoint a guardian by deed or will. These are formal documents, the
preparation, execution and operation of which may involve many technicalities.
Partly as a result of this perhaps, many people do not make a will. This
situation is not in the best interests of children.
2.4 For those who do
make a will appointing a guardian for their child, there is currently no
requirement that the consent of the person appointed as testamentary guardian be
obtained, or even that they be notified of the fact of their proposed
testamentary guardianship. This also is not in the best interests of children,
nor for the appointee involved, who should be given the opportunity to consider
the seriousness of the responsibilities he may be expected to assume in relation
to the child.
2.5 Although section 5 of the Ordinance gives power to appoint a
guardian where a testamentary guardian refuses to act, there is no provision for
a guardian to disclaim an appointment, if he does not wish to take it up.
For the reasons cited above, there may need to be some provision introduced to
allow this.
2.6 Under section 6(2) of the Ordinance, the surviving parent has
a right to veto the testamentary guardian taking up his appointment if the
surviving parent objects to it. Without more, this renders the appointment by
the deceased parent nugatory, unless the testamentary guardian takes the matter
to court. The court can then refuse to make an order, which results in the
surviving parent remaining sole
guardian,[90] or it can order that
the guardian act jointly with the surviving parent, or to the exclusion of the
surviving parent.[91] The surviving
parent, however, does not have the right to take the initiative to go to court
under this section.
2.7 It does not seem satisfactory that the surviving
parent can so easily nullify the testamentary appointment made by the deceased
parent. Equally, it does not seem justifiable that the surviving parent should
be barred from seeking a specific remedy from the court if he objects to the
testamentary guardian assuming his appointment.
2.8 Section 7 of the Ordinance provides for the court to appoint
a guardian if the child has no parent, no guardian and no other person having
parental rights with respect to
him.[92] The power to appoint is
therefore limited in its scope.[93]
In Hong Kong, the role of the extended family in the upbringing of children is
still very much apparent. It would be preferable if this section gave a more
effective right to such interested persons to apply to the court to be appointed
as guardian.
2.9 There does not appear to be any statutory provision in Hong
Kong allowing a guardian to appoint a guardian to act for him in the event of
his death. If a guardian is intended to assume full parental responsibility for
the child, then the power for the guardian himself to appoint a guardian should
be included within the scope of that responsibility.
2.10 Section 18 of the Ordinance provides that a guardian of the
person of the minor shall also be guardian of his estate except in those
circumstances specified in subsection
(2).[94] The Official Solicitor
Ordinance (Cap 416) sets out the jurisdiction of the Official Solicitor with
regard to property matters. We note that there appears to be no equivalent
power in Hong Kong to Order 80 rule 13 of the English Rules of the Supreme
Court, which provides that only the Official Solicitor can be appointed by the
court as guardian of the estate of a child. It is unclear whether such an
express power needs to be similarly provided in Hong
Kong.[95]
[88] Dr Athena Liu, Family Law for the Hong Kong SAR (1999, HKU Press) at 235.
[89] English Law Commission's working paper, Family Law: Review of Child Law: Guardianship (1985, Working Paper No 91, HMSO) at para 2.3.
[90] Section 6(3)(a), GMO.
[91] Section 6(3)(b), GMO.
[92] This would include an unmarried father who had obtained an order under section 3 GMO granting him parental rights or authority.
[93] See Liu, above, at 239.
[94] Where the court may specifically appoint a separate guardian of the estate.
[95] See the comments under this head appearing later, in Chapter 4.