|
Hong Kong Law Reform Commission |
3.1 This chapter examines developments in the law of guardianship
which have taken place in the United Kingdom. As their guardianship regimes
have in the past been very similar to our current guardianship regime in Hong
Kong, the reforms they have implemented may be useful for consideration
here.
3.2 The earlier law of guardianship in England was a product of the
common law, equity and statute. Parents and guardians formerly had similar but
not identical powers.[96] The law
has been simplified and is now governed exclusively by the provisions of the
Children Act 1989 Act (“the 1989
Act”).[97]
3.3 The
term “guardian” is now restricted to non-parents, and guardians now
have “parental
responsibility.”[98] The
rationale is that the power to control a child’s upbringing should go hand
in hand with the responsibility to care for him. It was expected that guardians
would take over complete responsibility for the care of a child if the parents
die.
3.4 A guardian may appoint another individual to take his place as
the child’s guardian in the event of his
death.[99] The English Law
Commission noted that, “[if] appointing a guardian is an aspect of
responsible parenthood, it can be no less an aspect of responsible
guardianship.”[100]
3.5 In the past, each parent could appoint a testamentary guardian to
replace him on his death.[101]
The appointment took effect even if the other parent was still alive. However,
if the survivor objected, he could apply to the court to prevent the appointee
from taking office. The guardian could also apply if he considered the survivor
unfit to have custody of the child. The court could then order that the
guardian or parent may act alone or both to act jointly.
3.6 Under the
1989 Act, a parent with parental
responsibility[102] may appoint an
individual to be the child’s guardian in the event of his
death.[103] Appointments can be
made only in respect of children under the age of
18.[104] Although there is no
express prohibition against making an appointment in respect of a married child,
it is not clear whether the courts would make such an appointment in practice.
It seems that more than one individual may be
appointed.[105] An additional
guardian may also be appointed at a later
date.[106]
3.7 The appointment will take effect immediately upon the death of
the appointing person if that person was the only parent with parental
responsibility at the time of his
death.[107] But if there is a
surviving parent with parental responsibility, then the appointment will
normally take effect upon the death of the sole surviving
parent.[108] The exception is
when the deceased parent had a residence order in his favour and the surviving
parent did not. In such circumstances, the appointment will take effect
immediately upon the death of the appointing
person.[109]
3.8 A purpose
of the 1989 Act is to prevent the appointee attempting to exercise a control
which cannot and should not be his if the child is not living with him. Where
the child had been living with both parents, the survivor does not have to share
responsibility with the person appointed although he is always free to seek the
assistance of the latter if he wishes to do so. Any unnecessary conflicts
between the survivor and the person appointed could thus be minimised. In the
event that the person appointed wishes to challenge a decision of the surviving
parent, he may apply to the court for an order under section 8 of the 1989 Act.
However, if the surviving parent had also appointed a guardian, there can be
conflicts between the two separately appointed guardians on the subsequent death
of the survivor.
3.9 As regards this exception, the English Law
Commission held the view that if a parent has a residence order in his favour,
he should be able (and indeed encouraged) to provide for the child’s
future upbringing in the event of his death by appointing a
guardian.[110] The Act therefore
provides that in such circumstances the appointment by that parent will have
immediate effect even though there is a surviving
parent.[111] The guardian will
have to share parental responsibility with the latter. Any dispute as to the
child’s upbringing such as his residence, will have to be resolved by the
court.
3.10 Although the policy of the Act may seem right where the
child was living with both parents in a united household, different
considerations apply where the parents were divorced or separated and the
deceased parent making the appointment had a residence order in his favour but
the surviving parent did not. Bainham has the following comments to
make:
“The thinking seems to be that the deceased parent should be able, through guardianship, to preserve the ‘advantage’ of the residence order after his death. It is questionable how far this can be squared with the central principle of continuing parental responsibility.
Apart from the residence issue, the non-residential parent is as much a parent as was the deceased residential parent. To make him share parental responsibility with a guardian may seem inappropriate where he has continued, in fact, to be actively connected with the child. It would arguably have been more consistent with the general aims of the legislation to have placed the onus on the guardian to seek immediate appointment where it could be demonstrated that this was in the child’s best interests.
Another difficulty is that the rule appears to create uncertainty about who is entitled to take over the physical care of a child. An initial dispute over where the child is to live would, therefore, appear to require a residence order to resolve it. This could have been avoided if the survivor held sole parental responsibility unless and until challenged by the guardian.”[112]
3.11 The
Scottish Law Commission also commented that the exception makes no provision for
the position where the spouses were separated or divorced but where there was no
residence order.[113] For
example, although the father may have abandoned his family, and no residence
order was obtained by the mother, he nevertheless has sole parental
responsibility for the child and the onus will be on the appointee to challenge
this position. The opinion of the Scottish Law Commission was that in such
cases, it might be desirable for the appointment of guardian to take effect
immediately on the death of the appointing person even though there is a
surviving parent somewhere.
3.12 The 1989 Act prescribes a simple method of appointment to
encourage parents to appoint
guardians.[114] It is no longer
necessary for appointments to be made by deed or will. However, the document of
appointment must be in writing and signed by the person making the appointment.
The document must be signed at his direction, and in the presence of two
witnesses who should each attest the signature. An appointment made by a will
which is not signed by the testator must be signed at the direction of the
testator and witnessed in accordance with the provisions of section 9 of the
Wills Act 1837.[115]
3.13 Appointments by parents or guardians may be revoked by one of
the following methods:
(a) by making another appointment unless it is clear that the purpose is to appoint an additional guardian,[116]
(b) by a written document revoking the appointment,[117] or
(c) by destruction of the document with intention to revoke the appointment.[118]
If
the appointment is made in a will, it is revoked if the will is
revoked.[119] Section 4 of the
Law Reform (Succession) Act 1995 provides that, unless a contrary intention is
shown in the instrument of appointment, any appointment by the deceased testator
of the former spouse as guardian is deemed to have been revoked at the date of
the divorce. This also applies to
nullity.[120]
3.14 The Act provides for a right to disclaim appointments made by a
parent or guardian but not to those made by the
court.[121] The disclaimer must
be made by an instrument in writing, signed by the appointee and made
“within a reasonable time of his first knowing that the appointment has
taken effect”. It must also be recorded in compliance with any
regulations that may be made by the Lord Chancellor.
3.15 The court may appoint an individual to be a child’s
guardian if the child has no parent with parental responsibility, or a parent or
guardian with a residence order in his favour died while the order was in
force.[122] 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.[123] 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.[124]
3.16 There
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.[125] 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.[126] A court may call
for welfare reports to assist it in deciding on the appointment or discharge of
a guardian.[127]
3.17 Any 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.[128]
The
court may appoint a new guardian to replace the one removed.
3.18 Guardianship automatically terminates when the child reaches the
age of 18.[129] 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.[130]
3.19 Apart 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 foreign legacy or money from a pension fund or insurance policy
and either his parents are dead or for some reason cannot give an adequate
receipt.[131]
3.20 The
English Law Commission stated that:
“following the Law of Property and Settled Land Acts 1925 guardianship of the estate became less significant because a legal estate in land can no longer be held by a minor but instead is held by trustees as statutory owners ... a guardian has the right to recover rents and profits from the minor’s land.”[132]
3.21 The
Commission explained that this means that:
“he can control the income due to the infant and any of the personal profit to which the infant is legally as well as beneficially entitled, but is not entitled to receive or exercise powers over property to which the infant has only beneficial title, except income as it becomes payable.”[133]
3.22 The
Commission argued that trusteeship would adequately and more appropriately fill
any gap.[134] However, the
government disagreed and the 1989 Act preserves the High Court’s power to
appoint guardians of the estate of any child but only in accordance with rules
of court.[135]
3.23 Under
the rules of court,[136] only the
Official Solicitor can be appointed as the guardian of the estate of a child.
The appointment can be made only when the consent of the persons with parental
responsibility has been signified to the court or when such consent cannot be
obtained or may be dispensed with. Furthermore, appointments may be made only
in the following circumstances:
(a) where money is paid into court on behalf of the child (in accordance with directions given under rule 12(2), control of money recovered by a person under disability),
(b) where the Criminal Injuries Compensation Board notifies the court that it has made or intends to make an award to the child,
(c) where a foreign court notifies the court that it has ordered or intends to order that money be paid to the child,
(d) where the child is entitled to proceeds of a pension fund, and
(e) where such an appointment seems desirable to the court.
In
practice such appointments are confined to cases where the parents are dead or
where it is unsuitable for them to be
involved.[137]
3.24 The Scottish Law Commission, in its discussion paper on this
area,[138] did not find difficulty
with the existing law which provided that:
“the parent of a child may appoint any person to be guardian of the child after his death, but any such appointment shall be of no effect unless the appointment is in writing and signed by the parent; and the parent at the time of his death was guardian of the child or would have been such guardian if he had survived until after the birth of the child.”[139]
3.25 Section
7(1) of the Children (Scotland) Act 1995 provides that a parent can appoint a
guardian for the child in the event of the parent’s death, provided the
appointment is in writing.
3.26 The Commission supported the inclusion of a provision similar to
section 5(4) of the Children Act 1989. Thus, an elderly grandparent, who is
sole guardian and who is anxious about the arrangements for the child after her
death, could appoint a
replacement.[140] Section 7(2)
provides that:
“A guardian of a child may appoint a person to take his place as guardian in the event of the guardian’s death, but such appointment shall be of no effect unless in writing and signed by the person making it.”
3.27 The Commission received submissions that, where a child was of
sufficient age and maturity, his views should be taken into consideration by a
guardian proposing to appoint a replacement, or by a parent appointing a
guardian. Section 7(6) provides
that:[141]
“Without prejudice to the generality of subsection (1) of section 6 ..., a decision as to the appointment of a guardian under subsection (1)[142] or (2)[143] above shall be regarded for the purposes of that section (or of that section as applied by subsection (5) above) as a major decision which involves exercising a parental right.”
3.28 The
Commission suggested that a child who objected to the appointment of a guardian
could apply to court for the termination of the appointment and, if necessary,
the appointment of someone
else.[144] However, the Act does
not explicitly give the child that right.
3.29 The Commission recommended that a power of revocation of an
appointment of a nominated guardian should be provided for on similar lines to
the provisions in section 6(1) to (4) of the Children Act
1989.[145] Section 8 implements
this recommendation.
3.30 The Commission felt that it was important, in the interests of
the child as well as the guardian, that the guardianship of a child should not
be imposed on anyone who was unwilling to accept it. Scottish law provides that
some act needs to be done expressly by a minute or letter of acceptance
addressed to the executors of the deceased parent or impliedly (from acts which
are not consistent with any other intention) to accept the office of
guardian.
3.31 The Children Act 1989 in England is different, as an
appointment takes effect automatically but can be later disclaimed by an
instrument in writing, which has to be registered in a prescribed way. The
Commission did not agree with this provision as it would involve the guardian,
who may not have been consulted about the appointment, in the inconvenience and
expense of obtaining legal
advice.[146]
3.32 Section
7(3) provides that: “An appointment as guardian shall not take effect
until accepted, either expressly or impliedly by acts which are not consistent
with any other intention.”
3.33 The Commission recommended that
“the rule that where two or more persons have any parental right each of
them may exercise it without the consent of the other or others, unless the deed
or decree conferring the right provides otherwise” should apply where
there were two or more
guardians.[147] Section 7(4)
provides that: “If two or more persons are appointed as guardians, any one
or more of them shall, unless the appointment expressly provides otherwise, be
entitled to accept office even if both or all do not accept
office.”
3.34 If a testamentary guardian has been appointed, then after the
death of the appointing parent, the surviving parent continues to have full
parental responsibilities and rights. The Commission suggested that:
“in many cases it would be expected that the guardian would be content for the surviving parent to exercise parental responsibilities and rights but the guardian would be available, in reserve, just as an absent parent would be, in case of emergencies.”
3.35 However,
in some cases there might be conflict between the guardian and the parent. For
example, “the mother may have been divorced from the father, and may have
appointed her mother or her new husband as guardian. On the mother’s
death the father’s wish to have the child living with him may be resisted
by the grandmother or
stepfather.”[148]
3.36 The
Commission felt that whether this type of case resulted in litigation depended
more on the relationships between the parties, “rather than on whether the
law has a rule precluding a guardian from accepting office during the life of
the surviving
parent.”[149]
3.37 However,
the Commission noted that section 5(8) of the English Children Act 1989 provides
that an appointment of a guardian by one parent does not take effect until the
other parent dies or ceases to have parental responsibility for the child. If
the appointing parent before his death had a residence order in force then the
appointment does take effect. The Scottish Law Commission were concerned that
there would be situations where the parents of a child are separated and yet
have no residence order in force. “The father, for example, may simply
have abandoned his
family.”[150]
3.38 This is also inconsistent with the policy that no order should be
made unless this is necessary in the interests of the child. Section 3(2) of
the Law Reform (Parent and Child) (Scotland) Act 1986 provides that a court
should not make any order relating to parental rights “unless it is
satisfied that to do so will be in the interests of the child”. There is
a similar provision in section 1(5) of the Children Act 1989.
3.39 A
parent who is on good terms with the other parent can provide that an
appointment of a guardian is not to take effect until after the other
parent’s death. The Commission recommended a more flexible solution which
allows a guardian to accept office even if there is a surviving parent in
existence, unless the appointing parent has made specific provision
otherwise.[151] The legislation
also provides that the other parent’s responsibilities and rights
subsist.[152]
3.40 The Commission noted that under the existing law the
parent’s right of guardianship differed from the rights conferred on
non-parental guardians. “The parent’s guardianship did not need to
include rights in relation to the child’s person and day to day
upbringing, which the parent had anyway as parent.” The Commission
suggested that a non-parental guardian might need to have such
rights.[153] The Commission
agreed with the provision in the Children Act 1989 that a guardian should be
given the normal parental responsibilities and rights to enable him or her to
fulfil these
responsibilities.[154] They
accepted the view of the English Law Commission that:
“[P]arenthood should become the primary concept. Any necessary distinctions between parents and guardians who act in loco parentis could then clearly be drawn ....”[155]
3.41 Section
7(5) provides that a guardian will have parental rights and
responsibilities[156] subject to
an order under section 11[157] or
section 86.[158]
3.42 The Commission suggested that:
“although a person should be free to accept or refuse the guardianship of a child, the interests of the child require that, once the guardian has unequivocally accepted office, he or she should not be able to surrender or transfer his or her responsibilities, other than by means of an appropriate court order or orders.”[159]
3.43 Section
8(5) provides that:
“Once an appointment of a guardian has taken effect, under section 7 of this Act, then, unless the terms of the appointment provide for earlier termination, it shall terminate only by virtue of:
(a) the child concerned attaining the age of 18 years;
(b) the death of the child or the guardian; or
(c) the termination of an appointment by a court order under section 11 ....”
[96] Family Law: Review of Child Law: Guardianship (1985, Working Paper No 91, HMSO) at para 2.26.
[97] Section 5(13), the 1989 Act.
[98] Section 5(6), the 1989 Act. The term “parental responsibility” is used under the English Act to describe the bundle of responsibilities owed by the parent towards the child. (The equivalent under our current Hong Kong law is “rights and authority” as referred to in the GMO, section 3. See Chapter 1, above at paras 1.16 to 1.23.)
[99] Section 5(4), the 1989 Act.
[100] English Law Commission’s report, Family Law: Review of Child Law, Guardianship and Custody (1988, Rep No 172, HMSO) at para 2.25.
[101] Guardianship of Minors Act 1971, section 4. The provisions of this Act are similar to the provisions of the Guardianship of Minors Ordinance (Cap 13).
[102] Therefore, an unmarried father without such responsibility would be excluded.
[103] Section 5(3)(4), the 1989 Act.
[104] Section 105(1), the 1989 Act.
[105] Interpretation Act 1978, section 6(c).
[106] Section 6(1), the 1989 Act.
[107] Section 5(7)(a), the 1989 Act.
[108] Section 5(8), the 1989 Act.
[109] Section 5(7)(b), (8)(b), (9), the 1989 Act.
[110] English Law Commission (1988), above, para 2.28.
[111] Section 5(7), the 1989 Act.
[112] Bainham, Children - The Modern Law (1993) at 191-192.
[113] Scottish Law Commission’s discussion paper, Parental Responsibilities and Rights, Guardianship and the Administration of Children’s Property (1990, Discussion Paper No 88, HMSO), paragraph 3.11.
[114] Section 5(5), the 1989 Act.
[115] Section 5(5)(a), the 1989 Act.
[116] Section 6(1), the 1989 Act.
[117] Section 6(2), the 1989 Act.
[118] Section 6(3), the 1989 Act.
[119] Section 6(1) to (4), the 1989 Act.
[120] The 1995 Act has effect as regards an appointment made by a person dying on or after 1 January 1996. See Family Proceedings (Amendment) Rules (SI 1996, No 816) (L1) for changes to the relevant forms.
[121] Section 6(5) and 6(6), the 1989 Act.
[122] Section 5(1) and (2), the 1989 Act.
[123] Section 5(9), the 1989 Act.
[124] Cretney & Masson, Principles of Family Law (5th ed, 1990) at 508.
[125] Section 5(2), the 1989 Act.
[126] White, Carr & Lowe, A Guide to the Children Act 1989 (1990) at para 2.39.
[127] Section 7, the 1989 Act.
[128] Section 6(7), the 1989 Act.
[129] Section 91(7) and (8),.
[130] White, Carr & Lowe, above, at para 2.52.
[131] English Law Commission (1985), above, para 2.23, footnote 95.
[132] English Law Commission (1985), above, para 2.23.
[133] English Law Commission (1985), above, para 2.23.
[134] English Law Commission (1985), above, para 2.24.
[135] Section 5(11) and (12), the 1989 Act.
[136] Rules of the Supreme Court, Order 80, rule 13.
[137] As when the injuries to the child had been caused by the parents.
[138] Scottish Law Commission (1990), above.
[139] Section 4 of the Law Reform (Parent and Child) (Scotland) Act 1986, section 4 (as amended by the Age of Legal Capacity (Scotland) Act 1991, section 10 and Schedule 1 para 41).
[140] Scottish Law Commission (1990), above, para 3.4.
[141] Scottish Law Commission (1990), above, para 3.5.
[142] By a parent.
[143] By an existing guardian.
[144] Scottish Law Commission (1990), above, para 3.5.
[145] Scottish Law Commission (1990), above, para 3.7.
[146] Scottish Law Commission (1990), above, para 3.8.
[147] Scottish Law Commission (1990), above, para 3.15.
[148] Scottish Law Commission (1990), above, para 3.10.
[149] Scottish Law Commission (1990), above, para 3.10.
[150] Scottish Law Commission (1990), above, para 3.11.
[151] Scottish Law Commission (1990), above, at para 3.12.
[152] Section 7(1)(b).
[153] This was in agreement within section 3(5) of the English Children Act 1989.
[154] Scottish Law Commission (1990), above, para 3.13.
[155] English Law Commission (1988), above, para 2.3.
[156] Section 7(5).
[157] An order of the court which can deprive or modify the rights and responsibilities.
[158] This provides for parental responsibilities and rights to be transferred to a local authority, the equivalent of the Social Welfare Department in Hong Kong.
[159] Scottish Law Commission (1990), above, para 3.16.