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Hong Kong Law Reform Commission |
4.1 In Chapter 1, we examined the provisions of Hong Kong’s
law on the guardianship of children. In Chapter 2, we identified various
limitations in the law which should be addressed. Changes which have been
introduced in the United Kingdom were examined in Chapter 3. In this chapter,
we review the relevant findings of our consultation exercise and set out our
conclusions and recommendations for reform in this area.
4.2 Section 6(1) of the Guardianship of Minors Ordinance (Cap 13)
provides that a parent may appoint a guardian by deed or will. In contrast,
section 5(5) of the Children Act
1989[160] in England provides that
parents who have parental
responsibility[161] may appoint
guardians by a document in writing, with their signature attested by two
witnesses, without the need to make a formal will or deed. This avoids
technicalities and facilitates appointment, as many people do not make a
will. We consider that a guardian should be able to be appointed by a
simple process which is not legalistic. We therefore recommended in the
consultation paper the adoption of a similar provision to section 5(5) of the
Children Act 1989.
4.3 Concern was expressed by some members of the Sub-committee that a
parent may appoint a person as testamentary guardian without having first
informed that person or obtained his consent, and that this was not in the best
interests of the child. We agree that there must be a recognised system to
enable a third party to determine that a person has acknowledged his appointment
as a guardian. A requirement of formal consent would bring home to the guardian
the seriousness of the parental responsibility that he was taking on for the
child.
4.4 We recommended in the consultation paper the introduction
of a standard form for the appointment of a guardian, which should explain
briefly a guardian’s responsibilities and be signed by the proposed
guardian. These forms could be made available at the Legal Aid Department and
the District Offices where the Free Legal Advice Scheme of the Duty Lawyer
Service operate. They could also be made available on the Internet.
4.5 We also recommended in the consultation paper that the guardian
should have to accept office as guardian expressly or impliedly if he has not
formally consented to act as guardian. This could also be achieved by the
completion of a form.
4.6 Overview. In general, all of the recommendations relating
to guardianship proposed by the Sub-committee were welcomed by the consultees.
It was agreed by many that encouraging parents to make well-considered
arrangements for their children in the unfortunate event of the parents dying,
would certainly be in children's best interests.
4.7 Of the concerns
that were raised, the focus appeared to be on the balance that would need to be
struck in some circumstances[162]
between the rights and authority of the surviving parent and those of the
appointed guardian representing the wishes of the deceased parent. A few
respondents cautioned that some of the
proposals[163] might create an
inherently adversarial situation in practice between the surviving parent and
the guardian, resulting in more painful litigation for the surviving parent and
the child.
4.8 Appointment of guardian. In relation to the
specific proposals under this head, most of the respondents who commented on the
proposals supported them. The Legal Aid Department went on to mention
that it would be helpful if the guardianship forms available publicly had an
explanatory pamphlet attached, and that they were made available also at
district offices and through the Law Society and the Social Welfare Department.
We agree with the Department and trust that the proposals of making the forms
standard, simple, easily understood and widely available will be taken up by the
Administration in the future.
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Recommendation 1 We recommend: (a) the adoption of a provision similar to section 5(5) of the English Children Act 1989[164] that parents who have parental rights and authority may appoint guardians by a document in writing, with their signature attested by two witnesses, without the need to make a formal will or deed; (b) the introduction of a standard form for the appointment of a guardian, which should explain briefly a guardian’s responsibilities and be signed by the proposed guardian. (These forms could be made available, for example, at the Legal Aid Department and the District Offices where the Free Legal Advice Scheme of the Duty Lawyer Service operates, and on the Internet); (c) that the guardian should have to accept office as guardian expressly or impliedly if he has not formally consented to act as guardian. This could also be achieved by the completion of a form. |
4.9 Section 5 of the Guardianship of Minors Ordinance (Cap 13) gives
power to appoint a guardian where a testamentary guardian refuses to act. There
is no provision for a guardian to disclaim. In England, a guardian who does not
want to act as such may disclaim by an instrument in writing under section 6(5)
of the Children Act 1989.[165]
The Scottish Act provides that an appointment cannot take effect unless accepted
expressly or impliedly by acts which are not consistent with any other
intention.[166]
4.10 We recommended in the consultation paper that there should
be a system for withdrawing from acting as a guardian similar to the system for
appointing a guardian. If the proposed guardian had already consented to act,
by signing the appropriate form, then he would have to formally disclaim the
appointment if he did not want to act at a later time. The disclaimer should be
formal, in writing, and notified to the executor or administrator of the estate.
The Director of Social Welfare should be notified of the disclaimer if there is
no executor, administrator or surviving parent, so that steps could be taken to
protect the best interests of the child.
4.11 Most of the respondents who commented on this recommendation
expressed unequivocal support for it. Resource The Counselling Centre
noted, however, that accepting an appointment as a child's guardian should be
treated as a very serious commitment by the individual appointed. The Centre
was concerned at the emotional effect that a disclaimer might have on the child,
particularly if the guardian disclaimed after having already taken up the
role.
4.12 We have considered these comments and, while agreeing that
the effects of a disclaimer in the situation described above may be very
unfortunate, feel that there can be no restrictions on the making of a
disclaimer. We are of the view that the appointed guardian cannot be forced,
either into assuming the appointment, or into not resiling from it once he has
embarked upon the appointment. We do agree, however, that it would be useful if
public information pamphlets on the obligations of guardians were produced, in
an effort to educate the public as to the serious nature of the obligations that
the guardian agrees to take on.
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Recommendation 2 We recommend that there should be a system for withdrawing from acting as a guardian similar to the system for appointing a guardian. If the proposed guardian had already consented to act, by signing the appropriate form, then he would have to formally disclaim if he did not want to act at a later time. The disclaimer should be formal, in writing, and notified to the executor or administrator of the estate. The Director of Social Welfare should be notified of the disclaimer if there is no executor, administrator or surviving parent, so that steps can be taken to protect the best interests of the child. |
4.13 We consider that there is a need for change to the right of the
surviving parent to veto the testamentary guardian under section 6(2) of the
Guardianship of Minors Ordinance (Cap
13).[167] It seems that the
appointment of a testamentary guardian has no effect if the surviving parent
objects. The result of this veto is that the testamentary guardian is forced to
bring the matter to the court. The court may refuse to make an order which
results in the surviving parent remaining sole
guardian.[168] Alternatively, the
court can order that the guardian act jointly with the surviving parent or to
the exclusion of the surviving
parent.[169]
4.14 The surviving parent does not have the right to take the
initiative to go to court under this section. We cannot find any circumstances
to justify barring the surviving parent from seeking a remedy from the court if
he objects to the testamentary guardian acting. In those circumstances, the
court will decide the matter, by applying the welfare
principle.
4.15 We recommended in the consultation paper that the
right to veto of the surviving parent in section 6(2) of the Guardianship of
Minors Ordinance (Cap 13) should be removed. Then, either the surviving parent
or guardian could apply to a court under section 6(3) if there is a dispute
between them on the best interests of the child.
4.16 There was general support for this recommendation. However, a
few respondents were not in favour and queried whether it was appropriate for
the deceased parent's wishes in relation to the child to in effect prevail over
those of the surviving parent, particularly in cases where the parents had
separated or divorced.
4.17 The Hong Kong Family Welfare Society
did not object to the recommendation, but felt that parents should be encouraged
to agree amongst themselves as to who should be appointed as their respective
testamentary guardians, through mediation if necessary, to avoid future
conflicts arising on this issue.
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Recommendation 3 We recommend that the right to veto of the surviving parent in section 6(2) of the Guardianship of Minors Ordinance (Cap 13) should be removed. Then, either the surviving parent or the guardian could apply to a court under section 6(3) if there is a dispute between them on the best interests of the child. |
4.18 Section 7(6) of the Children (Scotland) Act
1995[170] provides that a decision
on appointment of a guardian is treated as a major decision which involves
exercising a parental right under section 6 of the Scottish Act. Section 6
provides that the views of the child should, so far as practicable, be taken
into account in making a major decision. This is more relevant to an older
child and is a reasonable provision considering that, if the parents are
divorced, the guardian will be caring for the child. We recommended in the
consultation paper that a similar provision to section 7(6) of the Children
(Scotland) Act 1995[171] be
introduced so that the views of the child on the appointment of the guardian
might be taken into account.
4.19 This recommendation was unanimously supported by those
consultees who commented on it.
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Recommendation 4 We recommend that a similar provision to section 7(6) of the Children (Scotland) Act 1995[172] be introduced so that the views of the child on the appointment of the guardian may, so far as practicable, be taken into account. |
4.20 In England, guardians appointed by the parent or the court
have parental responsibility under the Children Act
1989.[173] The Children
(Scotland) Act 1995 has a similar
provision.[174] Section 5(8) of
the Children Act 1989[175]
provides that the testamentary guardian only has parental responsibility after
the death of the surviving
parent,[176] unless the deceased
parent had a residence (custody) order in his favour, or was the only parent
with parental responsibility.[177]
4.21 We identified some difficulty with this provision, as the
testamentary guardian could not act if the deceased parent, before his death,
had had the child living with him exclusively but had not applied to court for a
custody order. (The parties may have had an informal agreement, or signed a
mediation agreement which was not converted into a consent order.) Limiting the
care of a child to the surviving parent may not be in the best interests of the
child as the surviving parent may have been irresponsible towards the child.
4.22 We noted the disadvantages of the English provision for these
practical reasons.[178]
The purpose of appointing a guardian was for the guardian to take office
after the death of the parent making the appointment. It was thought futile for
a parent to appoint a testamentary guardian if that guardian could only take
office after the death of the surviving parent. The Scottish Law Commission
felt that the appointed guardian should be allowed to act after the death of the
appointing parent, even if the other parent was still
alive.[179] Any dispute between
the testamentary guardian and the surviving parent could be resolved by the
court.
4.23 In Hong Kong, the role of the extended family in the
upbringing of children is still apparent. It may be more appropriate that a
guardian should be allowed to act even if there is a surviving parent, as
already provided for in sections 5 and 6 of the Guardianship of Minors Ordinance
(Cap 13). We are of the view that it is in the best interests of the child that
the testamentary guardian should not have to wait until after the death of the
surviving parent to take steps to act as guardian of the child.
4.24 We recommended in the consultation paper that if a parent had
obtained a custody order prior to his death, then a testamentary guardian
appointed by that parent should be able to act automatically as testamentary
guardian on that parent’s death. If the access parent were to be unhappy
with this situation he could apply to court to determine the custody of the
child.
4.25 In order to cover cases where there was no custody
order, we also recommended in the consultation paper that a testamentary
guardian should be able to act on the death of the parent who appointed the
testamentary guardian if the child was residing with that parent prior to his
death. In this situation, the appointment of the testamentary guardian would
not take immediate effect on the death of the parent but the testamentary
guardian would need to take the pro-active step of obtaining the court’s
permission. This option is more practical and avoids the rigidity of section
5(8) of the English Children Act
1989[180] of depriving the
testamentary guardian of his responsibilities until after the death of the
surviving parent.
4.26 This recommendation proved to be controversial with respondents.
The Hong Kong Council of Social Service was concerned that the
assumptions on which this proposal was based (ie, the prevalence of
extended-family care arrangements in Hong Kong, and the need to protect the
child from possibly irresponsible access parents) were valid in only a limited
number of cases, while the recommendations would have general application.
The Hong Kong Young Women's Christian Association stated that the views
of the child and the interests of the surviving parent in having the custody
order, should take priority over that of the third-party testamentary guardian.
Other respondents reiterated the concerns expressed earlier that the proposals
might be setting up an adversarial situation between the surviving parent and
the guardian.
4.27 Having considered these views, we are still in
support of the recommendation as we feel that it would be the best way to ensure
continuity of residence for the child.
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Recommendation 5 We recommend that: (a) a testamentary guardian should be able to act on the death of the parent who appointed the testamentary guardian if the child was residing with that parent prior to his death. The appointment of the testamentary guardian would not take immediate effect on the death of the parent, but a pro-active step of obtaining the court’s permission would have to be taken by the guardian; (b) if a parent had obtained a custody order prior to his death, then a testamentary guardian appointed by that parent should be able to act automatically as testamentary guardian on that parent’s death. |
4.28 Section 7 of the Guardianship of Minors 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.[181] In England, section
5(1) of the Children Act 1989[182]
provides that any individual who wishes to be a guardian may apply to the court
to be appointed if the child has no parent with parental responsibility for him
or a residence order had been made in favour of the parent who has now
died.[183]
4.29 We
recommended in the consultation paper that section 7 of the Guardianship of
Minors Ordinance be repealed and a similar provision to section 5(1) of the
Children Act 1989, with regard to the appointment of a guardian, be
enacted.
4.30 This proposal was unanimously supported by those who responded
under this head.
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Recommendation 6 We recommend that section 7 of the Guardianship of Minors Ordinance be repealed and a similar provision to section 5(1) of the English Children Act 1989,[184] with regard to the appointment of a guardian, be enacted. |
4.31 It does not seem that there is any statutory provision in Hong
Kong allowing a guardian to appoint a guardian to act for him in the event of
his death. In England, however, section 5(4) of the Children Act
1989[185] provides that a guardian
may appoint a guardian to take his place as the child’s guardian in the
event of his death. We recommended in the consultation paper the adoption of a
provision along the lines of section 5(4) of the Children Act 1989.
4.32 Though generally supported as being likely to provide the best
continuity of care for the child, there was some opposition to this proposal
from respondents who commented on it. Dr N Y Chau felt that in the event
of the custodial parent's death, "priority should be given to the surviving
parent, unless he/she is proven to have problems which contravene what is
required of a decent parent, or to [have] voluntarily forfeited his/her
custodial right."
4.33 We have duly considered these arguments, but
conclude that our original proposal will, on balance, best serve the interests
of the child.
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Recommendation 7 We recommend the adoption of a provision along the lines of section 5(4) of the English Children Act 1989 allowing a guardian to appoint a guardian for the child in the event of the guardian's death.[186] |
4.34 Section 8 of the Guardianship of Minors Ordinance (Cap 13)
provides that the High Court may remove or replace a testamentary guardian or
any guardian appointed or acting under the Ordinance if it is satisfied that it
is for the welfare of the child. Section 6(7) of the Children Act 1989 provides
that the child, or any person with parental responsibility, or the court itself,
may apply to terminate the appointment of a guardian. We recommended in the
consultation paper that section 8 of the Guardianship of Minors Ordinance should
be retained, but that it should be amended to give similar powers to the
District Court.
4.35 This proposal was unanimously supported by those who commented
on it.
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Recommendation 8 We recommend that section 8 of the Guardianship of Minors Ordinance should be retained, but that it should be amended to give similar powers to the District Court. |
4.36 Section 18 of the Guardianship of Minors Ordinance (Cap 13)
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).[187] The English Law
Commission recommended that trusteeship should fill any gaps in
the provisions for guardian of the
estate.[188] Section 5(11) of the
Children Act 1989 preserved the power to appoint a guardian of the estate.
Rules of court gave the right to exercise the power to the Official Solicitor.
The Scottish Law Commission and the Children (Scotland) Act 1995 made detailed
provisions as to the administration of a child’s estate which do not seem
relevant to Hong Kong.
4.37 The Official Solicitor Ordinance (Cap 416)
sets out the jurisdiction of the Official Solicitor with regard to property
matters. We note the power in Order 80 rule 13 of the English Rules of the
Supreme Court, which provides that only the Official Solicitor can be appointed
as guardian of the estate of a child. Although there is no equivalent power in
Hong Kong, this does not appear to have hampered the Official Solicitor in the
exercise of his duty. In the consultation paper, we welcomed views as to
whether the Official Solicitor has sufficient powers to act as guardian of the
estate and whether any reform was necessary.
4.38 We received no adverse
comments from those who responded under this head.
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Recommendation 9 We recommend the retention of the status quo in relation to the powers of the Official Solicitor to act as guardian of the estate. |
[160] See Annex 2, below, for the text of the provision.
[161] Thus an unmarried father would not be able to appoint a guardian unless he had been granted parental responsibility by agreement or court order.
[162] For example, where the parents were divorced and the deceased parent had had custody of the child prior to that parent's death.
[163] In particular, the recommendations below regarding: the surviving parent's veto, when the appointment of the guardian takes effect and the appointment of guardians by guardians.
[165] See Annex 2, below, for the text of the provision.
[166] Children (Scotland) Act 1995, section 7(3).
[167] See Chapter 1, above.
[168] See section 6(3)(a), GMO.
[169] Section 6(3)(b), GMO.
[170] See Annex 2, below, for the text of the provision.
[171] See Annex 2, below, for the text of the provision.
[173] Children Act 1989, section 5(6).
[174] Children (Scotland) Act 1995, section 7(5).
[175] See Annex 2, below, for the text of the provision.
[176] See discussion on this provision in Chapter 3, above.
[177] Children Act 1989, section 5(7)(b). The situation of one parent having parental responsibility would arise where an unmarried mother had not signed a parental responsibility agreement with the father, or the court had not ordered the father to have parental responsibility. A dispute between the surviving parent and the guardian can be resolved by an application under section 8 of the Children Act 1989.
[178] The Scottish Law Commission also took this view. See Chapter 3, above.
[179] See section 6(2), GMO.
[180] See Annex 2, below, for the text of the provision.
[181] This would be a reference to an unmarried father who had obtained an order under section 3, GMO, granting him parental rights or authority.
[182] See Annex 2, below, for the text of the provision.
[183] For full text see Annex 2, below.