Hong Kong Law Reform Commission

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Annex 2 - Relevant overseas provisions

This Annex sets out the relevant sections from the comparative statutes, the English Children Act 1989 and the Children (Scotland) Act 1995 which are referred to in the recommendations of this report contained in Chapters 4 and 5.

Recommendation 1 – Appointment of guardian

Children Act 1989, section 5(5):

"(5) An appointment under subsection (3) or (4) shall not have effect unless it is made in writing, is dated and is signed by the person making the appointment or –

(a) in the case of an appointment made by a will which is not signed by the testator, is signed at the direction of the testator in accordance with the requirements of section 9 of the Wills Act 1837; or

(b) in any other case, is signed at the direction of the person making the appointment, in his presence and in the presence of two witnesses who each attest the signature."

Recommendation 4 – Views of child on appointment of guardian

Children (Scotland) Act 1995, section 7(6):

"(6) Without prejudice to the generality of subsection (1) of section 6 of this Act, a decision as to the appointment of a guardian under subsection (1) or (2) 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."

(see also, for reference only, section 6(1):

(1) A person shall, in reaching any major decision which involves –

(a) his fulfilling a parental responsibility or the responsibility mentioned in section 5(1) of this Act; or

(b) his exercising a parental right or giving consent by virtue of that section,

have regard so far as practicable to the views (if he wishes to express them) of the child concerned, taking account of the child's age and maturity, and to those of any other person who has parental responsibilities or parental rights in relation to the child (and wishes to express those views); and without prejudice to the generality of this subsection a child twelve years of age or more shall be presumed to be of sufficient age and maturity to form a view.)

Recommendation 6 – Court appointment of guardian

Children Act 1989, section 5(1):

"(1) Where an application with respect to a child is made to the court by any individual, the court may by order appoint that individual to be the child's guardian if –

(a) the child has no parent with parental responsibility for him; or

(b) a residence order has been made with respect to the child in favour of a parent or guardian of his who has died while the order was in force."

Recommendation 7 – Appointment of guardian by guardian

Children Act 1989, section 5(4):

"(4) A guardian of a child may appoint another individual to take his place as the child's guardian in the event of his death."