Chapter 1

Guardianship of children

in Hong Kong

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Introduction

The meaning of “guardianship”

“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 rare¹⁰ but unhappy¹¹ 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

Historical context

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

The concept of guardianship today

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

• the right to live with the child and control the child’s day-to-day upbringing

• the right to decide on the child’s education and religion

• the right to inflict moderate punishment

• the right to administer the child’s property

• the right to act for the child in legal proceedings

• the right to consent to medical treatment.¹⁸

1.6 The scope of parental rights and authority also includes certain statutory rights such as the right to consent to the child’s marriage¹⁹ or to the child’s adoption.²⁰

Guardianship in practice

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

The guardianship provisions of the Guardianship of Minors Ordinance (Cap 13)

Scope of the ordinance

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 children²⁴ 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

Matters for the court to consider

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 ....”

The application of the welfare principle

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

Factors in determining the welfare of the child

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

First and paramount consideration

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.”

Judicial discretion

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

Parental rights and authority

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

Parental rights and authority vis-a-vis each parent

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.

Subject to the welfare principle

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

Diminishing nature of parental rights

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

Shift towards focus on parental “responsibilities”

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.

Appointment of guardians

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.

Removal of surviving parent as guardian

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

Surviving parent’s objections

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.

Unmarried father

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.”

Unmarried father as surviving parent

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.

If unmarried father is not the surviving parent

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.

Grandparents caring for child born outside marriage

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.

Disputes between joint guardians

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.

Guardian of the estate

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 Commission⁶⁰ and the Scottish Law Commission⁶¹ dealt extensively with the rights and duties of a guardian of the estate.

Powers of the Director of Social Welfare

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

Other provisions relating to guardianship

Proceedings concerning a minor

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 appointed⁷¹ 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

Guardianship and wardship

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.

Duties of the Official Solicitor

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

Consent to marry

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.

Chapter 2

Problems with the law

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Introduction

"[Guardianship] is a concept linked to English feudal landownership and so is of little relevance to Hong Kong today."¹

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.”²

2.2 The focus of this chapter is an examination of various shortcomings in Hong Kong's current law on the guardianship of children.

Appointment of guardians

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.

Disclaimer

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.

Veto of the surviving parent

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,³ or it can order that the guardian act jointly with the surviving parent, or to the exclusion of the surviving parent.⁴ 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.

Court appointment of guardian

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.⁵ The power to appoint is therefore limited in its scope.⁶ 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.

Appointment of guardian by 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.

Guardian of the estate

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).⁷ 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.⁸

Chapter 3

The law of guardianship

in other jurisdictions