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Guardianship of Children
(HKLRC Report)

The Law Reform Commission released its report on Guardianship of Children on 18 January 2002. The report deals with the law relating to the appointment of guardians for children in the event of the death of one or both parents. The Commission's focus in reviewing the law of guardianship of children was on recommending ways to simplify the law and procedures in this area, so that more parents will be encouraged to take the positive step of making guardianship arrangements for their children.

The Commission recommends in the report:

  • the introduction of a more simple, standardised procedure for the appointment of guardians for children;

  • widening the court's power to appoint guardians for children, so that any person may apply to be made a guardian of a child, not only in cases where the child has no parent with parental responsibility for him, but also in cases where a custody order for the child has been made in favour of the parent who has now died;

  • removing the current right of the surviving parent to veto a testamentary guardian from acting, so that either the surviving parent or the guardian may apply to the court if there is a dispute between them on the best interests of the child;

  • that a testamentary guardian appointed by the parent who has custody of the child should be able to act automatically as guardian for the child on the death of that parent;

  • that, as far as practicable, the views of the child on the appointment of the guardian should be taken into account;

  • that a child's guardian should be able to appoint a guardian for the child in the event of the guardian's death;

  • that there should be a system for withdrawing from acting as guardian similar to the system for appointing a guardian;

  • that the High Court's power to remove or replace a guardian in the best interests of the child should be extended to the District Court.

The Guardianship of Children report is the first in a series of four reports to be published by the Commission under its reference on guardianship and custody of children. These reports follow detailed consideration by the Commission of responses to a consultation paper issued by the LRC's Sub-committee on Guardianship and Custody, chaired by the Hon Ms Miriam Lau, in December 1998. The three remaining reports under this reference, on parental child abduction, mediation, and custody and access were published in April 2002, March 2003 and March 2005 respectively.

Press Release (PDF) (MS Word)
Executive Summary (PDF) (MS Word)
Report (PDF) (MS Word)

Important Notices