Introduction

Nowadays, some children are left to the care of third parties (e.g. grandparents) after their parents broke up. Can these third parties apply to the court to be guardian of the children? How should the application be made?

In the case CLP v CSN [2016] 6 HKC 234, the Court of Appeal (the “Court”) upheld the decision of the Family Court that the court has no jurisdiction to appoint a grandmother as the guardian of a child under section 8D(2)(b) of the Guardianship of Minors Ordinance (Cap. 13) (“GMO”) when the child’s natural parents are both alive but missing and not prepared to perform their parental duties.

Background

The applicant is the grandmother (the “Grandmother”) of a child aged nine (the “Child”). The mother of the Child (the “Mother”) is the daughter of the Grandmother. The father of the Child (the “Father”) and the Mother were not married at the time when the Child was born. After giving birth to the Child, both the Mother and the Father left the Child to the care of the Grandmother and disappeared from the scene.

The Grandmother applied to be appointed as guardian of the Child because, without being appointed as guardian, she had difficulties in arranging for education and obtaining travel documents for the Child.

The Law

Section 8D(2) GMO provides that:

“(2) On application by any person, the court may, if it thinks fit, appoint the person to be the guardian of a minor if—

… (b) the minor does not have any parent, guardian or other person having parental rights with respect to the minor.”

The Decision

Whether the court has jurisdiction to appoint the Grandmother as the guardian depends on the construction of section 8D(2)(b) GMO. In order for the court to have jurisdiction to appoint the Grandmother as guardian of the Child, the Grandmother has to satisfy the court that the 3 categories of persons mentioned in section 8D(2)(b) GMO, namely, a parent, a guardian, or any person having parental rights over the Child, do not exist.

Who has parental rights over the Child?

In respect of married couples, pursuant to section 3(1)(b) GMO, father and mother have the same parental rights and authority over their child. However, in respect of unmarried couples, pursuant to section 3(1)(c) GMO, a mother has the same parental rights over the child as if the child was legitimate but a father would only have such rights and authority over the child as may have been ordered by a court on an application brought by the father under GMO. In this case, the Mother has parental rights over the Child but the Father does not, because the Father has never applied for the custody of the Child.

Since the Mother is still alive and she is a person with parental rights over the Child, the Child cannot be regarded as a minor without parents, guardian or other person having parental rights with respect to her. Therefore, the conditions under section 8D(2)(b) GMO were not satisfied and therefore the court has no jurisdiction to appoint the Grandmother as guardian of the Child in this case.

Although the Court agrees that best interest of the child is the first and paramount consideration in determining custody and upbringing of child and the same is emphasised in GMO itself and the Hong Kong Bills of Rights which is entrenched in the Basic Law, it held that such consideration cannot carry this case further.

Therefore, the Court, with regret, upheld the rejection of the application by the Grandmother.

The Alternative

The Court, however, pointed out that the Grandmother is not without remedy. The Court noted that the Grandmother might seek assistance from the Director of Social Welfare, to apply to the court under section 10 GMO, to grant custody and right of access to the Child to the Grandmother.

Looking Forward

The Court also noted that the disappointing outcome of this case might be avoided in the future after the draft Children Proceedings (Parental Responsibilities) Bill (the “Bill”) is passed. The Bill will remove the limitation on rights of third parties (such as grandparents) to apply for court orders in relation to a child and allow a person with whom the child has lived for a period of at least 365 days to apply to the court for a child arrangement order.

Therefore, if this case happened after the Bill was passed, the Grandmother might very likely be granted a child arrangement order to resolve the difficulties she is now facing in taking care of the Child. The Bill will give a proper channel for third parties who would like to take care of the unattended children to arrange care of such children and assist the court to better protect the benefits of such children. In light of the fragile relationship between parents, this would be a great step forward in children protection.

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.