A guardian is a person who is legally entitled to parental rights and duties in relation to a child. Guardianship is a bundle of rights, duties and authority of a parent towards a child, including the right to make decisions and to be consulted on decisions about the upbringing of a child.
In so far as statutory provisions are concerned, appointment, removal and powers of a guardian is governed by Guardianship of Minors Ordinance (“GMO”). In cases of disagreements between two or more persons acting as joint guardians of a minor on matters affecting the minor’s best interests, the Court may decide on such matters on the application of either guardian.
The relevant sections under GMO enable the Court, and the parent or the guardian of a minor to appoint any person to be guardian of that minor. For persons appointed by parents or guardians, the appointment has no effect unless the person being appointed accepts the office. Regardless, these appointments are only limited to situations after the death of the minor’s parent or that of the minor’s guardian. In other words, there is no statutory regime for the minor’s living parents to appoint a third party to be the minor’s guardian.
Whether the Court has inherent jurisdiction in appointing an additional guardian for a minor during the lifetime of that minor’s parent or guardian is explored in AA v. BB [2021] HKCFI 1401. This case concerns an application made by the biological mother of two children, for the Court to grant parental rights to her prior same-sex partner, who has been equally involved in the two children’s life as a mother prior to separation. The Court exercised its inherent jurisdiction to grant the non-biological parent of the children guardianship rights, having accepted that the non-biological parent is also a “natural”, psychological and social parent of the children.
While parents can appoint a third party as a permanent guardian for their children upon their death, in circumstances where the parents are temporarily unable to provide care for and/or separated from their children, the parents may consider appointing their family members or friends to be temporary guardians to look after the children and to make decisions in place of the parents, on a short-term basis. This is to avoid the children being cared for by social services between the time when the parents are unable to take care of the children and/or before the permanent guardian takes over. Such appointment should be by way of deed, signed by the appointing parent and attested by two witnesses.