II. Parental rights and duties
The rights and authority over the child arise from the fundamental duty of the parents to ensure, guard and promote the best interest of the child. Children are vulnerable and dependent upon their parents for protection and nurturing of development. Parents have rights over the child and his/her property and such parental rights exist until the child reach the age of majority (the age of 18 years old in Hong Kong). These parental rights include parents’ decision on the child’s religion, education, discipline, medical treatment and accommodation. Parents could not transfer their parental rights and any agreement to give up parent rights are unenforceable.
The following persons may exercise parental rights and duties:
- both the married parents;
- an unmarried mother;
- an unmarried father by order of the court;
- adoptive parents or prospective adoptive parents given interim custody;
- a woman impregnated with the assistance of medical treatment to carry a child (such as artificial insemination) and her consenting husband or male partner;
- gamete (sperm or egg) donor and their consenting married partners granted parentage by parental order;
- a guardian appointed by court;
- the Director of Social Welfare (on a parent signing the general form of consent to adoption, after a freeing order granted without consent of the parent, appointed by the Juvenile Court for protection of the juvenile or by the court in proceedings under Matrimonial Causes Ordinance (Cap. 179) or Matrimonial Proceedings and Property Ordinance (Cap. 192)).
Under section 3 of the Guardianship of Minors Ordinance (Cap. 13), the rights and authority of mother and father will be equal and be exercisable by either without the other. That means their rights and authority are not dependent upon each other and could be exercised independently. However, for illegitimate children, the mother would have the same rights and authority as if the children are legitimate while the father could obtain some or all of the rights and authority on application to court. Neither parent has the authority to unilaterally make the more important decisions in relation to the child and neither party has pre-emptive right over the other. Thus, a spouse cannot unilaterally make decisions for their child without the consent of the other half, even if custody has been granted solely to one party. The parties could apply to the court for differences not settled.