The increasing number of French couples settling down in Hong Kong with children or having children in Hong Kong has led us many times in the past to deal with the issue of legal guardianship and how to deal with it in the unfortunate event that one of the parents or both die. Concerns about this possibility have been heightened recently during the COVID-19 pandemic. Some clients have inquired about their options should one or both of the parents fall ill.
To answer their questions, we have to explore the laws of France and Hong Kong.
LEGAL GUARDIANSHIP IN FRANCE
Marital Status of Parents
In France, the marital status of the parents has no relationship to the legal rights and responsibilities of the parents with regard to their children. Mother and father, married or not, are treated equally. This principle is called parental authority (autorité parentale).
Appointing Legal Guardians in France
You can appoint legal guardians for your children in writing, in a will registered with your French Notary. If you do not appoint a legal guardian, upon the death of both parents, a Family Committee will be set up to appoint such guardian and deal with issues relating to the children.
Current Status of the Law
The current law, which dates back to 15 October 2015, entrusts the surviving parent or the legal guardians with wider powers than previously afforded a surviving parent. Prior to 2015, control by the Courts was the rule. This meant that the surviving parent of children under 18 had the burden of dealing with all the consequences of the death of his/her spouse as well as administering the estate, and had to seek the Court’s approval before making decisions relating to the estate of children under the age of 18. This situation led to a backlog of cases in family courts with complications in legal guardianship cases, where authorisations failed to be delivered on time, for example, permission to sell a property.
With the 2015 law, the surviving parent or legal guardian now seems to have been entrusted with even more powers than for instance a couple in charge of administering an estate left to their children by a member of the family, who will be required to act jointly.
The surviving parent or the legal guardian has a general obligation to represent the children and administer their estate. As long as the children’s costs are met, the parent/ legal guardian are under no obligation to invest to grow the children’s assets. They are, however, accountable to some extent for the proper management of the assets and have to present certified accounts to the Courts at least once a year.
Article 387 of the French Civil Code provides guidance on how the assets should be managed by listing the situations for which the authorisation of a judge is required prior to using a child’s assets: sale of property, payment of a mortgage, renounce to a right, renounce rights in an inheritance, sign a deed, for example.
Powers of a Child under the Age of 18
In France, a child under 18 can make some decisions without the assistance of a legal guardian. He/she can, for instance, change his/her name if he/she is over 13, can declare the birth of his child, and can authorise medical procedures.
LEGAL GUARDIANSHIP IN HONG KONG
The Law in Hong Kong
In Hong Kong, Legal Guardianship is governed by the Guardianship of Minors’ Ordinance (Cap. 13 of the Laws of Hong Kong). Pursuant to that ordinance, the interests of the children are paramount in making guardianship decisions, whether they be made by the parents in advance or by the courts in nominating or removing Legal Guardians.
Parental Rights in Hong Kong
Married parents have the same rights and obligations with regards to their children in Hong Kong, but, unlike France, unmarried parents are treated differently: the mother is automatically entitled to parental rights and authority, but the father will have to petition the Courts to be granted the same rights. We would advise French nationals living together in Hong Kong to consider whether it may be necessary to take this step.
Appointment of a Legal Guardian
We always recommend that parents appoint Legal Guardians for their minor children, even in the absence of a pandemic, as it is part of good estate planning, especially if they live in a foreign country. In Hong Kong a document entitled Deed of Appointment of Guardianship can easily be drafted with the help of a solicitor. This will avoid your children being taken into care until it is possible for the court to appoint the best possible person to take care of them.
The selection of a Legal Guardian is an important decision and there are many considerations. Some may want to select a beloved grandparent or cherished aunt or close friend. Be mindful of the individual’s age, health status, and relationship with the child. In addition, after making selections, consider whether you should make changes to the selection of guardian as time goes on. Finally, as the Legal Guardian will take parental responsibility of the children until they reach the age of 18, we recommend that you discuss this commitment with the preferred guardian prior to their appointment to ensure they are willing to so act.
If the Legal Guardians of your children do not live in Hong Kong, it will be necessary to appoint temporary guardians, to look after the children until they can be reunited with their Legal Guardians.
Concerns of French Parents who Live in Hong Kong
Given the growing COVID-19 pandemic, we have been asked by some clients what would happen to their children if they, the parents, were to be quarantined, incapacitated, or pass away while living in Hong Kong.
Shelter at Home or Quarantine Orders
In the event of a shelter at home or quarantine order, we believe there is no need for a written document in such a case, since the parents are still alive and capable of expressing their wishes. In addition, we have observed over the last few weeks, that the children are usually quarantined with their parents at home or, when necessary, in special centres. In any case you will be able to express yourself and find a solution for your children.
Incapacitation of Both Parents
The situation is more dire if both parents are in a critical situation and unable to express their wishes.
However, with regard to the current COVID-19 situation, planning ahead for the caring of our children may not be as straight forward since the children may also be affected by the virus, and the legal guardians appointed may not be able or allowed to take the children into their care.
Given the current transmission rate in Hong Kong, this circumstance would be highly unlikely at this stage in Hong Kong. We, therefore, advise using all measures recommended by the Hong Kong government to reduce exposure to the virus: social distancing, handwashing, wearing masks, and staying at home when possible.
PRIVATE INTERNATIONAL LAW
Article 8 of the European Regulation n° 2201/2003 of November 27th November 2003 “Brussels II”
In international law, we face difficulties in dealing with conflicts of laws, that is to say establishing which law is applicable, in our case between Hong Kong and French Law.
In France, we refer to the EU Regulation Brussels II, which provides that the country of the child’s residence will determine jurisdiction over Legal Guardianship matters. It may, however, be possible to choose another jurisdiction, if the interest of the child dictates that another jurisdiction may be more suitable, but the change of jurisdiction must be requested by the person responsible for the child and done early on in the process.
Brussels II will be replaced on 1 August 2022 by a new regulation, which was passed on 25 June 2019.
Brussels II enables a French Court to declare that it would be in the interest of a child for a foreign judge to have jurisdiction. It is not an obligation, but merely a possibility (Article 15 of Brussels II). Furthermore, once the foreign court has jurisdiction, the Court will apply its own law, and will have no obligation to apply the law of the foreign jurisdiction.
What will be the law applicable to the situation where French children are living in Hong Kong at the date of their parents passing away?
In the event both parents pass away, and beneficiaries of the estate are under 18, French law requires an authorisation of the Courts for the children to be able to accept the estate of the parents, even in the presence of a designated Legal Guardian.
This means that, pursuant to Brussels II, the French Court will require the Hong Kong Courts to authorise the children to accept the estate, since they are living in Hong Kong. However according to Hong Kong law, since the child is domiciled in France, it has not got jurisdiction to do so.
It is also very common to need to sell shares in a French company as part of managing an estate. If the children shareholders are living in Hong Kong, the French Courts will probably request an authorisation from the Courts in Hong Kong to sell the shares.
These are a few examples that par families can face. This is where a carefully drafted will may come in handy.
As you can see from the above-mentioned examples, it is always advisable for parents to plan for the care of their children should the parents no longer be able to do so. We recognise that this type of planning may be uncomfortable, but doing so ensures that your children will be cared for by the guardians of the parent’s choice and you can make your wishes clear to your extended family. With cross-border cases, you will also need assistance in order to navigate between the requirements of the different jurisdictions.
The current situation is not easy to deal with, but we at JC Legal are here to assist you in making these decisions and dealing with these situations in times of need.
The above is brought to you by Sarah Jane Tasteyre and Kimberly Ann Dasse, family law practitioners at JC Legal. Sarah Jane is a French lawyer and Kimberly Ann Dasse practises in Hong Kong. They both deal with cross-border cases on a regular basis.