Sessional_Paper_1935 — Page 285

Sessional Papers 議政定例兩局文件 All

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referred to above. The section was repeated in the same form in the consolidating Protection of Women and Girls Ordinance, 1897, Ordinance No. 4 of 1897, and the Objects and Reasons contained the following surprising paragraph :-

Section 24 (the section in question) is a reproduction of Ordinance 14 of 1891, Section 4, and prevents parents, after selling their children and spending the money, from claiming them back even when adopted by the purchaser."

In 1910 the interests of the girl and the discretion of the Registrar General reappeared, and the section was enacted by Ordinance No. 15 of 1910 in what is now practically the form in which it appeared later in Ordinance No. 4 of 1897. That form, however, was not quite satisfactory, especially in view of the provisions of the Female Domestic Service Ordinance, 1923, Ordinance No. 1 of 1923. Section of this Ordinance therefore substitutes a new form of the section.

In the first place, the section in Ordinance No. 4 of 1897 negatived Far. 7. in undesirably wide terms the right of a parent to the custody of the girl where the parent had parted with the girl for the purposes of adoption into another family, or had received money for parting with the custody of the girl for any purpose. The new Section 32 does not expressly negative any right on the part of the parent, but merely vests the guardianship of the girl in such a case in the Secretary for Chinese Affairs. It empowers the Secretary for Chinese Affairs as legal guardian to make any order regarding the custody of the girl which he may think desirable in her interests, subject to one qualifica- tion which is referred to below. In making any such order the Secre- tary for Chinese Affairs would no doubt give full weight to the natural and moral claim of the parent to the custody of the girl. Thus, the Secretary for Chinese Affairs will still have the full rights of a legal guardian, but there will be no provision to suggest that the natural claims of the parent have been extinguished. Further, there will be nothing to suggest that the parent could not successfully assert a claim as against a third party to the custody of the girl if the Secretary for Chinese Affairs were not to exercise his legal right of guardianship.

In the second place the former section appeared to give the Par. 8. Secretary for Chinese Affairs the full and unfettered right of a legal guardian. Section 10 of Ordinance No. 1 of 1923, however, con- siderably limits his right to refuse to restore a girl who is a Mui-tsai to the custody of her parent or natural guardian. There was a dis- tinct conflict here between the two Ordinances. No doubt the later Ordinance would prevail, but it is advisable to make that position quite clear. Accordingly, the new Section 32 provides that the rights of the Secretary for Chinese Affairs as legal guardian shall be subject to the provisions of Section 10 of Ordinance No. 1 of 1923. That section provides that any Mui-tsai who wishes to be restored to the custody of her parent or natural guardian, and any Mui-tsai under eighteen whose parent or natural guardian wishes such Mui-tsai to be restored to his or her custody, shall be restored to such custody unless the Secretary for Chinese Affairs sees some grave objection in the interest of such Mui-tsai to such restoration.

In the third place, it might have been argued that the declaratory Far. 9. clause of Ordinance No. 1 of 1923, i.c., Section negatived the right of guardianship conferred on the Secretary for Chinese Affairs by Section 32 of Ordinance No. 4 of 1897. Reasons are given in the report on the Female Domestic Service Amendment Ordinance, Ordinance No. 22 of 1929, for suggesting that the conflict here was only apparent, but it has been thought better to make the matter quite

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