Recently, Shanghai Baoshan District People¡¯s Court (hereinafter referred to as the ¡°Shanghai Baoshan Court¡±) concluded a case of guardianship transfer application. In this case, the minor Huanhuan¡¯s father was unknown and her mother was serving a long-term sentence. So the court opened a green channel and applied a special procedure to transfer Huanhuan¡¯s guardianship from her parents to her maternal grandparents.

[Case Review]

The applicants surnamed Lv and Zhang are the maternal grandparents of Huanhuan under guardianship of her parents. In December 2011, the respondent surnamed Lv gave birth to Huanhuan in Shanghai, but she was unsure of who Huanhuan¡¯s father was. As the respondent Lv had shortly lived with a man surnamed Li during her pregnancy, she put Li¡¯s name down in the field for ¡°Father¡± in the birth certificate of Huanhuan. After Huanhuan was born she had been living with her maternal grandparents. Her mother Lv hardly performed any parental obligations and her nominal father had long been out of touch. As the mother Lv was a permanent resident registered in Hong Kong and Li was out of touch, Huanhuan hadn¡¯t been able to be registered as a permanent Chinese resident, and thus couldn¡¯t be enrolled in a kindergarten to receive education but be instructed at home by her maternal grandparents only. Meanwhile, Huanhuan¡¯s maternal grandparents had tried to help Huanhuan apply for the Hong Kong resident status but failed for various reasons.

When it came to 2018 and the 7-year-old Huanhuan had reached the age of being enrolled in a primary school, the missing status of a permanent Chinese resident still stopped her from being permitted into a school. And in May 2018 her mother Lv was sentenced to fixed-term imprisonment of 15 years for drug trafficking and began to serve the sentence in a women¡¯s prison. The only choice left for the maternal grandparents Lv and Zhang then was trying to have Huanhuan registered into the household of Li, her nominal father recorded in her birth certificate. With the help of multiple parties, Li was finally found serving a sentence in a prison. However, the DNA test showed that Li was not Huanhuan¡¯s biological father. As it was impossible to find out Huanhuan¡¯s biological father, Huanhuan was once again stopped from being registered as a permanent Chinese resident. In order to solve the problems about Huanhuan¡¯s raising and school enrollment as soon as possible, the maternal grandparents Lv and Zhang made an application to the court for the transfer of Huanhuan¡¯s guardianship.

[Case Study]

After Shanghai Baoshan Court accepted the case, it made active communication with the women¡¯s prison where the mother Lv was serving a sentence and asked Lv for her opinion. The mother expressed her inability to raise Huanhuan and agreed to transfer Huanhuan¡¯s guardianship to her parents.

After hearing the case, the court held that neither parent of the minor Huanhuan was able to perform their guardianship for certain reasons while the actual caregivers, the maternal grandparents Lv and Zhang, were willing to assume the obligations of raising and looking after Huanhuan and the guardianship of Huanhuan, but the fact that Huanhuan¡¯s maternal grandparents had no lawful guardianship of Huanhuan resulted in Huanhuan¡¯s inability to enjoy the lawful rights and interests with respect to household registration, school enrollment and property safeguarding, etc. To end the guardianship vacancy of the minor as soon as possible and truly safeguard the minor¡¯s lawful rights and interests, the court ordered to transfer Huanhuan¡¯s guardianship from her parents to her maternal grandparents.

(All the people¡¯s names in the article are made-up.)

[Relevant Laws]

I. General Rules of the Civil Law of the People¡¯s Republic of China

Article 27 ¡­¡­

If both parents of a minor are deceased or have no guardianship competence, the guardian shall be served by any of the following persons with guardianship competence in the sequence below:

(1) Grandparents or maternal grandparents;

(2) Older brothers or sisters; or

(3) Any other individual or organization that is willing to act as the guardian of the minor, subject to the consent of the residents committee, the villagers committee, or the civil affairs authority at the place of the minor¡¯s domicile.

II. Civil Procedure Law of the People¡¯s Republic of China

Article 178 In cases tried in accordance with the procedure provided in this chapter, the judgment of first instance shall be final. A collegial panel of judges shall be formed for the trial of any case involving the qualification of voters or a major, difficult or complicated case; other cases shall be tried by a single judge alone.