Same-sex parents: Do we have guardianship rights, joint custody, care and control over our non-biological children?
Since same-sex marriages and civil
partnerships are not recognised under the laws of Hong Kong, same-sex couples
do not enjoy the same parental rights as opposite-sex couples in Hong Kong.
Accordingly, non-biological parents tend to have great difficulty in obtaining
equal parental rights of the children as their same-sex counterpart who is a
biological parent of the children. However, in the recent case of AA
v BB  HKCFI 1401, the Court of First Instance (the “Court”)
sought to accord equal treatment to a non-biological mother by granting
guardianship rights, joint custody, care and control of the two children who
were given birth by her former same-sex partner.
The applicant gave birth to two children
(the “Children”) with the
help of donated sperms. The elder child was born in Australia and both the
applicant (the “Birth Mother”) and
the respondent (the “Foster Mother”)
were both stated to be the child’s mother on the child’s birth certificate
issued by Australian authorities. Subsequently, the Birth Mother gave birth to
another child in Hong Kong. On the younger child’s birth certificate issued by
the Registrar of Births in Hong Kong, only the Birth Mother was stated to be
The Birth Mother and the Foster Mother
have been co-parenting the Children amicably and were very close with them. The
Children regarded both the Birth Mother and the Foster Mother as their parents.
Due to difficulties in the relationship between the Birth and Foster Mothers,
they separated in 2020 after 17 years of cohabitation but reached a
co-parenting agreement and continued to share the responsibility of taking care
of the Children on alternate weeks.
The Birth Mother commenced the present
proceedings seeking (i) the Children to be made wards of the Court, (ii) the
Foster Mother to be made a guardian of the Children; and (iii) the Birth Mother
and Foster Mother to have joint custody and joint care and control of the
Children. The Foster Mother did not contest the proceedings.
There were 3 main issues before the Court:
custody, care and control could be granted to the Foster Mother who has no
biological connections with the Children;
the Foster Mother could be made a guardian of the Children; and
the Children should be made wards of the Court.
Decision of the Court
Issue 1: Custody, care and control
At the outset, the Court set out the
“welfare principle” codified in section 3(1)(a) of the Guardianship of Minors
Ordinance, Cap 13 (“GMO”), which
provides that in any
proceedings before the court in relation to the custody or upbringing or a
minor, the court shall regard the best interests of the minor as the first and
paramount consideration and shall not take into consideration whether, from any
other point of view, the claim of the father is superior to that of the mother,
or the claim of the mother is superior to that of the father (the “Welfare
Principle”). The Court then referred to the English
case of Re G (Children)
UKHL 43, which is also a case involving a same-sex couple, in which the House
of Lords in the U.K. had to consider, among
others, the weight to be attached to the fact that one party was
both the natural and legal parent of the child and the other was not. In that
case, the English court held that there was no presumption in favour of natural
parents of the child, though the fact of parentage would still be relevant in
assessing the welfare of the child, which was the paramount consideration.
However, the English court held that parentage arises not only in relation to a
biological parent, but also a psychological and social parent (i.e. the one who
provides for the child’s needs).
Bearing in mind the Welfare Principle and
the House of Lords’ judgment in Re
G (Children), the Court first noted that the Birth Mother,
being a legal parent of the Children, has the right to make an application
under section 10(1)(a) of GMO to the Court for a custody order. Further, the
Court held that its power to make such a custody order is not limited to an
order made in favour of a parent only and may extend to a non-parent having a
non-biological relationship with the minor. Taking into account the fact that
both the Birth and Foster Mothers had shared the parental responsibilities
towards the Children amicably, and that the Children loved both their mothers
equally, the Court considered it to be in the best interests of the Children
for both the Birth and Foster Mothers to have joint custody and joint care and
control over the Children.
Issue 2: Guardianship
On the issue of whether the Foster Mother
should be made a guardian of the Children, the Court noted that the power of
the court to appoint a guardian of a minor under the GMO is limited to 3
situations, all of which apply to situations where there is no guardian in
place of the deceased parent or guardian. That is, the deceased parent or
guardian did not appoint a guardian, a guardian was appointed by the deceased
parent but he/she dies, or the appointed guardian declaims the appointment.
Here, since the Birth Mother is still alive, none of the above situations is
applicable. Having considered the fact that both the Birth and Foster Mothers
are the legal parents and thus legally joint guardians of the elder child in Australia
but not (for the Foster Mother) in relation to neither one of the Children in
Hong Kong, the Court held that such differentiation and/or discrimination would
be difficult to be apprehended by the Children and therefore could not be in
their interests. As such, in light of the Welfare Principle, the Court
exercised its inherent jurisdiction to appoint the Foster Mother as a guardian
of the Children.
Issue 3: Wardship
Upon giving the order in relation to the
joint custody, care and control, as well as guardianship of the Children, and
since there is no dispute between the Birth and Foster Mothers in their
co-parenting, the Court considered that it is no longer necessary for the
Children to continue to be wards of the Court. Therefore, the Court made an
order for the Children to cease to be wards.
The decision in AA
v BB signifies as a big step in recognising the equal
parental rights of non-biological parents in same-sex couples. It is clear that
the Welfare Principle is not confined to blood relations but extends to
psychological and social relations. This case is another example where the
Court exercises its discretion and demonstrates its flexibility in deciding
what it finds to be the best for a child taking into account the facts and circumstances
of a case. Although the best
interests of the child is the first and paramount consideration of the Court,
if a non-biological parent has parented the child amicably and has built a
close relationship with the child, the Court may well take that fact into
account and treat that parent as a natural parent of the child, which
may lead to the recognition of his/her legal parental rights. Nevertheless, the
Welfare Principle applies differently in different cases, and it remains to be
seen whether, for example, same-sex couples will be granted equal treatment
over their adopted children.
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|Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.
|Published by ONC Lawyers© 2021