Introduction

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 [2021] 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.

Background

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 his mother.

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.

Key issues

There were 3 main issues before the Court:

1. Whether custody, care and control could be granted to the Foster Mother who has no biological connections with the Children;

2. Whether the Foster Mother could be made a guardian of the Children; and

3. Whether 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)[2006] 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.

Takeaway

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.