Introduction

A wardship order can be applied to allow an unmarried parent to have all the rights and authority that the law will allow him or her as a parent as if a child was legitimate and return the child to Hong Kong. In the recent case of BGPB v KSW [2021] HKCU 1575, a child who was born out of wedlock (the “Child”) was brought overseas by his mother (the “Mother”) without the consent of his father (the “Father”). The Father applied for a wardship order in the Court of First Instance (the “CFI”) to make the Child a “ward of the court” and ordered the return of the Child.

Background

The Child was born in Hong Kong out of the cohabitation of the Father and the Mother. The Father and the Mother continued living together and co-parented the Child. The Father has always been very involved in the upbringing of the Child and was very close with the Child.

With the spread of COVID-19 in 2020, the Father agreed with the Mother’s proposal for the Child to stay with the Mother’s family in Australia. They had agreed that they would go to France subsequently so that the Child could spend time with his paternal family. However, when the time came, the Mother refused to travel with the Child to France and to Hong Kong.

Since the Mother refused to respond to the Father’s requests to return to Hong Kong and to promise when she would return with the Child, the Father decided to formalize his parental rights in respect of the Child. The Father commenced a wardship proceeding seeking, inter alia, the return of the Child.

Key issues

There were 3 issues before the CFI:

1.       Whether the CFI could exercise jurisdiction over the Child;

2.       Whether the CFI’s order is recognized or enforceable in Australia;

3.       Whether it was in the best interests of the Child

a.       to grant the Father parental rights;

b.       to grant joint, care and control to the Father and the Mother; and

c.       to have the Child returned to Hong Kong.

CFI’s decision

Issue 1: Jurisdiction of the CFI over the Child

The Mother challenged that the Hong Kong Court was not an appropriate forum to hear the dispute as the Child has lost his habitual residence in Hong Kong. On this connection, while the CFI stated the question of habitual residence is irrelevant in a wardship proceeding as opposed to Hague Convention on the Civil Aspects of International Child Abduction 1980 (the “Abduction Convention”), it also stressed that parental intent did not play a part in establishing or changing the habitual residence of a child. Rather, it was the question of whether in a move from one country to another, the Child had developed a sufficient degree of stability in the other country which amounts to a change of habitual residence. The CFI opined that assuming the issue of habitual residence was relevant, by considering a range of factors including that (i) the Child have resided in Hong Kong for 10 years; (ii) he attended school in Hong Kong; and (iii) the lack of consent from the Father with regards to the purported relocation, the CFI could also easily conclude that the Child has his habitual residence in Hong Kong. As such, the Hong Kong Court could exercise jurisdiction over the Child.

Issue 2: Enforceability of the CFI’s order in Australia

On the second issue, the CFI took the view that the CFI’s order would not be automatically recognized or enforced in Australia. Accordingly, the Father would have to take out a proceeding for a “mirror” order in Australia to be able to enforce the same against the Mother.

Issue 3: Welfare Principle

When deciding the final outcome of a wardship proceeding, the Court’s paramount consideration is the welfare of the Child pursuant to section 3(1) Guardianship of Minors Ordinance (Cap.13) (the “GMO”). In other words, the most important factor has always been what is best for a Child. In relation to an illegitimate Child, however, the position is slightly different in that the Mother would automatically assume the rights and authority as if the Child is legitimate. The Father should only be entitled to equivalent rights and authority if the same has been ordered by the CFI upon his application under s. 3(1) GMO.

Notwithstanding the position under illegitimacy, it was held that neither parent has a superior claim to the other on account of being simply a father or mother. With a view to putting the competing parents on an equal footing, the CFI considered whether the unmarried Father shall have some or all of the parental rights in respect of the Child by having regard to:

a.       The degree of commitment which the Father has shown towards the Child;

b.       The degree of commitment which exists between the Father and the Child; and

c.       The reasons for the father applying for the order.

1.       The degree of commitment which the Father has shown towards the Child

The CFI accepted that the Father was fully committed to the Child in every aspect of his life, in terms of education, daily care, communication, financial support etc. The Father was also eager to meet his son in Australia and was willing to take unpaid leaves from work when tickets are available.

2.         The degree of commitment which exists between the Father and the Child

The CFI observed that the Father and the Child enjoyed each other’s presence and there was no barrier in their communication even through video links. They were closely bonded together and the Child repeatedly expressed his intention to meet his Father.

3.         Reason of the Father for applying for the order

The CFI was also motivated by the Father’s reasons for applying the order. The Father submitted that he had never agreed to the Child locating in Australia permanently, and yet the Mother had enrolled the Child in a school in Australia without his consent. In view of the alarming numbers of COVID-19 cases globally, the CFI agreed that it was prudent to formalize the Father’s parental rights in case something were to happen to the Mother.

As a result, the CFI ordered the Child to be a ward of the Court at least in the short period after his return to Hong Kong and gave the Father all the rights and authorities that that law would allow him as a father as if the Child were born in wedlock. As such, the long-term interests of the Child will be served by both parents equally involved.

Takeaway

The present case illustrates the Hong Kong Court’s wide jurisdiction in protecting a ward from any interference with his or her welfare. Where the Hong Kong Court found it appropriate to exercise wardship jurisdiction, the wishes of the parents had been weighed against the best interest of a child. The Mother might have thought that as a sole legal custodian of the Child, she was entitled to relocate the Child to Australia. While the law automatically granted parental rights and authority to an unmarried mother, it does not follow that she can take a child’s matter into her own hands. In any event, an unmarried mother should make a relocation application if she considers it is in the best interest of her child to stay in another country permanently. No one can ever expect a family holiday to end in this way, but if it does happen like the above example, the important thing is to seek legal advice as swiftly as possible for the appropriate legal action.