Administrative Law — Who is a “parent”? K (An Infant) by his Next Friend, R v The Secretary for Justice [2025] HKCFI 2023
The Court of First Instance handed down a landmark judgment holding that it is unconstitutional for the Government to refuse to register the genetic mother of a child – born to a same-sex couple through reciprocal in-vitro fertilisation – as a “parent” on his birth certificate.
Jason Ko (led by Nigel Kat SC and with Azan Marwah), instructed by Patricia Ho & Associates, acted for the Applicant.
Isabel Tam (with Jonathan Ip), instructed by Withers, represented the 1st Interested Party.
The Court addressed arguments as to whether constitutional rights protected by the Hong Kong Bill of Rights are engaged, including the right to family life under Article 14 [154], the right in respect of marriage and family under Article 19 [160], the right of children under Article 20(1) [164], and the right to equality under Article 22 [165].
The Court went on to apply the Hysan test which involves consideration of identification of legitimate aim, establishing a rational connection, reviewing whether the measure is proportionate, and verifying that a reasonable balance is struck [136, 185]. In particular:-
1. The Court was of the view that the “flexibility argument” [193], the “social consensus argument” [194], and the claimed need for consistency with other parts of the regime [195-196] either did not amount to, or did not identify, a legitimate aim.
2. The Court held that alternatives such as guardianship, wardship or adoption could not “provide the recognition central to the [c]hild’s identity and to the parental relationship” [197], and rejected reliance on the argument that the matter may involve a “policy choice” for being “circular” [198].
3. The Court concluded that the Government’s refusal does not pursue a legitimate aim and/or lacks the necessary rational connection [228].
4. The Court went on to hold that there is disproportionate interference [232], and in this connection, held that the appropriate point on the spectrum of margin of appreciation is closer to the “no more than reasonably necessary” standard, but also observed that the same conclusion would have been reached even if the appropriate margin is closer to that of “manifestly without reasonable foundation” standard [231-232].
5. Finally, the Court held that a reasonable balance is not struck between the societal benefits of the measure and the inroads made into the rights of the affected individuals [238].
The Court has “found a proper basis for the grant of relief” and will hear further argument as to what the precise form of that relief should be [254].
The full judgment can be found here:
https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=172268&currpage=T
Denis Chang’s Chambers has consistently been ranked as a Tier 1 set for Administrative and Public Law by The Legal 500 Asia-Pacific. At a time when the jurisprudence involving same-sex couples and modern families in Hong Kong is evolving, read more about significant same-sex related cases featuring members of Denis Chang’s Chambers: –
On legal recognition of same-sex partnerships: Sham Tsz Kit v Secretary for Justice (No 1) (2023) 26 HKCFAR 385: https://dcc.law/court-of-final-appeal-makes-final-orders-on-relief-and-costs-in-landmark-judgment-on-legal-recognition-of-same-sex-partnerships/
On children born under reciprocal IVF: NF v R [2023] 5 HKLRD 58: https://dcc.law/landmark-ruling-for-shared-motherhood-and-children-parented-by-female-same-sex-couples/
On children parented by separated same-sex couple: AA v BB [2021] 2 HKLRD 1225: https://dcc.law/news-lgbtq-same-sex-parents-guardianship-custody/
Isabel Tam
Recognised as Leading Junior in Legal 500 (2025, Administrative and Public Law), Isabel’s practice focuses on family law, public law, and regulatory matters. She has extensive experience in general matrimonial finance and preservation of assets, as well as particular expertise in complex legal issues arising out of LGBTQ/modern families and the dissolution of families with cross-border elements. She has acted as sole counsel in the Court of Appeal, Court of First Instance, District Court, Magistrates’ Courts, and the Court of Final Appeal.
Isabel has been involved in landmark family law cases concerning modern families and LGBTQ rights in Hong Kong. Notably, she represented the non-biological parent in AA v BB [2021] 2 HKLRD 1225, securing guardianship and joint custody for a same-sex couple. She was involved in NF v R [2023] 5 HKLRD 58, a case resulting in a novel type of relief, a declaration of “parentage at common law” for a same-sex parent. Her expertise in family law is augmented by her experience in other related areas including in particular tax (Koo Ming Kown & Anor v The Commissioner of Inland Revenue [2021] 3 HKLRD 642 on liability for additional tax), mental incapacitated persons, and trust claims.
She is a contributor to the current editions of Hong Kong Civil Procedure and Bullen & Leake & Jacob’s Hong Kong Precedents of Pleadings.
Please visit Isabel’s profile for more details.
Jason Ko
Jason is a Charles Ching Scholar. He has been recognised by Legal 500 Asia-Pacific 2025 as a Rising Star in “Commercial Disputes” and 2024 as a Rising Star in “Regulatory, Investigations and Crime” categories.
Since joining Chambers in 2019, Jason has acted in a wide range of civil and criminal matters, including successfully seeking injunctions restraining acts of harassment and defamation. He also acted for the defendant in the first Hong Kong trial of disclosing personal data without data subject’s consent, contrary to section 64 of the Personal Data (Privacy) Ordinance (Cap 486): HKSAR v Ip Anthony Chun Hin (WKCC 1638/2022) (led by Philip Dykes SC).
Recently, Jason acted for the successful Plaintiffs in civil contempt proceedings where the Defendant has acted in breach of an anti-harassment injunction order: Chuang’s China Investments Limited v Zhou Changchun [2023] HKCFI 2427 (with Mr Richard Yip).
Find out more from Jason’s profile.
This article was first published on 11 September 2025.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.