Family Law — Court of First Instance grants guardianship and joint custody to same-sex, non-biological parent in landmark victory for LGBTQ community
The parties are a same-sex couple who, after separation, continued to co-parent their two children. However, the Respondent was not recognised as a parent under Hong Kong law and therefore had no guardianship rights during her former partner’s (the Applicant) lifetime.
AA v BB
|Reference:|| 2 HKLRD 1225,  HKCFI 1401|
|Court:||Court of First Instance|
|Before:||Hon B Chu J in Chambers (Not Open to Public)|
|Date of Decision:||21 May 2021|
|Appearance:||Isabel Tam, instructed by Withers, for the Respondent|
The parties are a separated same-sex couple who co-parented two children during their long-term relationship. The Applicant, being the children’s biological mother, is recognised under Hong Kong law as their only parent. To safeguard the children’s welfare, the Applicant (in an application supported by the Respondent) applied successfully to Court for the Respondent to be made a guardian and to be given joint custody, care and control of the children.
The Applicant and the Respondent were in a same-sex relationship for 17 years, during which the Applicant gave birth to two children through donor sperm insemination.
The first child (“X”) was born in Australia, whose law recognised both the Applicant and the Respondent as his parents. When the second child (“Y”) was born in Hong Kong, it was not possible to register the Respondent (the non-biological/non-gestational mother) as his parent. Whilst Hong Kong legislation does provide for conferring parental rights on the non-gestational parent, such recognition is restricted to heterosexual couples or heterosexual former couples (ie. recognition for the father to be recognized as a parent). There is no legislation specifically providing for recognition for a non-biological mother who has assumed parental responsibilities alongside the biological mother.
The two children enjoy a close relationship with the Applicant – whom they call “Mum” or “Mummy” – and the Respondent – whom they call “Mamma” – and regard both as their parents.
After the parties separated, they reached a co-parenting agreement which involved equal sharing of parental responsibilities. The Applicant and the Respondent had by will made the other the testamentary guardian of the children. However, the Respondent was not recognised as a parent under Hong Kong law, meaning that the Respondent had no guardianship rights (ie. the bundle of rights, duties and authority of a parent towards a child) during the Applicant’s lifetime. This would potentially have far-reaching impact on numerous aspects the parental-child relationship on the Respondent’s side, for example impacting whether the Respondent would be able to travel abroad with the children, or whether she had the right to be informed by the school on matters of the children.
In the present proceedings, the Applicant sought various court orders including:
• Grant of joint custody, care and control of the children to both parties;
• Appointment of the Respondent as a guardian of the children.
The Respondent supported the application of the Applicant.
The Court’s Ruling — Joint Custody, Care & Control
The children’s bests interests are the first and paramount consideration in the Court’s exercise of its jurisdiction in making orders for their custody, care and control.
In the present case, the Court confirmed its power to make such orders whether in favour of the Applicant or the Respondent, whether under section 10(1) of the Guardianship of Minors Ordinance, Cap. 3 (“GMO”) or under the Court’s inherent jurisdiction. The Court specifically referred to past cases in which the Court did order the care and control of its ward to a third party having a non biological relationship with the minor if such order is in the ward’s best interests.
The Court also called for a social welfare report, which confirmed that the parties had shared their parental responsibilities amicably and that the boys benefitted from both their parents’ love and care throughout their upbringing. Moreover, the children expressed their love towards their “Mommy” and “Mamma” and have no preference over either of them.
In conclusion, the Court ruled that it is in the best interests of X and Y for the Applicant and the Respondent to have the children’s joint custody and joint care and control.
The Court’s Ruling — Guardianship
Both parties have already by will made the other the testamentary guardian of the boys. Therefore, this is not an application under Part 3 of the GMO; the Court is asked to exercise its inherent jurisdiction in making the Respondent a guardian of the boys during the Applicant’s lifetime.
The Court examined cases discussing the concept of parenthood, in particular cases noting that a person may be or become a natural parent, not only based on genetic parenthood or gestational parenthood, but also based on social and psychological parenthood, ie. the relationship which develops through the child demanding and the parent providing for the child’s needs, initially at the most basic level of feeding, nurturing, comforting and loving, and later at the more sophisticated level of guiding, socializing, educating and protecting.
The Court held, in respect of the question of whether the Respondent ought to be a guardian (and thus granted the bundle of parental rights and putting her on the same footing as the Applicant), that although not legally a parent under the laws of Hong Kong, the Respondent is a “natural” parent of X and Y being the psychological and social parent of the children.
In Australia, both parties are the legal parents and therefore legally joint guardians of their first child, X, but the Court noted that it is not clear whether the Respondent is considered a guardian of Y, and if not, it would create an anomaly. Since the Respondent is not a guardian to both boys in Hong Kong, the Court recognised that the boys would find it difficult to understand the existence of such differentiation or discrimination – which cannot be in their best interests.
Therefore, the Court held that it is in the children’s bests interests to appoint Respondent as a guardian of both X and Y, to exercise any guardianship rights jointly with the Applicant.
This case is an important step for both children of same-sex couples and their parents, in terms of protecting the parental-child relationship for the benefit of children of same-sex couples, and ensuring the continuation of parental rights for same-sex parents.
Importantly and from a broader perspective, the approach of the Court in this ruling showcases the potential in utilizing pre-existing statutory provisions and the inherent jurisdiction of the Court, to create results that advance equality and that respond to societal changes, notwithstanding the lack of legislative changes in the area of same-sex rights.
 By way of an application made under the Guardianship of Minors Ordinance, Cap.3.
Isabel is a Bar Scholar who was called to the Bar in 2013. Her practice has an emphasis on public law, family law, commercial law, regulatory matters, and building management. Her experience in family law includes: children matters, ancillary relief, anti-suit injunction, and harassment-related proceedings. Her articles include “Litigation Funding in the Context of the Family Court: Practitioner’s Tips“.
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 photograph which appears in this article is included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related.