Landmark ruling for shared motherhood and children parented by female same-sex couples
Family Law and Administrative Law
The High Court has granted a novel form of relief to recognize a child’s second female parent by making a declaration recognizing a non-gestational female parent as a parent “at common law”.
Key takeaways from NF v R [2023] HKCFI 2233, handed down on 31 August 2023: –
• The High Court for the first time granted a declaration recognizing a child’s second female parent by making a declaration recognizing the child’s non-gestational female parent as being a parent “at common law”. The child’s gestational mother was already recognised as a parent under Hong Kong law prior to the application in the case.
• The declaration declares a person a parent “at common law”, instead of utilizing the statutory regime under the Parent and Child Ordinance, Cap. 429, which provides for making a statutory declaration of parentage. The declaration of parent “at common law” is a novel form of relief. The Court declined invoking its parens patriae jurisdiction to grant the declaratory relief.
• The development in NF v R contributes to the evolving area of law regarding same-sex relationships in the family/parental context. Relevant recent developments include: –
○ Sham Tsz Kit v Secretary for Justice [2023] HKCFA 28, handed down days after NF v R, in which the Court of Final Appeal declared the lack of alternative framework for legal recognition of same-sex partnerships unconstitutional.
The Appellant’s legal team included Hectar Pun, SC and Anson Wong Yu Yat. Case commentary available here.
○ AA v BB [2021] 2 HKLRD 1225, in which following the separation of a same-sex female couple who had raised children together, the Court of First Instance granted guardianship and joint custody to the non-biological party of the separated couple.
The Respondent’s legal team included Isabel Tam. Case commentary available here.
In depth analysis and case commentary to NF v R is available here. A short summary of the judgment is provided below.
Brief Background
B and the respondent (“R”) are both females and have been in a long term same-sex relationship. They arranged to conceive the child (“K”) by a medical procedure which had biological involvement from both partners. Under this medical procedure, R would provide the genetic material (the egg), and the resultant embryo would be implanted into B. B gave birth to K.
An application was brought for a declaration that R, who provided the genetic material for K’s birth, be declared K’s “parent” (“the Application”). B, who was K’s gestational mother, was already stated to be K’s “mother” on his birth certificate. The application was brought under section 6 of the Parent and Child Ordinance, Cap 429 (“PCO”) which provides, as to declarations of parentage, inter alia that: –
“[a]ny person may apply to the court for a declaration that … a person named in the application is or was in law his parent …”.
R consented to the relief sought.
B and R have continued to raise K together as a family. The Court accepted that “There is no dispute that a “family” exists among B, R and K and with the extended families of B and R”.
The Secretary for Justice (“SJ”) opposed the Application.
The Official Solicitor (“OS”) was appointed as an amicus to address the court on issues of law, with a special focus on the interests of K. The OS supported the Application.
The Decision
The Court granted a declaration that R is a parent of K at common law[1]. Such declaratory relief was not granted as a statutory declaration made under section 6 of the PCO, but was granted under the “any other relief” limb of the originating summons[2]. In coming to the decision to grant declaratory relief, the Court found inter alia that K (and K’s class) had been discriminated against[3], and furthermore recognised that the relevant legislative intent which invoked the rights of children (Hong Kong Bill of Rights Article 20)[4] and the right to equality (Hong Kong Bill of Rights Article 22)[5] had been violated.
Significance
This case is another crucial change developing the law for both children of same-sex couples and their parents. The case recognizes the need to align the legal status of the child’s identity to the reality of the child’s family life and the challenges faced by such families in seeking to protect the parental-child relationship for the benefit of children of same-sex couples.
The approach of the Court in this ruling also demonstrates a willingness to adopt novel approaches in this area to accommodate societal changes and the reality of different types of family life, notwithstanding the lack of legislative changes in the area of same-sex rights. This case is also one of the few cases exploring the scope of the Court’s powers under its inherent parens patriae jurisdiction.
The case and its significance has been reported in the local media.
The judgment can be found here.
Representation
Isabel Tam, instructed by Withers, was part of the Respondent’s counsel team.
[1] Judgment §§146 & 161
[2] Judgment §161
[3] Judgment §145
[4] “(1) Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State. (2) Every child shall be registered immediately after birth and shall have a name.”
[5] “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Isabel Tam
Called to the Bar in 2013, Isabel practises in a wide range of areas, with an emphasis on public law, building management and property law, family law, commercial law and regulatory matters. Her experience in family law includes: children matters, ancillary relief, anti-suit injunction, and harassment-related proceedings. Recent highlights of Isabel’s experience include AA v BB [2021] HKCFI 1401, which has been hailed as a landmark victory for the LGBTQ community, granting parental rights to a separated same-sex couple who had co-parented children during their relationship. Isabel appeared for the Respondent, the non-biological mother within the same-sex relationship, and secured parental rights for her including guardianship and joint custody. Visit Isabel’s profile for more details. |
This article was first published on 20 October 2023.
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.