Hong Kong – Maintenance Rights Of Children Born Out Of Wedlock Where The Parentage Is To Be Determined.

27 September, 2019

 

The parent of a child born out of wedlock may make a claim for child maintenance pursuant to s.10 of the Guardianship of Minors Ordinance (Cap. 13) (“GMO”).  There is no requirement in the GMO for the child to be domiciled in or have a substantial connection to Hong Kong. 

 

However, it is not as straightforward if the child was not born in Hong Kong and the father or mother denies that he or she is the natural parent of the child.  If this happens, the applicant (usually the mother) may be required to establish the other parent’s (usually the father) parentage pursuant to s.6(1) of the Parent and Child Ordinance (Cap. 429) (“PCO”).  The Court may not have jurisdiction to entertain an application for a declaration of parentage if the child was not born in Hong Kong and/or has not lived here since birth.

 

We shall consider the recent case law in this area and the current position adopted by the Hong Kong Courts.

 

Overview

 

Pursuant to s.5 of the PCO, a man shall be presumed to be the natural father of a child if he was married to the mother of the child.  Therefore, a declaration of parentage is only required for cases where the child was born out of wedlock.

 

Pursuant to s.6(2) of the PCO, the Court will have jurisdiction to entertain an application for a declaration of parentage if, at the date of the application, the applicant:-

 

1. is domiciled in Hong Kong;
2. has been habitually resident in Hong Kong throughout the period of 1 year before the date of the application; or
3. has a substantial connection with Hong Kong. 

 

The applicant may also rely on s.13(1) of the PCO to seek the Court’s direction for scientific tests to be administered to determine whether a person is the father or mother of the child, in order to seek a declaration of parentage from the Court.

 

Pursuant to s.13(1) of the PCO, in any civil proceedings in which the parentage of any person falls to be determined, the Court may, either of its own motion or on an application by any party to the proceedings, give a direction:

 

1. for the use of scientific tests showing whether a party to the proceedings is or is not the father or mother of that person; and
2. for the taking of bodily samples from that person or any party to the proceedings.

 

And the Court may at any time revoke or vary a direction previously given under this subsection.

The Court’s jurisdiction to make maintenance orders in respect of a child born out of wedlock is governed by s.10(2)(a) and (b) of the GMO.  The Court may make the following orders against a parent:-

 

1. an order requiring payment to the applicant of such lump sum (whether in one amount or by instalments) for the immediate and non-recurring needs of the child or for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining the child before the making of the order to be met, or for both, as the Court thinks reasonable having regard to the means of that parent;
2. an order requiring payment to the applicant of such periodical sum towards the maintenance of the child as the Court thinks reasonable having regard to the means of that parent.

 

Recent case law 

 

OMH (a child) by AS, his mother and next friend v MT [2017] 3 HKLRD 323

 

The mother was an Indonesian domestic helper; the father was a Pakistani national and a Hong Kong permanent resident.  The child was born in Hong Kong.  The Family Court dismissed the mother’s application for a declaration as to parentage as she was unable to locate the father to obtain a DNA paternity test.  The Family Court did not believe it had the jurisdiction to make a declaration without the paternity test.   

 

The mother appealed and the Court of Appeal found that the Family Court Judge had erred in placing too much emphasis on the lack of paternity tests.  The Judge should have given the mother the opportunity to give further evidence on the fact that the mother had not had any other sexual relations during the time of the parties’ cohabitation, and that this was not challenged by the father.  The Court of Appeal allowed the appeal and granted the declaration of parentage.

 

QMY v GSS [2017] 4 HKC 521

 

The child was born in Hong Kong to unmarried parents, and subsequently moved to Mainland China with the mother.  The father was married with two children and worked in Hong Kong.  Parentage of the child was not in dispute.  The major concern was whether the mother’s application for child maintenance under the GMO should be entertained by the Hong Kong Courts given that the child was neither ordinarily resident nor present in Hong Kong. 

 

The Court of Appeal found that the welfare of the child was not at risk and the Court in Mainland China would be better placed to assess the child’s expenses. 

 

The Court of Final Appeal overturned the decision on the basis that the Hong Kong Courts have jurisdiction to entertain applications under the GMO, as there are no strict criteria as to whether the Court’s jurisdiction should be declined and it would be dependent on the circumstances of each case.  The Court of Final Appeal was of the view that there was no reason why the Court should decline to exercise its statutory jurisdiction under s.10 of the GMO where it would have made an order in favour of a child of a married couple.  Conclusively, the Court found that whether the child was ordinarily resident or present in Hong Kong is not relevant.

 

WSJ (Minor) by his mother and next friend HC v WZC & anor (parentage and jurisdiction) [2019] 1 HKLRD 977

 

The child was born in Hong Kong, but had lived in Mainland China since birth.  The Family Court Judge dismissed the application for a declaration of parentage on the basis that the child had failed to demonstrate a substantial connection to Hong Kong.  The mother appealed.  The Court of Appeal dismissed the appeal on the basis that the standard for satisfying the requirement of “substantial connection” should be the same as in divorce cases.  The Court of Appeal’s view was that it should not accept jurisdiction simply because it was in the best interests of the child, as doing so is tantamount to putting a gloss on the plain words of “substantial connection”.  Therefore, the declaration of parentage was not granted.

 

What happens if the child was not born in Hong Kong 

 

In all of the above cases, the child was born in Hong Kong.  Unfortunately, the current position is still unclear as to whether an applicant is entitled to apply for a declaration of parentage pursuant to s.6(1) of the PCO if his/her child was born outside of Hong Kong.  It appears from s.6(2) of the PCO that the Court does not have jurisdiction to entertain an application for a declaration of parentage where the child was not born in Hong Kong and has therefore not acquired residency rights in Hong Kong.  However, there have been other cases that place great emphasis on the child’s best interests, and less emphasis on the child’s substantial connection to Hong Kong, when determining whether a declaration of parentage should be granted.

 

Re CH (Minor) (Parentage: Scientific Test) [2019] 2 HKLRD 850 

 

In this recent case, the mother applied for both declaration of parentage and paternity testing as the father denied parentage and refused to pay child maintenance.  The Family Court Judge ruled in favour of the applicant mother on both applications as she found that DNA testing was in the child’s best interests which overrode any competing interests of the father.  The child in this case was born in Hong Kong.  However, this case relied on, amongst other cases, Re P (Parentage: Blood Tests) [2010] 4 HKLRD 497 where the Court granted leave for bodily samples to be taken from the father (who was deceased at the time) under s.13-14 of the PCO even though the child was born and resident in Beijing.

 

To conclude, it remains to be seen whether the applicant will have a recourse under s.13(1) of the PCO for paternity testing if the child cannot satisfy any one of the requirements in s.6(2) of the PCO for a declaration of parentage.  However, presuming the Court is willing to give directions under s.13(1) of the PCO for the administration of a paternity test in respect of  a child who does not reside in Hong Kong, whether the test could practically be administered on the child, is another question, as it usually requires assistance from the local authorities to do so.