In a landmark case before the Court of First Instance, the High Court (“CFI”) ruled that the non-biological mother of children born by her prior same-sex partner should be granted guardianship rights, joint custody and shared care and control over their children:LS v KG [2021] HKCFI1401.
Same-sex marriages and civil partnerships are not recognised under the laws of Hong Kong. Given the nature of these relationships, many opt to have children with the assistance of a sperm donor, but are faced with the realisation that after the birth of their child, only the biological partner will be listed as the legal parent. The non-biological partner, despite the parties’ intentions of being co-parents with equal involvement in their child’s life, will not be recognised as a legal parent due to the lack of acknowledgement of their same-sex relationship.
A child’s day-to-day routine may not be affected with the absence of both same-sex partners being registered as their legal parents. The ramifications towards the non-biological parent may, however, be catastrophic, potentially resulting in them having no legal rights over their child upon the sudden death or incapacitation of the biological partner. Should the parties’ relationship break down, it will also be difficult, if not impossible, for the non-biological partner to seek for access rights, or to disagree with the biological partner’s decision to relocate with their child. This negative impact, albeit distressing, is minimal when compared to the confusion suffered by the child, grasping to understand the differentiation and/or discrimination between the rights of the biological and non-biological parent, when they consider both same-sex partners as their parents.
Here, the Applicant was the biological mother of the children and the Respondent was her same-sex partner. They decided to have children with the assistance of a sperm donor. The Applicant gave birth to the first child in Australia in 2010, with both parties registered as his legal parents under Australian law, and the second child in Hong Kong, where it was not possible for the Respondent to be listed as the child’s parent. Following the separation of the parties, they transitioned into a co-parenting arrangement with equal involvement in the children’s lives. The application was issued in order to formalise the non-biological partner’s parental rights and to guarantee her legal status to her children should anything happens to the birth-mother amidst the current pandemic or in the future.
In considering the matter, the Court called for a Social Welfare Report, which confirmed that the parties have always had de facto shared care and control of the children and that the children were accustomed to their diverse background of having two mothers. The Court expressed it would not be in the children’s best interests if the application was unsuccessful as the children are close to each other and to both mothers. As there was no dispute between the parties in their co-parenting relationship, the Court was satisfied that the Respondent be granted guardianship rights, joint custody and shared care and control.
This case comes as a victory for the LGBTQ community, as upon the birth of the child, same-sex parents may now apply to have equal parental rights over their children. This follows on from the CFI decision on 18 September 2020 in respect of Ng Hon Lam Edgar v. Secretary of Justice and Nick Infinger v. Hong Kong Housing Authority, whereby the CFI ruled that the exclusion of same-sex married partners’ right to claim as “surviving spouses” under the Intestates’ Estates Ordinance (Cap. 73) and the Inheritance (Provision for Family and Dependents) Ordinance (IEO and IPFDO) (Cap.481) constituted unlawful discrimination on the grounds of sexual orientation, despite the government applying to appeal this decision.
With the recent surge of recognition by the Courts of the lack of rights enjoyed by the LGBTQ community, the CFI’s decision marks yet another chapter in the LGBTQ community’s fight for equality.
For further information, please contact:
Jocelyn Tsao, Partner, Withersworldwide
jocelyn.tsao@withersworldwide.com
