16 June 2021
At present, same-sex marriages and civil partnerships are not recognised under the laws of Hong Kong. This means that same-sex couples do not currently enjoy the same parental rights as opposite-sex couples in Hong Kong. Consequently, same-sex parents are not attributed equal parental rights.
In the recent decision of LS v KG [2021] HKCFI 1401, it was ruled by the Court of First Instance that a non-biological parent of a child born by his/her former same-sex partner should be granted guardianship rights, joint custody and shared care over his/her children.
Facts
This case involved a lesbian couple with 2 children, L and F aged 11 and 9 respectively at the time of the application. The Applicant, LS, gave birth to the children with the assistance of a sperm donor, and the Respondent was the non-biological parent. The first child, L, was born in Australia by the Applicant with both parties registered as legal parents; but in respect of the second child, F, who was born in Hong Kong, only the Applicant was listed as the child’s parent as it was not possible for the Respondent to do so under the laws of Hong Kong.
Upon the end of their cohabitation, the parties reached a co-parenting agreement whereby the children would stay with either the Applicant or the Respondent on alternate weeks with handovers on Fridays after school. The Court application was issued in an attempt for the Respondent to also be made a legal guardian of the children, and for both parties to be granted joint custody and joint care and control of the children.
Legal Analysis
In arriving at its decision, the Court of First Instance considered the following:
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Since the parties were able to share their parental responsibility towards their children amicably, and that the children have been benefitting from their parents’ love and care throughout their upbringing, it would be in the best interest of the children to grant joint custody, care and control of the parties due to their close relationships with the children, the power of which was derived from s.10(1) of Guardianship of Minors Ordinance (“GMO”).
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The welfare of the child should be the first and paramount consideration. The Court considered the Social Welfare Report and the ‘Welfare Checklist’ set out in both the Children Proceedings (Parental Responsibility) Bill and Baroness Hale’s judgment in in J & Another v C & Others [1970] AC 668 in which the House of Lords had held that the welfare principle was equally applicable to disputes between parents and non-parents. In J v C, the House of Lords had rejected the proposition that there was any presumption in favour of the natural parents of the child.
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Although not legally a parent under the laws of Hong Kong, the Respondent is a “natural” parent of L and being the psychological and social parent in the third way as described by Baroness Hale in Re G (Children) [2006] UKHL 43, a case which involved a same-sex couple who had parted ways and had a dispute over the access and living arrangements of two children.
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Although the Respondent is a guardian of L in Australia, it is not clear whether she would be a guardian of F in Hong Kong, and if not, it would create an anomaly. Further in Hong Kong, it would seem the Respondent, not being a legal parent, is not a guardian to L nor to F. It would be difficult for the children to understand why there is to be such a differentiation and/or discrimination, in particular when they are close to each other and to both their parents, and such differentiation and/or discrimination cannot be in their interests.
Comparison between UK and HK position
In England & Wales, the concept of ‘parental responsibility’ stresses the rights of the children in maintaining a continuing relationship with their parents as opposed to the rights of the parents, and provides for separated parents to be included in making important decisions about the children’s lives.
The concept of ‘parental responsibility’ has not yet been made into legislation in Hong Kong due to the delay in enacting the Children Proceedings (Parental Responsibility) Bill. In cases involving unmarried parents , only the mother has custody of the children, whereas the father will only have the rights and authority over the children upon making an application to court. In other words, until the father makes an application only the mother has the right to make the decisions regarding the upbringing of the child.
Therefore, the case of LS v KG represents a significant step towards equal rights and opportunities for the LGBTQ community and shows that the Hong Kong courts recognize the need for legal parentage of children regardless of the parents’ sex, in the interests of the children.
Future
The decision in LS v KG is only applicable where one of the parties is a natural parent of the child. Time will tell whether same-sex couples, where neither of the parties is the natural parent of the child, will receive the same treatment as LS and KG, since commercial surrogacy and using donated gametes in surrogacy are illegal in Hong Kong.
For further information, please contact:
Caroline McNally, Executive Partner, Gall
carolinemcnally@gallhk.com
