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HCMP 2342/2020
[2021] HKCFI 1401
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO 2342 OF 2020
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IN THE MATTER OF X, ████ born on x ████ and Y, ████ born on x ████, both minors |
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and |
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IN THE MATTER of Section 26 of the High Court Ordinance (Cap 4) and Order 90 of the Rules of the High Court (Cap 4A) |
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and |
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IN THE MATTER Section 10 of the Guardianship of Minors Ordinance (Cap 13) |
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BETWEEN
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AA |
Applicant |
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and |
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BB |
Respondent |
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| Before: |
Hon B Chu J in Chambers (Not Open to Public) |
| Date of Hearing: |
8 March 2021 |
| Date of Social Welfare Report: |
30 April 2021 |
| Date of Judgment: |
21 May 2021 |
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J U D G M E N T
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Introduction
1. These wardship proceedings concern two children X and Y who have been under the joint care of a same-sex couple namely the Applicant and the Respondent.
2. In the originating summons, the Applicant seeks the following orders:
(1) X and Y be made wards
(2) the Respondent be made a guardian of X and Y
(3) the Applicant and the Respondent to have joint custody and joint
(4) care and control of X and Y
3. The Respondent has through her solicitors indicated in the acknowledgement of service that she does not intend to contest the proceedings.
4. The 1st hearing of the original summons took place on 8 March 2021. Counsel Mr Azan Marwah represented the Applicant at the hearing and Counsel Ms Isabel Tam represented the Respondent.
5. Notwithstanding the proceedings being uncontested, this Court decided to call for a social welfare report and directed the originating summons to be dealt with on paper.
6. Subsequent thereto, a social welfare report was submitted on 30 April 2021 (“SWR”).
Brief background
7. The Applicant was born and brought up in the United Kingdom and graduated from a university there. She is now aged 44 and has since 2018 worked as a █████.
8. The Respondent was born and brought up in Australia and completed university education there. She is now 47 years old and has since 2010 worked in the ████████;field.
9. The parties met in 2003 in Australia and started cohabiting as a couple about 7 to 8 months thereafter. In about 2007 they moved to Hong Kong.
10. In around 2009, they started to plan for a family. The Applicant became pregnant through insemination of donated sperm by a good friend of the Respondent’s. As a result, the Applicant gave birth to X in Australia in ████████. On X’s birth certificate issued by Australian authorities, the Applicant and the Respondent are both stated to be his mother. Later, in 2011, the Applicant became pregnant through insemination of donated sperm by the same donor and in ████████, she gave birth to Y in Hong Kong at Queen May Hospital. On Y’s birth certificate issued by the Registrar of Births in Hong Kong, only the Applicant is stated to be his mother.
11. The Applicant, the Respondent, the donor and his partner have entered into a “Donor Insemination and Parenting Agreement” on 21 March 2009, pursuant to which the donor has agreed to have no parental rights with regard to any child conceived and born as a result of the insemination of his sperm.
12. X and Y are now respectively 11 and 9 years old. They call the Applicant “Mum” or “Mummy” and they call the Respondent “Mamma”, and they regard both the Applicant and the Respondent as their parents.
13. The Applicant and the Respondent started to have difficulties in their relationship and in 2019 they had attended counselling which unfortunately did not work. In March 2020, they separated after 17 years of cohabitation.
14. The parties reached a co-parenting agreement in March 2020 upon the end of their cohabitation. X and Y would stay with either the Applicant or the Respondent on alternate weeks with handovers on Fridays after school. X and Y presently are attending the same school but for the next academic term commencing in August 2021, X will be attending a new school. X and Y have a close relationship with both their Mummy and their Mamma. To facilitate the children to overcome the separation of their parents psychologically, the parties have arranged ████████████████████████.
Custody, care and control
15. Section 3(1)(a) of our Guardianship of Minors Ordinance, Cap 13 (“GMO”) sets out that in any proceedings before the court in relation to the custody or upbringing or a minor, the Court shall regard the best interests of the minor as the first and paramount consideration and shall not take into consideration whether, from any other point of view, the claim of the father is superior to that of the mother, or the claim of the mother is superior to that of the father.
16. Section 3(1)(b) provides that a mother shall have the same and equal rights and authority as a father, save where a minor is illegitimate, in which case, under section 3(1)(c), a mother shall have the same rights and authority as she would have if the minor were legitimate but a father shall only have such rights and authority, if any, as may have been ordered by a court on his application.
17. In Re G (Children) [2006] UKHL 43, a case which involved a same-sex couple CG and CW who had parted ways and who had disputes over the contact and residence order of two children conceived by CG as a result of insemination by a donor, the House of Lords had to consider two issues of principle, one of which was the weight to be attached to the fact that one party was both the natural and legal parent of the child and the other was not.
18. Baroness Hale had set out the “welfare principle” and the “welfare checklist” in section 1 of the Children Act 1989, the statutory ancestor of which was section 1 of the Guardianship of Infants Act 1925 (later consolidated with minor changes of terminology in section 1 of the Guardianship of Minors Act 1972) upon which our section 3 of the GMO is based. Baroness Hale pointed out that the 1925 Act was passed at a time when the father was sole guardian of his legitimate child and the mother the only person with parental rights over her illegitimate child, and that section 1 of the 1925 Act clearly meant that, in future, such legal claims were to be ignored and the child’s welfare was to prevail. Baroness Hale had further referred to the landmark case of J and Another v C and Others [1970] AC 668, (1969) FLR Rep 360 in which the House of Lords had held that this was equally applicable to disputes between parents and non-parents.
19. 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. Baroness Hale further considered various cases and also the coming into effect of the Children Act 1989. She concluded that the statutory position was plain, and that the welfare of the child was the paramount consideration and there was no question of a parental right[1].
20. Although there was no presumption in favour of natural parents of the child, Baroness Hale went on to say that none of this meant that the fact of parentage was irrelevant. She then considered the significance of the fact of parenthood and that it was worthwhile picking apart what was meant by ‘natural parent’ in the context[2]. She explained the difference between ‘natural’ parents and ‘legal’ parents.
21. As stated by her, there are at least three ways in which a person may be or become a natural parent, each of which may be a very significant factor in the child’s welfare, depending upon the circumstances of the particular case[3]. The three ways are briefly[4], (i) genetic parenthood: the provision of the gametes which produce the child; (ii) gestational parenthood: the conceiving and bearing of the child; (iii)...
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