Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Z, A Minor Suing By His Mother And Next Friend X v Y

Judgment Cited authorities 15 Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date08 December 2022
Neutral Citation[2022] HKCFI 3695
Subject MatterMiscellaneous Proceedings
Judgement NumberHCMP1609/2022
HCMP1609/2022 Z, a minor suing by his mother and next friend X v. Y

HCMP 1609/2022

[2022] HKCFI 3695

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1609 OF 2022

_______________________

IN THE MATTER OF Z, a minor boy (“the Minor”)
and
IN THE MATTER OF section 3(1)(a) of the Guardianship of Minors Ordinance (Cap 13) and sections 5 to 8 of Parent and Child Ordinance (Cap 429)
and
IN THE MATTER OF the inherent or parens patriae jurisdiction of the High Court and Order 15 rule 16 of the Rules of the High Court (Cap 4A)

______________________

BETWEEN
Z, a minor suing by his mother and next friend X Applicant
and
Y Respondent
and
Secretary for Justice Intervener

______________________

Before: Hon B Chu J in Chambers (Not Open to Public)
Date of Hearing: 28 November 2022
Date of Judgment: 8 December 2022

_________________

JUDGMENT

_________________

INTRODUCTION

1. Before this Court is an application for a declaration of non-parentage[1]. The applicant, a minor, (referred to hereinafter as either “Applicant” or “Z”) through his next friend namely his mother X is seeking a declaration that the respondent Y, who is named on the Applicant’s birth certificate as his father, is not his father. The question is whether this Court has the jurisdiction to make such a declaration under section 6 of the Parent and Child Ordinance, Cap 429 (“PCO”) and if not, whether the Court has inherent jurisdiction as parens patriae, and/or power under Order 15 rule 16 of the Rules of the High Court to make such a declaration.

2. Y has indicated in his acknowledgment of service that he does not contest the application.

3. On 7 November 2022, this Court granted leave to the Secretary for Justice (“SJ”) to intervene in the present proceedings. SJ has invited the Court to dismiss the application.

4. This is not the first time that the Applicant has sought a declaration of non-parentage. The Applicant had originally issued an originating summons in the Family Court (FCMP 261/2021) under section 6 of the PCO to seek a declaration of non-parentage, namely that Y was/is not the father of the Applicant, and subsequently the originating summons was amended to seek a declaration that Y was the father of the Applicant under sections 5 and 6 of the PCO and also section 12B of the Births and Deaths Registration Ordinance, Cap 174 (“BDRO”)(“FC Proceedings”).

5. SJ decided to intervene in the FC Proceedings upon being notified at the direction of PFCJ CK Chan (“Judge”), and had raised objections to the application. After hearing from the parties, the Judge dismissed the amended originating summons although he was satisfied by the evidence that Y was in fact not the father of the Applicant.[2]

6. In the judgment delivered by the Judge (“FC Judgment”)[3], the Judge simply took the view that the English provision under section 55A of the Family Law Act 1986 (“1986 Act”) is differently worded and that there is no provision in the plain wording of section 6(1)(a) of PCO for him to grant a declaration that a person is or was not a parent of another person.

7. There was no appeal against the FC Judgment. Instead, the Applicant issued the originating summons in the present proceedings. Upon being alerted to these proceedings when SJ wrote to the Court on 4 November 2022 to seek directions, this Court had sent a letter dated 8 November 2022 to the parties and to SJ and had raised the issue as to whether the Court was bound by the Judge’s decision[4]. Leave was then granted for the Applicant to amend the heading of the originating summons herein to invoke not only the inherent jurisdiction of the Court but also sections 5 to 8 of the PCO for the present application, and directions were given for submissions to be lodged by the parties, together with authorities including the relevant UK legislative provisions and the Hong Kong legislative history of the PCO.

8. The Applicant had also in the present originating summons sought directions for an expedited hearing, that all hearings be conducted in chambers (not open to public), and an anonymity order throughout the proceedings and in the daily cause lists. Such directions should normally be sought from the Court prior to the issue of the originating summons and before the fixing of the hearing date, as otherwise, the purpose of seeking such directions would be defeated. However, the Applicant failed to do so notwithstanding writing to the High Court Registry to seek directions for an early/expedited hearing. Having said this, for what it is worth, upon being alerted to these proceedings after SJ wrote to the Court on 4 November 2022, this Court has granted an anonymity order on papers and directed the hearing to take place in chambers not open to public.

9. Counsel Ms Alison Choy appeared for the Applicant at the hearing before this Court and Ms Leona Cheung, Acting Principal Government Counsel and Ms Vivian Kao, Acting Senior Government Counsel, appeared for SJ.

SJ’S POSITION

10. To assist this Court, SJ has drawn the Court’s attention to the following issues:

(1) the Applicant is estopped from reopening the jurisdictional issue of section 6(1)(a) of PCO, and in any event, the Court does not jurisdiction under section 6(1)(a) of PCO to grant the declaration sought (“Issue Estoppel”)

(2) it is not open for the Court to exercise its parens patriae jurisdiction to grant a declaration where there is already a statutory scheme covering the exact situation (“Inherent Jurisdiction”)

(3) The present case is not a proper case for invoking Order 15 rule 16 of the RHC and even if the declaration sought is granted, it would serve no useful purpose (“Utility Issue”)

THE BACKGROUND

11. X is a Hong Kong permanent resident. (Part of paragraph redacted by leave of Court.)

12. Thereafter, X and Y began dating and they had sexual relationship. (Part of paragraph redacted by leave of Court.)

13. Z was born in Hong Kong. On Z’s birth certificate, Y was stated to be Z’s father, and Z was given a surname as that of Y’s. (Part of paragraph redacted by leave of Court.)

14. (Redacted by leave of Court.)

15. (Redacted by leave of Court.)

16. The DNA report dated 19 October 2012 (“DNA Report”) confirmed that Y was/is not the biological father of Z. (Part of paragraph redacted by leave of Court.)

17. (Redacted by leave of Court.)

18. (Redacted by leave of Court.)

19. (Redacted by leave of Court.)

20. (Redacted by leave of Court.)

THE FC PROCEEDINGS

21. As mentioned earlier, in the originating summons issued on 8 December 2021 in the FC Proceedings[5], the Applicant had sought a declaration of non-parentage as follows:

“A declaration that [Y] is and was not in law father of [Z] , a boy, born on…..”

(emphasis added)

22. It was stated in the title of the originating summons that the Applicant relied on section 6 of the PCO and inherent jurisdiction of Family Court.

23. The Applicant was represented by his solicitor Ms Joanna Ip at the hearings before the Judge.

24. It would appear that at a call over hearing of the originating summons, the Judge had pointed out to the parties that the court did not have jurisdiction to make a declaration of non-parentage and the matter was then adjourned for the Applicant to take legal advice, after which the Applicant sought an amendment of the originating summons[6].

25. The amended originating summons was filed on 30 May 2022, and the Applicant sought to rely on both sections 5 and 6 of the PCO and section 12B of the BDRO and sought the following:

“1. A declaration that [Y] was in law father of [Z], a boy, born on…….

2. Further and/or Alternatively, a declaration that [Y] was in law father of [Z]”

26. The alternative declaration sought seems no different from the main declaration sought. According to the skeleton arguments submitted by Ms Ip on 4 August 2022[7], the Judge had indicated at the call over hearing on 27 May 2022 that he might consider granting an order in terms of the amended originating summons with a preamble in following terms:

“[Y] being registered as the father of the [Z] appearing in the Birth Certificate of [Z] is presumed to be the father of [Z] and such presumption is rebutted for the reasons that [Y] is not the biological father of [Z]”.

27. The above preamble did not appear in the drawn up order made by the Judge (“FC Order”). In any event, as the transcript of the call over hearing has not been placed before this Court, it is not clear what exactly was indicated by the Judge at the call over hearing.

28. In the FC Judgement, the Judge had said that what was sought by the Applicant in the original originating summons was a declaration of non-parentage, and although the originating summons had been amended to instead asking for a declaration that Y was in law father of Z, the Judge thought what X was wanting to achieve was “to try to convince the Registrar of Births and Deaths that [Y]’s fatherhood of [Z] only restricted to the past and that [Y] is no longer the father of [Z].”[8]

29. The Judge then identified the following two issues[9]:

(1) Does the court have jurisdiction to grant a declaration of non-parentage, namely that [Y] is and was not in law father of [Z]? and

(2) If not, should the court grant the declaration as prayed in [Z]’s amended originating summons that [Y] was in law father of [Z]?

30. As mentioned, the Judge came to the view that the courts in Hong Kong do not have power to grant a...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT