HONG KONG SAR, CHINA Law and Practice Contributed by: Jocelyn Tsao and Philippa Hewitt, Withers
1.4 Requirements for Non-Genetic Parents Guardianship A non-genetic parent can obtain custody of a child if the natural and legal parent makes an application for guardianship in their favour. The Director of Social Welfare can also make the application, as can the child themselves in certain circumstances ( AA v BB [2021] HKCFI 1401). Once the application has been made, the court has the power under Section 10 (1) of the GMO to make such custody order as it sees fit. Relevant cases in Hong Kong have involved step- parents and grandparents. Adoption The adopting parents of adopted children in Hong Kong have rights of custody (see 1.7 Adoption ). Surrogacy It is also possible for a non-genetic parent to obtain custody via a parental order as a consequence of sur - rogacy. At least one of the parents must be genetically linked to the child. There are numerous requirements for such non-genetic parents beyond the scope of this paper, but recently the Court of First Instance was required to consider whether, on relationship break - down, custody orders could be made in the context of a surrogacy arrangement in which a parental order had not been obtained. Without a parental order, the wife was not a legal parent and therefore custody rights could not be bestowed upon her. The Court of First Instance on this specific point found that, in order to be a “child of the family” to whom a custody order would apply, the child did not have to be a biological child of either or both parents: HC , formerly known as HWH v WYH [2024] HKCFI 1157. In all cases, the non-genetic parents (as with any par - ent) are required to demonstrate to the court that the arrangements to be made for the children are in their best interests, which is the first and paramount con - sideration of the court. The court must also take into account the views of the children, having regard for their age and understanding and any material informa - tion, including any reports by the Director of Social Welfare (Section 3 of the GMO).
1.5 Relevance of Marriage at Point of Conception or Birth Marriage is only relevant at the point of birth in the context of the unmarried father, who will need to make an application under Section 3 (1)(d) as referred to in 1.3 Requirements for Fathers , in order to have the same rights as the mother regarding custody. Mar - riage at the point of conception is irrelevant. 1.6 Same-Sex Relationships Same-sex relationships are not legally recognised in Hong Kong. However, the courts have not shown any prejudice towards same-sex families in the context of custody and, as long ago as 2005, joint custody was awarded to both parents and care and control to the mother who had left the father for a same-sex relationship ( W v W [2005] HKFLR 312). More recently, in 2021, in the case of AA v BB [2021] HKCFI 1401, the court granted equal parental rights – custody, care and control – of two children to the non-biological lesbian parent, as social investigation reports and all evidence demonstrated her to be a capable, loving and dedicated parent to the children and it would be in the children’s best interests for her parental rights to be recognised. Recently, in a same-sex case where the parties sought a declaration that the non-biological party was a par - ent under the Parent and Child Ordinance, the Judge at the Court of First Instance found that she was not able to do this under the current legislation, but that there was a right under common law: NK v R (Secre - tary for Justice, Intervener) (Declaration of parentage; same-sex couple) [2023] HKCFI 2233. The rationale was that this would give effect to the original intention behind the current legislation, namely that the para - mount consideration of the court is always the best interests of the children. 1.7 Adoption There are a number of requirements under the Adop - tion Ordinance Chapter 290 that have to be met by the adoptive parents to obtain an adoption order, which will give them rights of custody as if that child had been born to them. • A sole applicant or two spouses jointly may apply (therefore, no unmarried couples).
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