HONG KONG SAR, CHINA Law and Practice Contributed by: Frederick Hui, Terence Luk, Serene Lam and Kenneth Yau, Zhong Lun Law Firm
Zhong Lun Law Firm LLP 4/F, Jardine House 1 Connaught Place Central Hong Kong
Tel: +852 2877 3088 Fax: +852 2525 1099
Email: lawyers@zhonglun.com Web: www.zhonglun.com.hk
1. The Care Provider’s Ability to Take Decisions About the Child 1.1 Parental Responsibility In Hong Kong, the equivalent to the UK’s “paren - tal responsibility” is the legal concept of “custody”, which represents the bundle of rights and authority of parents to make major decisions on behalf of a child concerning their education, development and general welfare. Unlike the statutory definition in the UK, no specific definition of “custody” exists in Hong Kong legisla - tion; rather, its legal meaning has been established through case law, most notably in the case of PD v KWW [2010] 4 HKLRD 191. Statutorily, the principle of equal “parental rights and authority” is set out in Section 3 (1)(b) of the Guardianship of Minors Ordi - nance (Cap. 13) (GMO), which provides that mothers and fathers have equal parental rights and authority that can be exercised by either parent independently. The court’s statutory powers to grant custody are governed by Sections 3 and 10 of the GMO for non- matrimonial or unmarried situations, and Section 19 of the Matrimonial Proceedings and Property Ordinance (Cap. 192) (MPPO) during matrimonial proceedings such as divorce. In Hong Kong, “custody” is frequently used as an umbrella term that collectively encompasses three distinct arrangements: (i) custody – the right to make major decisions regarding a child’s education, devel - opment and general welfare; (ii) care and control – daily care and physical control; and (iii) access – contact with the non-resident parent. Despite their
routine use in family proceedings, these concepts are either not defined or do not even appear in the text of Hong Kong’s primary legislation. While “custody” is mentioned in the MPPO and the GMO, there is no statutory definition explaining what it actually entails. Meanwhile, “care and control”, which is sometimes seen as the most important component of parental right, is not mentioned or defined in the written ordi - nances, leaving the legal system to rely on judicial interpretation and common law case precedents to govern where children live. 1.2 Requirements for Birth Mothers In Hong Kong, a birth mother does not have to meet any special requirements to obtain the parental right because she automatically has the legal right of cus - tody from the moment of her child’s birth under Sec - tion 3 of the GMO. This automatic legal status applies regardless of her marital status, meaning that even if the child is born out of wedlock, the birth mother automatically holds the exact same legal rights and authority as she would if the child were legitimate. 1.3 Requirements for Fathers Whether a father automatically obtains custody depends entirely on his marital status at the point of the child’s birth. If the parents are married, the father automatically shares equal custody rights and author - ity with the birth mother. However, where a child is born out of wedlock, the father does not possess automatic legal rights as a parent per se and must actively apply to the court
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