HONG KONG SAR, CHINA Law and Practice Contributed by: Frederick Hui, Terence Luk, Serene Lam and Kenneth Yau, Zhong Lun Law Firm
under Section 3 (1)(d) of the GMO. To succeed in this application, he must satisfy the court of his paternity, after which the court may grant him some or all of the rights and authority the law would allow him as if the child were legitimate. Throughout this statutory pro - cess, the court regards the best interests of the child as the first and paramount consideration. 1.4 Requirements for Non-Genetic Parents In Hong Kong, a non-genetic parent must secure legal custody through distinct legal pathways, all of which require proving that the arrangement is in the child’s best interests as the court’s paramount consideration, as per Section 3 of the GMO, which is known as the welfare principle. Adoption Adoption is discussed in detail in 1.7 Adoption . Foster Parents Managed by the Social Welfare Department (SWD), Foster Care Services provide temporary, family-based residential care for children under 18 whose parents are unable to look after them, including short-term emergency placements capped at six weeks during crisis situations. Legally, foster parents do not hold guardianship or adoptive rights over their foster children, nor does it create custody, guardianship or parental status. Under Section 10 of the GMO, standing to apply for child custody is restricted exclusively to the biologi - cal parents and the Director of Social Welfare (DSW), meaning foster parents cannot independently apply for custody unless the DSW acts on their behalf. Guardianship Under GMO, a privately appointed guardian only obtains parental rights and authority upon legally assuming the office, which requires strict compliance with statutory preparation and activation rules. First, a separate, standard appointment form must be completed for each individual guardian, containing the names, addresses, and identity card numbers of the appointing parties, as well as the names and identity card numbers of the appointees. The form must for - mally confirm that the minor’s views have been taken
into account as far as practicable in light of their age and understanding, and due consideration must be given to the child’s relationship with the intended guardian. To have legal effect, the document must be dated, signed by the appointer (or by someone in their presence and at their direction), attested by two witnesses, and accepted by the appointee either expressly, ideally by signing the form, or impliedly through conduct. Once validly appointed, the guardian automatically assumes guardianship upon the appointer’s death only if the appointing parent or guardian held a cus - tody order or lived with the minor immediately before dying, and the minor has no surviving parent or other guardian. In all other circumstances, the appointee has no automatic rights and must formally apply to the court to assume guardianship. In these court pro - ceedings, the court may order the appointee to act jointly with a surviving parent, act to the exclusion of a surviving parent, act only after a specified event, or be removed entirely. Separately, under Section 34 of the Protection of Children and Juveniles Ordi - nance (Cap. 213), a juvenile court can bypass private appointments entirely and commit the care of a child or juvenile deemed in need of care or protection to any relative or non-relative who is willing to undertake Pursuant to Section 12 of the Parent and Child Ordi - nance (Cap. 429), a married couple, with one of them being a gamete donor, may obtain a parental order to transfer legal parenthood to themselves by satisfying several strict statutory requirements, even where one parent lacks a genetic link to the child. To qualify, the applicants must be lawfully married, and at least one spouse must have provided the gam - etes used to create the embryo. Both spouses must be at least 18 years old when the order is granted, and the application must be submitted within six months of the child’s birth. Additionally, at both the time of application and the granting of the order, the child must reside with either or both applicants. At least one spouse must also be domiciled in Hong Kong, habitu - ally resident there for the preceding year, or possess a substantial connection to the territory. their care. Surrogacy
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