By Gabriella Chan
Hong Kong, 25 April 2023: In our recent blog concerning the legal rights and responsibilities of unmarried parents, we highlighted that a minor may apply to the court for a declaration that a person is, in the eyes of the law, their parent (usually father) and that they are the legitimate child of their parents.
But can a child seek a declaration that someone is not their parent? Until recently, the answer was unclear, but a landmark ruling in the Court of First Instance has granted just such an application and, in so doing, closed a gap in the law.
In the matter of Z, a minor suing by his mother and next friend X v. Y [2022] HKCFI 3695, the applicant (Z) was seeking a formal ruling from the court that the man (Y) identified as the father on his birth certificate was, in fact, not so. The court accepted that a DNA test had confirmed this to be the case.
At issue was whether the court had jurisdiction to make a declaration of non-parentage under section 6 of the Parent and Child Ordinance (Cap 429) (the “PCO”). If not, the court had to consider whether it had inherent jurisdiction as parens patriae – its paternal and protective role over citizens – and/or power under Order 15 rule 16 of the Rules of the High Court to make such a declaration. The Secretary for Justice was granted leave to intervene and invited the court to dismiss Z’s application. Y, meanwhile, did not contest it.
Z had first issued an originating summons in the Family Court to seek a declaration of non-parentage, namely that Y was not his father. At an early stage, the judge pointed out the court did not have jurisdiction to make a such a declaration and the matter was adjourned for Z to take legal advice.
Z then filed an amended originating summons to seek a declaration that Y was his father. This gave the court a conundrum. The judge agreed that since there was unequivocal evidence that Y was not the father, it could not be right to grant the declaration as sought. The judge thus dismissed the amended originating summons but said he was prepared to state in the order that “the court is satisfied by the evidence that [Y] was in fact not the father of [Z]”, although he added he did not know if this would be of any help to Z.
Rather than appeal against the Family Court judgment, Z issued an originating summons in the Court of First Instance, again seeking a declaration that Y was not his father. After reviewing the Family Court judgment and the relevant sections of the PCO, the Honourable Madam Justice Bebe Chu agreed the court did not have the power to grant a declaration of non-parentage under section 6 of the PCO. She pointed out “there is a gap in the existing statutory scheme in Hong Kong” – that is, the provisions of the PCO – and stated: “I am of the view the court can turn to its inherent jurisdiction to fill the gap.”
Madam Justice Chu confirmed a declaration of non-parentage could be facilitated by Order 15, rule 16 of the Rules of the High Court. She said that since Z was still a minor, his best interests were of paramount consideration, and concluded: “I have come to the view that the declaration is of use to Z and this would be in Z’s best interests.”
Thus ended an unusual case, one that brings a further degree of clarity concerning the legal rights and obligations of unmarried parents and their children. Thankfully, matters in this area are usually more straightforward and can be handled accordingly. Here at BC&C, members of our Family Law team are ready to listen and provide assistance.
Gabriella Chan is a Senior Associate with BC&C. She focuses her practice on Family Law, being proficient in a wide range of matters arising from the matrimonial context, and is also active in the Hong Kong Family Law Association. She can be contacted at Gabriella@boasecohencollins.com.
