Skip to content

Something urgent? Call us now! (852) 3416 1711

Parentage ‘legal gap’ is now closed

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.

37+ years of legal experience is just a click away.

Friendly and approachable, we are ready to answer your questions and offer you sound advice.

Contact us now

BC&C-contact-us

News & Knowledge

Learn more about what we do and what we say. Subscribe to our newsletter to ensure you receive our updates.

  • This field is for validation purposes and should be left unchanged.

Enduring our trails and tribulations

Hong Kong, 24 May 2023: Hiking with the Stumblers is a leisurely activity. The challenging terrain of Hong Kong’s country parks, coupled with aging limbs and much chatter, means we advance at modest speed, admiring the scenery and stopping for regular rests. Inevitably, we are occasionally required to step aside as some energetic young pups […]

Read more

Law & More: Episode 26 – Grenville Cross

Hong Kong, 22 May 2023: In the latest episode of Law & More, we meet Grenville Cross, Hong Kong’s first post-handover Director of Public Prosecutions. Among many topics, Grenville discusses his early days as a Crown Prosecutor, his distinguished 30-year career in public office and some of the notable cases he handled. He speaks with […]

Read more

Showcasing HK’s political diversity

Hong Kong, 10 May 2023: The Romer’s tree frog is a rare species, native to Hong Kong. This tiny amphibian, first discovered on Lamma Island in 1952 by naturalist John Romer, mainly inhabits wooded areas near streams. Such is the tree frog’s ecological importance, one of its major habitats, Ngong Ping, is designated as a […]

Read more

‘Letters of no consent’ affirmed

By Alex Liu Hong Kong, 5 May 2023: In a significant judgment, the Court of Appeal has overturned a lower court’s ruling that the long-established use of “letters of no consent” from the police to effectively freeze suspicious bank accounts was unlawful. In considering the matter of Tam Sze Leung & Others v Commissioner of […]

Read more

Mental health, a workplace issue

By Arthur Chan Hong Kong, 3 May 2023: A study by the Equal Opportunities Commission (EOC) has revealed high levels of workplace discrimination against employees with mental health issues. Further, many such individuals are reluctant to speak out about their unfair treatment, even though they know they are protected by anti-discrimination legislation. The EOC’s report, […]

Read more