Parental Rights For Same-Sex Partners In Hong Kong

• Published date: 22 June 2021
• Subject Matter: Family and Matrimonial, Family Law
• Law Firm: Gall
• Author: Ms Caroline McNally and Chantelle Woo

At present, same-sex marriages and civil partnerships are not recognised under the laws of Hong Kong. This means that same-sex couples do not currently enjoy the same parental rights as opposite-sex couples in Hong Kong. Consequently, same-sex parents are not attributed equal parental rights.

In the recent decision of LS v KG [2021] HKCFI 1401, it was ruled by the Court of First Instance that a non-biological parent of a child born by his/her former same-sex partner should be granted guardianship rights, joint custody and shared care over his/her children.

Facts

This case involved a lesbian couple with 2 children, L and F aged 11 and 9 respectively at the time of the application. The Applicant, LS, gave birth to the children with the assistance of a sperm donor, and the Respondent was the non-biological parent. The first child, L, was born in Australia by the Applicant with both parties registered as legal parents; but in respect of the second child, F, who was born in Hong Kong, only the Applicant was listed as the child's parent as it was not possible for the Respondent to do so under the laws of Hong Kong.

Upon the end of their cohabitation, the parties reached a co-parenting agreement whereby the children would stay with either the Applicant or the Respondent on alternate weeks with handovers on Fridays after school. The Court application was issued in an attempt for the Respondent to also be made a legal guardian of the children, and for both parties to be granted joint custody and joint care and control of the children.

Legal Analysis

In arriving at its decision, the Court of First Instance considered the following:

1. Since the parties were able to share their parental responsibility towards their children amicably, and that the children have been benefitting from their parents' love and care throughout their upbringing, it would be in the best interest of the children to grant joint custody, care and control of the parties due to their close relationships with the children, the power of which was derived from s.10(1) of Guardianship of Minors Ordinance ("GMO").

2. The welfare of the child should be the first and paramount consideration. The Court considered the Social Welfare Report and the 'Welfare Checklist' set out in both the Children Proceedings (Parental Responsibility) Bill and Baroness Hale's judgment in in J & Another v C & Others [1970] AC 668 in which the House of Lords had held that the welfare principle was equally applicable to disputes...