By Gabriella Chan

Hong Kong, 4 April 2023: There is a telling sentence on the Department of Justice’s website relating to the custody and upbringing of children. It states: “The rights and authority of the mother and father of a child are equal except where the child is born out of wedlock, in which case the mother has all parental rights and authority.”

To be clear, the page does stress that an unmarried father can seek certain rights through the courts, but the law is unambiguous: mother holds sway. It is another example of how unmarried couples in Hong Kong are treated differently from their wedded counterparts. We have already considered how this affects estate provision and financial support in the event of separation. We can now look at what happens if the couple have children.

From the outset, even if the unmarried parents are happily living together and the father’s name is on his child’s birth certificate, he may apply to the court for a so-called Section 3 Declaration under the Guardianship of Minors Ordinance (Cap 13) (the “GMO”) so that he may be legally granted some or all of the rights and authority he would have had as a father had the child been born in wedlock. In reaching its decision, the court will consider factors including the father’s level of commitment towards the child, the degree of attachment between them and the father’s reasons for seeking the order.

It is also worth noting that if the father’s name is not on his child’s birth certificate, a child may apply to the court under section 6 of the Parent and Child Ordinance (Cap 429) (the “PCO”) for a declaration that the father is in law his parent and that he is the legitimate child of his parents.

But the disparity in how the law treats married and unmarried parents is really illuminated in the event of separation. The former are bound by the Matrimonial Proceedings and Property Ordinance (Cap 192) (the “MPPO”) under which the parent with care and control is entitled to claim financial support for that child from the other parent. This can be done even before the divorce is finalised, i.e. before a Decree Absolute is granted, under a claim for interim maintenance.

In assessing what financial provision should be made for a child under the MPPO, the court shall consider all the circumstances of the case, especially the standard of living enjoyed by the family before the breakdown of marriage; the financial needs of the child; the manner in which the child was being raised and educated; any physical or mental disability of the child; and the financial resources and needs or obligations of the parties to the marriage. According to section 7 of the MPPO, the court should attempt to place the child in the same financial position they would have enjoyed had the marriage not broken down.

When unmarried couples go their separate ways, the MPPO is not applicable and the applicant parent will need to rely on section 10 of the GMO for child support.

An unmarried father’s legal vulnerability is also thrown into sharp focus should the mother, without giving notice, decide to leave Hong Kong with their child. If he has not previously secured a Section 3 Declaration, then invoking the Hague Convention on the Civil Aspects of International Child Abduction – which aims to immediately secure the return of a child to their habitual residence – may be more difficult.

More than 31 years ago, the Law Reform Commission of Hong Kong’s Report on Illegitimacy recommended elimination of the distinctions drawn by the law between children born to married and unmarried couples. It noted the latter were disadvantaged in many areas, including succession, adoption, maintenance, pensions, guardianship, custody, nationality, domicile and registration of births. The report proposed that the same range of court orders relating to maintenance payments should be available to all children, regardless of parentage.

But this latter proposal regarding maintenance payments was not addressed in the resulting legislation, the PCO, enacted in 1993. It consolidated and amended certain aspects of the law relating to paternity and legitimacy while covering determination of parentage in cases where birth or pregnancy resulted from medical treatment.

It is the view of some legal professionals that this city requires legislation which brings an end to the differential treatment of children of unmarried parents. Until then, such couples should be fully aware of their rights and obligations towards their children. In this regard, the Family Law team here at BC&C are ready to 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.