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FCMP 148/2017
[2021] HKFC 46
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FAMILY COURT
MISCELLANEOUS PROCEEDINGS
NO. 148 OF 2017
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| BETWEEN |
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CD |
1st Applicant |
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TCH |
2nd Applicant |
and |
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TKH |
1st Respondent |
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THK |
2nd Respondent |
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Coram: Deputy District Judge Thelma Kwan in Chambers (not open to public)
Date of Hearing : 19 November 2020
Date of Judgment : 5 March 2021
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J U D G M E N T
(Parental Declaration, DNA Test, Custody and Maintenance)
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1.This is a case in which a child, the 2nd Applicant (the “Child”) is applying for a parental declaration under Section 6 of the Parent and Child Ordinance (Cap 429) (“PCO”) that the 2nd Respondent (“T”) is his father, and for direction to take bodily samples from him and for the use of scientific tests (“DNA Test”) to determine whether he is the Child’s father under Section 13 of the PCO. The 1st Applicant (the “Mother”) is the Child’s mother who seeks his custody and maintenance from T under the Guardianship of Minors Ordinance (Cap 13) (“GMO”).
2.The present hearing is of T’s application by his summons of 2 November 2018 (“T’s Summons”) to dismiss the Mother and Child’s Re-Amended Originating summons (“Re-Amended OS”) filed on 7 November 2017; in the alternative, T seeks a stay of proceedings on grounds of Forum Non Conveniens.
3.There is also a separate Summons by the Child dated 10 September 2018 also for T to take DNA Test (the “DNA Summons”).
Background
4.Mother is a Mainland resident who is now 42 years of age. The Child was born in Hong Kong on 20 December 2010 at the Hong Kong Baptist Hospital, and is now 10. They are both living in Shenzhen.
5.T is a Hong Kong resident and aged 65. He is married with two children in Hong Kong. He was a businessman with operations in Hong Kong and the PRC. In his first affirmation, he said he is retired.
6.Mother met T in Shenzhen in 2003. It is not in dispute that Mother and T had an intimate relationship.
7.According to T’s own evidence, he was aware that Mother was pregnant, and he did visit and care for the Child after his birth.
8.It was T who introduced the 1st Respondent (“R1”) to Mother in 2003. R1 is named as the father on the Child’s birth certificate. He had never taken part or appeared in these proceedings.
9.On 28 March 2013, the name of the Child was changed from TR (same surname as R1) to TCH (same surname as T). It is T’s evidence that Mother approached him for this to be done, and T said that he felt it would not affect him; T acknowledged that he arranged for this to be done at a solicitor’s office.
10.In mid-2016, Mother enrolled the Child in primary one of a school in Ma On Shan, Hong Kong. On 3 September 2016, Mother entered into a 2-year tenancy agreement for an apartment in Ma On Shan where she could reside in Hong Kong with the Child. She also produced evidence that the gas account for the Ma On Shan apartment was opened in the name of T in September 2016, and gas invoices issued in his name.
11.From that time on, Mother shuttled back and forth between Hong Kong and the Mainland. Mother only had a visitor visa so she was not able to stay in Hong Kong for a long period of time. Travel records of the Mother and Child were produced as evidence in the Mother’s 4th Affirmation. According to the travel records, the Mother left Hong Kong with the Child on 30 June 2017, and returned to Hong Kong afterwards only for short stays. This ended the Child’s residence period in Hong Kong. Child was enrolled into a school in Shenzhen the following academic year in September 2017.
12.T and the Mother were in business together. In around December 2016, they were in litigation as to the beneficial ownership of the shares of the business they started together, and other financial matters. The proceedings in the Mainland came to a close in around February 2019, and does not affect the present proceedings, except to the extent that it created a backdrop to the deterioration of relationship between the Mother and T.
The Mother’s case
13.The Mother’s case is that T is the biological father of the Child.
14.The Mother said that she met T at a KTV lounge where she worked part time in 2003; when they started their intimate relationship, she knew that T was married and had a family in Hong Kong. They cohabited for a period of time in Shenzhen.
15.Mother claimed that T grew distant after she got pregnant, she felt that it was because T became very conscious that it might affect his family. After the Child was born, it was T who proposed to the Mother to use his friend R1’s name on the Child’s birth certificate. It was also agreed that they would change the name of the Child at a later stage. The Mother’s evidence was that on 28 March 2013, in the company of and under the direction of T, Mother and R1 signed the Deed Poll for the Child to change his name to use T’s surname.
16.Mother claimed that she never had an intimate relationship with R1.
17.When the Child was studying in primary one in Hong Kong between September 2016 to June 2017, the Child lived in the rented apartment. The Mother would commute to work in Shenzhen and return to Hong Kong at night to take care of the Child, but the commuting had clearly taken a strain on the Mother. Around March 2017 and after, Mother’s sister assisted with looking after the Child. Mother felt it was increasingly inconvenient as she worked in the Mainland, therefore in around July 2017, she brought the child back to Shenzhen.
T’s case
18.T does not dispute that he had an intimate relationship with the Mother, but when informed that the Mother was pregnant, he claimed that his understanding with the Mother was that she would not give him any trouble, and that she would be solely responsible for the Child. Contrary to what the Mother said, he disputed that he was present when Mother gave birth; but he did accompany R1 and the Mother to the Birth Registry where he claimed that the Mother decided to enter R1’s name as the father.
19.T never admitted or denied whether he was the father. He said he could not confirm this, nor intended to. He also claimed that he might not be the only person with whom the Mother had an intimate relationship. Despite this, he did help take care of Mother and Child.
20.T’s leading counsel collated the travel records of Mother and Child provided in the Mother’s 4th Affirmation, which was exhibited in her submission, and showed the following:
(1) After the Child’s birth on 20 December 2010, he only stayed in Hong Kong for 10 days, and left Hong Kong with the Mother on 30 December 2010;
(2) All along, the Child seldom stayed in Hong Kong until the period from September 2016 to 30 June 2017 (10 months) during which the Child studied Primary 1 in Hong Kong;
(3) During the said 10 months in Hong Kong, the Child went back to Shenzhen nearly every weekend and during all long holidays including Christmas holiday, Chinese New Year and Easter;
(4) The Mother only stayed in Hong Kong more frequently between the 6-month period from September 2016 to February 2017, since March 2017, Mother had stayed more in Shenzhen despite the Child was studying in Hong Kong. She spent 15 days in March, 6 days in April, 7 days in May and 17 days in June in Hong Kong. Then Mother and Child left Hong Kong together on 30 June 2017;
(5) After 30 June 2017, Mother came back to Hong Kong briefly on 3 August 2017. Child came back to Hong Kong for only two same-day visits on 12 July 2017 and 7 October 2017.
21.Mother took out her Originating Summons on 26 July 2017, T’s case was that both Mother and Child had already moved back to Shenzhen at that point of time, and as the Child started school in the Mainland in September 2017, the Mother’s intention must be for the Child to live his life in the Mainland after leaving Hong Kong on 30 June 2017.
Development of these proceedings
22.Mother filed an Originating Summons to commence these proceedings on 27 July 2017.
23.She subsequently sought and obtained leave to add the Child as a party, and the amended originating summons was filed on 14 September 2017.
24.On 7 November 2017, the Originating Summons was further amended to add in T’s address, which became the Re-Amended OS in these proceedings.
25.The Re-Amended OS contains the following applications:
a. The Child seeks declarations pursuant to Section 6 of the PCO that T was and is the natural father of the Child;
b. The Child further seeks directions under Section 13 of the PCO for use of scientific tests and bodily samples to be taken to determine whether R1 or T is the father of the Child;
c. Mother applied under Section 10(1) of the GMO for custody, care and control of the Child; and
d. Mother applied under Section 10(2) of the GMO for maintenance of the Child.
26.By an Order of HHJ CK Chan on 3 November 2017, leave was granted to the Secretary for Justice (“SJ”) to intervene into these proceedings. The intervention was with regard to the application by the Child. However, the SJ’s submission dated 3 January 2018 was made on the basis that the Child’s claim for parentage was based on domicile; and at that point of time, as T had not entered into these proceedings yet, the SJ did not have enough information to make submission on the DNA Test.
27.After the Child obtained legal representation under Legal Aid in September 2018, the DNA Summons was issued.
28.T first appeared in these proceedings on 12 September 2018, he then initiated the T’s Summons on 2 November 2018, which challenged the jurisdictions of all the issues raised in the Re-Amended OS.
29.An Order was made on 8 November 2019 by HHJ CK Chan setting down trial date for T’s Summons and the DNA Summons.
The Issues
30.Based on the facts of this case, the issues before the Court are as follows:
i. Does the Court have jurisdiction to order a parental declaration under Section 6 of the PCO?
ii. Does the Court have jurisdiction to direct the scientific test under Section 13 of the PCO?
iii. Does the Court have jurisdiction to determine the issues of custody of the Child?
iv. Does the Court have jurisdiction to determine the issues of maintenance for the Child?
v. If the Court has jurisdictions, it needs to consider whether the Nanshan Court in Shenzhen is the more appropriate forum under the principles of Forum Non Conveniens.
31.This decision will not be dealing with the substantive content of the Re-Amended OS.
Jurisdiction on Declaration of Parentage
32.Section 6 of the PCO reads as follows:
6. Declarations of parentage, legitimacy, or legitimation
(1) Any person may apply to the court for a declaration that—
(a) a person named in the application is or was in law his parent;
(b) he is the legitimate child of his parents; or
(c) he has become, or has not become, a legitimated person.
(2) A court shall only have jurisdiction to entertain an application under this section if, at the date of the application, the applicant—
(a) is domiciled in Hong Kong;
(b) has been habitually resident in Hong Kong throughout the period of 1 year ending with that date; or
(c) has a substantial connection with Hong Kong.
(3) Where on an application for a declaration under this section the truth of the proposition to be declared is proved to the satisfaction of the court, the court shall make that declaration unless to do so would manifestly be contrary to public policy.
(4) Where a declaration is made on an application under subsection (1)(a) or (b), the Registrar of the court shall notify the Registrar of Births and Deaths, in such manner and within such period as may be prescribed, of the making of that declaration.
(5) Any declaration made under this section shall be binding on the Crown and all other persons.
33.While T’s leading counsel’s first submission extensively addressed principles relating to both domicile and substantial connection, counsel for the Child confirmed in his written submission and at the hearing that on the application with regard to parentage, he is only relying on the Child’s substantial connection to Hong Kong. This decision will therefore focus only on this limb under section 6(2)(c) of the PCO.
34.The case law on “substantial connection” has been clearly laid down in the following authorities. The starting point here is as stated in the case of Re WSJ (Minor) (Parentage: jurisdiction) [2019] 1 HKLRD 977 at paragraph 43:
“… in our view, there should be no distinction drawn between an adult and a child on a statutory interpretation of “substantial connection”.
35.Reference must be made to the meaning of “substantial connection” enunciated by Hartmann J in S v S [2006] 3 HKLRD 751 where he held that the phrase should be given its ordinary meaning, that it was sufficient to demonstrate “a” substantial connection with Hong Kong but not necessarily the only substantial connection or the most substantial connection, and that it must be real and of sufficient significance and not temporary or transitory:
“[13] In my view, when considering the meaning and extent of the [phrase], it is important to recognise that the Legislature saw fit to qualify it with the indefinite article “a”. It is not therefore necessary for a petitioner to demonstrate that his substantial connection with Hong Kong is the only substantial connection he has with any jurisdiction or that his connection with Hong Kong is the most substantial connection he has with any jurisdiction. No exercise of comparisons is required. It is sufficient if he demonstrates that, among others perhaps, he has “a” substantial connection with Hong Kong.
….
[15] But, of course, if the Hong Kong courts are to exercise jurisdiction, it must be shown on a balance of probabilities that a petitioner not merely has a connection with Hong Kong but that, bearing in mind the scope and purpose of the Ordinance, the connection is “substantial”.
[16] “Substantial” is a plain enough English adjective. We all understand what it means – at least in substance (if I may be excused the play on words). I say that because it is not a word that lends itself to precise definition or from which precise deductions can be drawn. To say, for example, that “there has been a substantial increase in expenditure” does not of itself allow for a calculation in numerative terms of the exact increase. It is a statement to the effect that it is certainly more than a little but less than great. It defines, however, a significant increase, one that is weighty or sizeable.
[17] It speaks for itself, I think, that an artificially constructed connection will not be a substantial one. A connection must be real in the sense, for example, that it has not been engineered for temporary tactical advantage. It was not the intention of the Legislature (in passing s.3(c) into law) to create a convenient off-shore divorce jurisdiction. As it has been said in an earlier authority, the subsection is not intended for “birds of passage”.
[18] As the jurisdiction looks to the determination of matrimonial proceedings, a material factor will be whether both parties to the marriage have lived in Hong Kong and, if so, how long they have lived here, as man and wife. But those factors will not necessarily be determinative. In each case the factors to be considered will be different and the weight to be given to them, in the factual context of each case, will no doubt be different too.
[19] In summary, whether – for the purpose of the Ordinance – a connection is substantial or not can only be determined on the basis of a broad objective assessment, taking all relevant factors into account.”
36.Hartmann J in B v A [2008] 1 HKLRD 43 supplemented further his decision in S v S by adding that whether or not the connection was of sufficient substance, significance and worth, is to have regard to the facts of the case and coming to a broad conclusion based on those facts, and that an artificially constructed connection would not be a substantial one, as it would not be the Legislature’s intention to create a convenient off-shore divorce jurisdiction:
“[22] It is, of course, fundamental that s.3 of the Matrimonial Causes Ordinance confers jurisdiction in respect of divorce proceedings. In S v S, I spoke of this in the following terms:
While I accept that in many different respects a substantial connection may be forged in a matter of weeks, or even days, what cannot be ignored, in my judgment, is that the substantial connection which is contemplated in the Ordinance is one which gives jurisdiction to the Hong Kong courts in respect of matrimonial causes; that is, to matters going to the dissolution of marriage – still a profound matter in the eyes of the law – and to matters which flow from that, for example, matters of custody and property distribution.
[23] In the circumstances, it seems to me that the factual issue of whether or not a party had a substantial connection with Hong Kong at the time of the institution of proceedings may conveniently be determined by asking two questions. First, did the party have a connection with Hong Kong? Second, was that connection of sufficient substance; that is, of sufficient significance or worth, to justify the courts of Hong Kong assuming jurisdiction in respect of matters going to, and consequential upon, the dissolution of that parties’ marriage?
[24] In respect of the second question, in Savournin v Lau Yat Fung, Briggs J observed that:
while it may be nearly impossible to give a definition embracing all the cases where it can be said that a party to the marriage has a “substantial connection” with Hong Kong, it is not difficult to determine when circumstances do not show a substantial connection. [Counsel] instanced two persons coming here only for the purpose of obtaining a decree. Naturally that by itself is not enough nor is the fact that the marriage was celebrated in Hong Kong sufficient of itself.
[25] In S v S, I complemented this by saying:
It speaks for itself, I think, that an artificially constructed connection will not be a substantial one. A connection must be real in the sense, for example, that it has not been engineered for temporary tactical advantage. It was not the intention of the Legislature (in passing s.3(c) into law) to create a convention off-shore divorce jurisdiction.
[26] Clearly, as I have said, it was not the intention of the Legislature to create a “fly in and fly out” divorce jurisdiction. What is required under s.3(c) is not merely a connection but a substantial connection. But that being said, I do not accept that a person who has come to live in Hong Kong for a limited period of time is, by that fact alone, incapable of establishing a substantial connection with Hong Kong. As I have emphasised, the particular facts of each case must be taken into account. The question must therefore be asked: what are the circumstances relevant to the limited period of residence and just how limited is it intended to be? To illustrate my point, good sense dictates that there is a difference between residing in Hong Kong for a month or two to oversee a short-term project and being posted here together with one’s family for a period of several years.”
37.In ZC v CN [2014] 5 HKLRD 43, Cheung JA (as he then was) summarized the principles at paragraphs 9.4, 9.8 and 9.9:
“9.4 Whether a person has a substantial connection with Hong Kong is clearly a question of fact. No definition for this term will be succinct or comprehensive enough. What one may do is to look at the surrounding factors to see whether that person is substantially connected with Hong Kong at the time of the petition. As a starting point, one begins to see if that person has connection here and then decide whether that connection is a substantial one, see S v S [2006] 3 HKLRD 751 paragraph 15. In terms of connection, there must be physical presence in Hong Kong, this must be the ground rock of invoking the divorce jurisdiction. But because of the requirement of ‘substantial’, the presence cannot be of a transitory nature otherwise this will encourage ‘fly in’ and ‘fly out’ divorces, a theme that the Court has consistently emphasised, see, for example, Griggs (nee Sharp) v Griggs [1971] HKLR 299, Ta Tran Thi Thanh v Ta Van Hung and Another [1981] HKDCLR 37 and more recently S v S, B v A [2008] 1 HKLRD 43.
…
9.8 The fact that a party has resident status which allows him or her to live here legally is only a factor to be taken into account. He or she may not be living here on a long term basis and only comes here occasionally. No doubt one has to look at other factors such as the party’s past pattern of life, the frequency of his visit to Hong Kong, the length and purpose of the stay, whether the party is engaged in business or work here, whether the rest of the family is here and whether a home has been established here and whether the children are at school here. It is also important to bear in mind that since the legislation only requires the party to establish a substantial connection in Hong Kong, he or she at the same time may have a substantial connection elsewhere, see S v S. In my view, if a party is shown to have substantial connection elsewhere by reason of his home or work, this may be used to contrast with the connecting factors he has in Hong Kong to see whether the Hong Kong connection is a substantial one.
9.9 It is said in Savournin at page 184 (and also B v A at paragraph 20) that a meaning must be given to substantial connection wider than domicile or three years’ ordinary residence. But this is not intended to be interpreted so loosely as to encourage residence of passage (Indyka v Indyka [1969] 1 AC 33 at 105) or divorce of convenience. At the same time it will be unduly restrictive if one confines the connecting factors solely to that of a family context, namely, accommodation in a matrimonial home and presence of spouses and children. While in the majority of cases, family context is the focus of the inquiry and a material factor, there may well be situations where a party is in Hong Kong without the presence of his family, but nonetheless is able to show that he has a substantial connection here. It really depends on the circumstances of the case. Such cases, however, must be regarded as exceptional.”
38.Two other cases relied on by the respective parties which discussed the principles of substantial connection in the context of the PCO, are Re WS (Minor) (Jurisdiction : Substantial Connection) [2017] 1 HKLRD 282 and Re WSJ (Minor) (Parentage : Jurisdiction), supra.
39.The case of Re WS involved a minor born in Hong Kong, with the right of abode and permanent resident status in Hong Kong. He and his parents all resided in Shenzhen, and the minor had been attending kindergarten in Hong Kong since September 2015. He had to cross the border every school day, and this had been on-going up to and beyond the date of his application for parental declaration made on 15 April 2016; Deputy DJ I Wong (as he then was) stated at paragraph 12:
“The applicant is merely a 4 year-old child. It is safe to assume that he is dependant entirely on his parents as regards his day-to-day care. On the facts of this case, I cannot see what more he could have done in order to establish a closer connection with Hong Kong if his carers have no right to reside in Hong Kong.”
The Judge concluded that the child had a substantial connection with Hong Kong, and which gave the Court the jurisdiction to make an order under Section 6(2)(c) of the PCO.
40.In the case of Re WSJ, the child was born in Hong Kong, and therefore was a permanent resident of and has right of abode in Hong Kong; none of the adult parties had any connection with Hong Kong. The child applied for a Section 6(1) declaration under the PCO as there was an error in his birth certificate. In this case, the only connection the child had was his permanent resident status, and sporadic visits to Hong Kong, he never lived here. Deputy DJ G Chan (as she then was) came to the conclusion that the child did not have a substantial connection with Hong Kong, and this decision was confirmed by the Court of Appeal. At the appeal, counsel for the child argued that the Court should adopt a more relaxed approach to determine the jurisdiction requirement under the PCO, and that the best interest of the child should be taken into consideration. He argued that the line of cases establishing the definition of “substantial connection” should not apply to an application under Section 6(1) of the PCO and that the Court should adopt a lower threshold. All these arguments were rejected by the Court of Appeal, at paragraph 43:
“43. The only substantial point that has been put forward by the applicant is that it is in the best interest of the child for this Court to accept jurisdiction. We are unable to accept this submission. This is tantamount to putting a gloss on the plain words of ‘substantial connection’. In our view, there should benodistinctiondrawnbetweenanadultandachildonthe statutory interpretation of ‘substantial connection’. Mr Chow referred to QMY v. GSS (2017) 20 HKCFAR 303 in which the Court of Final Appeal held that the Family Court had jurisdiction to order maintenance for an ex- nuptial child living with her mother in the Mainland against the child’s father who was living in Hong Kong but who had been properly served in Hong Kong with the proceedings. The application was made under section 10(2) of the Guardianship of Minors Ordinance (‘GMO’), Cap. 13. Unlike the PCO, MCO and MPPO, there is no jurisdictional requirement in the GMO. This case does not assist the applicant once its context is properly understood. The Court of Final Appeal did not decide the case on the basis that the child’s best interest as the first and paramount consideration should be adopted in statutory interpretation, let alone across the board for all statutes.”
41.The Child’s counsel argued that the factual matrix of his case is close to that of Re WS. He relied on the following basis:
“(1) A2 was born in Hong Kong:
(2) A2 has the right of abode and permanent resident status in Hong Kong;
(3) When A2 was 6 years old, he lived in Hong Kong for at least a period of 11 months (from September 2016 to July 2017) with A1 renting a home in Ma On Shan;
(4) A2 had attended primary school every day in Hong Kong for the full academic year of 2016-2017. A 2 had left Hong Kong through no choice of his own. As a 6 years old, he had no choice but to follow his mother.”
42.Counsel for the Child also tried to argue that in considering this section of the PCO, the best interest of the Child needs to be taken into consideration. Looking at the authority of Re WSJ abovementioned, I do not accept this argument. Section 6(2) clearly states that the Court will only have jurisdiction if any of subsection (a) to (c) is satisfied.
43.T’s leading counsel submitted that the Mother’s stay in Hong Kong and enrolling the child into school is a contrived and artificially construed connection to create the nexus to take out these proceedings.
44.I do not accept that that proposition is the only reasonable one to be drawn. Looking at the evidence, the Mother had never explained why she brought the Child to study in Hong Kong; it may well have been that as the Child has Hong Kong permanent resident status, she might have wanted the Child’s education to take place in Hong Kong for different opportunities. Things might not have turned out the way she wanted, and she decided to move back to China in July 2017. As pointed out by T’s leading counsel, Mother had started these proceedings on 27 July 2017. If the Mother had known to create the nexus to enable her litigation strategy, she could have stayed a few more weeks to bring herself within the second limb of Section 6(2)(b) of the PCO.
45.That said, in my view the Child has failed to establish that he has a substantial connection with Hong Kong, all he has is a permanent residence status by virtue of his birth here, and his short-term residence in Hong Kong for his education for 10 months. Looking at the travel record, I accept that he was here for a continuous period only from September 2016 to 30 June 2017, as put forward by T’s leading counsel. But these factors together do not create a sufficient substantial connection, and certainly there were no substantial connection at the date of application as required by the legislation.
Jurisdiction regarding the taking of DNA test
46.Section 13 of the PCO reads as follows:
13. Declarations of parentage, legitimacy, or legitimation
(1) In any civil proceedings in which the parentage of any person falls to be determined, the court may, either of its own motion or on an application by any party to the proceedings, give a direction –
(a) for the use of scientific tests showing whether a party to the proceedings is or is not the father or mother of that person; and
(b) for the taking of bodily samples from that person or any party to the proceedings, and the court may at any time revoke or vary a direction previously given under this subsection.
47.Both counsel for the Child and for T had quoted the case of Zhao Ying v Chow Lai Ching & Others [2010] 4 HKLRD 500 (also reported in [2010] 6 HKC 217), which is the often-quoted judgement of Bharwaney J regarding the Court’s discretion as to whether to give directions for DNA Test:
“25. Both Mr Fung and Mr Hui pointed me to various English authorities where the factors affecting the exercise of the court’s discretion in giving a direction for scientific tests to be carried out were considered, including S v. S; W v. W [1972] AC 24 (at 44F-45E per Lord Reid; at 53C-56C per Lord Morris; and at 58F-59D per Lord Hodson); and the decision of Bodey J in Re T (Paternity: Ordering Blood Tests) [2001] 2 FLR 1190. The following statements of Lord Hodson at p. 57H-58A and at p. 59B-C bear repeating:
“The interests of justice in the abstract are best served by the ascertainment of the truth and there must be few cases where the interests of children can be shown to be best served by the suppression of truth. Scientific evidence of blood groups has been available since the early part of this century and the progress of serology has been so rapid that in many cases certainty or near certainty can be reached in the ascertainment of paternity. Why should the risk be taken of a judicial decision being made which is factually wrong and may later be demonstrated to be wrong?
…
Who is to say what is in the interests of the child and whether knowledge of true paternity would or would not favour his or her future prospects in life? How are these interests to be assessed? I find these questions especially difficult to answer in view of the fact that it must surely be in the best interests of the child in most cases that paternity doubts should be resolved on the best evidence, and, as in adoption, the child should be told the truth as soon as possible.”
I have also considered the cases of Re H (Paternity: Blood Tests) [1996] 2 FLR 65 and Re CG (A Minor) (Blood Tests) [1994] 2 FCR 889, 1 FLR 495. Whilst each case must be determined on its particular facts, the following broad principles appear to me to have general application:
(i) The interests of justice are best served by the ascertainment of truth;
(ii) courts should be furnished with the best available scientific evidence, particularly if that evidence proves or disproves paternity with certainty or near certainty;
(iii) a child’s welfare generally demands that he or she knows the truth about his or her parentage;
(iv) the welfare of the child is a relevant but not paramount factor in deciding whether or not to make a direction for the use of scientific tests: the interests of other persons may also be involved and have to be considered;
(v) the outcome of the proceedings in which the direction is sought is not a factor in deciding whether or not to make a direction; the question of paternity is free-standing and the application for the court to make a direction for scientific tests to determine the issue of parentage is entitled to its own considerations;
(vi) prospective non-compliance by a parent of a child under 16, or by a child over the age of 16, or by an adult is a factor to be taken into account but is not determinative of the issue of whether or not a direction should be made;
(vii) in general, DNA testing is in the child’s best interests where doubts as to paternity are in the public domain.
48.T’s leading counsel submitted that:
“56. As there must be civil proceedings in which the parentage of any person falls to be determined, this Court has jurisdiction to direct scientific tests only if it is satisfied that it has jurisdiction to hear any of the applications of the Mother or Child and that Hong Kong is the appropriate forum for the said applications. It follows that in the context of the present case, if the Court rules in favour of T’s application and dismisses the Mother’s parental application, no scientific test fall to be directed.
57. In case the Court decided in favour of the Mother on jurisdiction / forum, T does not dispute that ordering a DNA test serves the Child’s best interest.”
49.I shall return to the jurisdiction challenge by T on the Child’s application for DNA test in the Re-Amended OS and for the DNA Summons, after the analysis of the GMO applications below.
Jurisdiction regarding Mother’s claim for custody
50.This is the Mother’s application. Section 10(1) of the GMO reads as follows:
“(1) The Court may, on the application of either of the parents of a minor (who may apply without next friend) …, make such order regarding-
(a) The custody of the minor
(b) …
As the court thinks fit having regard to the best interest of the minor and to the conduct and wishes of the parents.”
51.Mother was never married. Since the Child was born out of wedlock and is illegitimate, Sections 3(1)(c) and (d) of the GMO are applicable, and reads as follows:
“(1) In relation to the custody or upbringing of a minor, and in relation to the administration of any property belong to or held in trust for a minor or the application of the income of any such property –
…
(c) Where the minor is illegitimate-
(i) a mother shall have the same rights and authority as she would have by virtue of paragraph (b) if the minor were legitimate;
(ii) a father shall only have such rights and authority, if any, as may have been ordered by a court on an application brought by the father under paragraph (d);
(d) the Court of First instance or a judge of the District Court may, on application, where it is satisfied that the applicant is the father of an illegitimate child, order that the applicant shall have some or all of the rights and authority that the law should allow him as father if the minor were legitimate.”
52.I interpret “rights and authority” in the above section as referring to the custody, upbringing and administration of any property belonging to or held in trust for a minor, as in the opening paragraph of the section.
53.Hence, section 3(1)(c) prima facie vests in a mother sole custody of children born out of wedlock, unless and until the Court makes an order under section 3(1)(c)(ii) and 3(1)(d). The Court has not made any such order. Therefore, the Mother already has sole custody of the Child.
54.There is no evidence why, if the Mother and Child continue to live in the Mainland, that she would require a Hong Kong Court custody order for the Child. In any event, such an Order is not recognized, nor can it be enforced in the Mainland at this point of time. Her application is therefore otiose.
55.It is also clear that from the time of birth of the Child and over a period of the past 10 years, the Mother’s custody care and control of the Child has never been challenged. As T is not even admitting he is the father of the Child to-date, he clearly should not be taking issue with this custody application.
56.I therefore do not see the need to consider the jurisdiction challenge by T to this application.
57.In the event I am incorrect in assessing the mother’s need for this Hong Kong Court custody order, and for completeness sake, I would address the parties’ submissions in relation to this custody issue, T’s position is as follows:
“In relation to child custody, in Lai v Ling [2017] 5 HKLRD 629, the Court of Appeal after reviewing two recent English cases, A v A (Children: Habitual Residence) [2013] UKSC60; [2014] AC1, and In re B (A Child) [2016] AC 606, held at §51 that:
We are of the view that Hong Kong Court should adopt a similar approach in the exercise of the parens patriae jurisdiction in respect of children who have not been habitually resident here. For the reasons given by Lord Wilson in In re B (A Child) supra, at [27] to [30] we agree that habitual residence is the more appropriate guide than mere physical presence or absence for determining whether the court should exercise jurisdiction in cases involving children.
Following Lai v Ling, whether HK Court has jurisdiction over the Minor on custody matter would depend on whether the Minor is a habitual resident in Hong Kong as at the date of the application.”
58.The Mother’s counsel submitted that the Court’s jurisdiction in respect of GMO custody and maintenance applications are the same and that the case of QMY v GSS applies to both types of application. She also argued that the discussion on habitual residence in Lai v Ling related to the question of how the jurisdiction is to be exercised but not whether the Court has jurisdiction.
59.I am not of the view that Lai v Ling is a helpful authority for the present set of facts. That case involved a married couple, where the mother of the child (previously habitually resident in Hong Kong) had removed the child to the Mainland without consent of the father; the father contested custody, and for the return of the child to Hong Kong. Furthermore, the mother in that case did not challenge the jurisdiction of the Hong Kong court.
60.While I do not dispute that habitual residence is, as a general principle, the relevant test for a case regarding the custody application for a child; it is not the conclusive test. Au Yeung J said in the case of YJH v LKHM [2019] HKFLR 418, at paragraphs 46 - 48:
“46. The welfare of the child has to be considered in two different contexts. The first is the context of which court shall decide what the child’s best interests require. The second context, which only arises if it has first been decided that the welfare of the child requires that the Hong Kong rather than a foreign court shall decide what are the requirements of the child, is what orders as to custody, care and control and so on should be made: Re F (A Minor) (Abduction: Custody Rights) [1991] Fam 25, at 31D-E, Lord Donaldson.
47. In the absence of statutory provisions and as a matter of good common sense, the jurisdiction where the child habitually resides should try the case: LN v SCCM at §29, Cheung JA. ….
48. However, though habitual residence of the child is a factor of high importance, it is not a conclusive factor: H v H (Minors) (Forum Conveniens) [1993 1 FLR 958, at 974 D-G.”
61.In that judgement, Au Yeung, J quoted the case of LN v SCCM [2013] HKFLR 358, which is clearly an example where the case had been tried in one jurisdiction (Singapore) and the child was habitually resident in another (Hong Kong). That case involved a couple married in Singapore who had two children. After the relationship had broken down, the mother moved to Hong Kong with the children. She petitioned for divorce in Hong Kong, and the husband petitioned in Singapore. Eventually by agreement, the mother withdrew her petition, and the decree was granted in Singapore. Subsequently, there were contentious proceedings regarding children matters in terms of maintenance and increased access. The mother wanted to invoke the Hong Kong jurisdiction which was contested by the father. In the first instance, the Judge found against the father, but the Court of Appeal reversed the decision and found in favour of the father and ruled that Singapore and not Hong Kong was the appropriate forum. The specific factor in this case was that Singapore had already assumed jurisdiction of the matter. At paragraphs 29 and 31, per Cheung JA:
“29. In jurisdictional challenges which may involve children, their interest is a matter of high importance: Re V (Forum Conveniens) [2005] 1 FLR 718. I am prepared to proceed on the basis that, in general, the jurisdiction where the children habitually reside should try the matter. In the absence of express statutory provisions, this is a matter of good common sense rather than a recognized custom or convention. After all, if the children are here, issues concerning their well being can be conveniently dealt with in terms of the Court’s local knowledge and experience on the way they are to be raised and educated, inquiry by social workers and experts, testimony from witnesses and the Court’s wish to hear the views of the children directly. More importantly, this will ensure that there is no undue disruption of the children’s normal daily life when the matter is heard on home grounds. Without going into a discussion on the legal meaning of habitual residence, it does appear that that the children have habitually been residing in Hong Kong.
…
31. In this case, although the children were already living in HK before the 2007 Order was made, the regulation of the parties’ rights and obligations towards the children in terms of joint custody and access is clearly determined by that Order. The Singapore Court is vested with the authority to decide on issues concerning the children. Even if the mother is entitled to invoke the HK jurisdiction under the GMO as of right, our Court cannot simply ignore this Order. After all the parties had voluntarily submitted to the Singapore jurisdiction and the father is still residing there. His reliance on the Singapore jurisdiction is not opportunistic. He has joint custody and he must have a say on important issues such as overseas education of the children. This Court is told that the age of majority in Singapore is 21. This means the Singapore Court will continue to exercise jurisdiction over the children for the next eight to nine years. Once this is recognized, it is abundantly clear that all issue concerning the children should be decided by the Court of one jurisdiction rather than have the same (or different issues) being decided by Court in two different jurisdictions.
62.Mindful of these principles, I shall come back to this issue.
Jurisdiction regarding Mother’s maintenance claim for the Child
63.Section 10(2) of the GMO provides that:
“The court may as regards, a minor, on the application of a person with whom, whether by virtue of an order under subsection (1) or otherwise, custody of the minor lies at law, make in respect of the minor any one or more of the following orders …..”
64.There is no dispute that this Court has jurisdiction over the Mother’s application for maintenance for the Child. She is the custodial parent by virtue of section 3(1)(c) of the GMO.
65.Justice Tang PJ in QMY v GSS (2017) 20 HKCFAR 303 made the following observation in paragraph 3:
“This appeal is concerned with s 10 of the Guardianship of Minors Ordinance, Cap 13 (“GMO”). Section 10 of the GMO was modeled on s 9 of the Guardianship of Minors Act 1971 (“1971 Act”) as amended by the Guardianship Act 1973 (“1973 Act”). There is however an important difference. Under s 9 of the 1971 Act as amended, a maintenance order may only be made when the court makes an order regarding the custody of the minor …
… under s 10 of the GMO, an order for maintenance may be made whether or not a custody order was applied for or made.”
66.T’s position is stated in his leading counsel’s submission:
“T does not dispute that the Hong Kong Courts have jurisdiction to hear the Mother’s application for child maintenance. Jurisdiction in respect of the child’s maintenance is established as of right once the respondent was duly served and acknowledged service within jurisdiction.”
67.QMY v GSS was quoted as the authority by counsels. In that case the mother, who was a Mainland resident, gave birth to a daughter born in Hong Kong, whose father was a permanent resident in Hong Kong. The father at that time was married with a wife and his own children in Hong Kong. The parties separated, and mother and daughter returned to the Mainland. Mother applied under GMO Section 10(2) for maintenance.
68.Fok J at paragraphs 38 - 41 discussed the principles upon which this Court can find jurisdiction in dealing with an application for maintenance:
“38. In my judgment, section 10(2) should not be so construed. Although there is a presumption against the extra-territorial application of legislation, the invocation of the court’s jurisdiction in the present case was founded on the basis that the respondent, G’s father, was physically present within the jurisdiction when he was duly served with, and acknowledged service of, the originating summons in this action seeking an order for the payment of maintenance in respect of G.
39. Such service of the originating process in this action within the jurisdiction on the respondent was sufficient to found jurisdiction as of right. Whether the Hong Kong court would ultimately exercise jurisdiction to make the maintenance order would then depend on (i) whether the court were to accede to an application on the part of the respondent to stay proceedings on the ground of forum non conveniens, or (ii) assuming it did not stay the proceedings, whether the court were to decline to make an order for maintenance on the merits. The question of jurisdiction of the court, in the (narrow or strict) sense of whether it had power to hear and determine the intended application for an order for maintenance, would not arise in this case at stage (i) because, as already noted, the respondent was served within the court’s territorial jurisdiction. Nor would it arise at stage (ii) if the court did not stay the proceedings in favour of a more appropriate jurisdiction. At that latter stage, the court would consider whether to exercise its jurisdiction (in the wider sense) to make an order for maintenance in respect of the minor. This does not exclude the possibility of the summary dismissal of the application on grounds related to the merits (e.g. on the basis of DNA evidence proving the respondent is not the minor’s parent).
40. As a matter of construction of section 10(2), the fact that the minor in respect of whom a maintenance order is sought is not ordinarily resident or physically present within Hong Kong, either at the time of service of the originating process or even at the date of trial, would not preclude the Hong Kong court from making an order for maintenance.
41. There is nothing in the wording of section 10(2) that requires the minor in respect of whom the application is made to be ordinarily resident or physically present in Hong Kong. This construction is supported, as a matter of context, by section 26 of the GMO, which expressly provides that jurisdiction under the ordinance is exercisable notwithstanding that any party to the proceedings is not domiciled in Hong Kong. It is also supported, contextually, by the fact that, unlike other family law statutes, there is no express requirement of residence or presence in Hong Kong as a condition for the exercise of jurisdiction. Moreover, as a matter of purpose, the GMO requires the court, as a matter of general principle in relation to proceedings thereunder before it, to “regard the best interests of the minor as the first and paramount consideration”.
69.The parties herein are in agreement as to the jurisdiction of this Court in the Mother’s Section 10(2) maintenance application, it therefore comes to be considered whether the Hong Kong Court should stay these proceedings under the Forum Non Conveniens principles.
Principles regarding Forum Non Conveniens
70.I rely on the case referred by the Child’s and T’s leading counsel of YJH v LKHM [2019] HKFLR 418 where Au Yeung J summarized the principles of forum non conveniens, I quote here paragraphs 43 to 45, 49 and 53:
“43. The Court of Final Appeal summarized the principles governing applications to stay Hong Kong actions on forum non conveniens in SPH v SA (2014) 17 HKCFAR 364 at §51:
“1. The single question to be decided is whether there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of an action ie in which the action may be tried more suitably for the interests of all the parties and the ends of justice?
2. In order to answer this question, the applicant for the stay has to establish that, first, Hong Kong is not the natural or appropriate forum (‘appropriate’ in this context means the forum has the most real and substantial connection with the action) and second, there is another available forum which is clearly and distinctly more appropriate than Hong Kong. Failure by the applicant to establish these two matters at this stage is fatal.
3. If the applicant is able to establish both of these two matters, then the plaintiff in the Hong Kong proceedings has to show that he will be deprived of a legitimate personal or juridical advantage if the action is tried in a forum other than Hong Kong.
4. If the plaintiff is able to establish this, the court will have to balance the advantages of the alternative forum with the disadvantages that the plaintiff may suffer. Deprivation of the one or more personal advantages will not necessarily be fatal to the applicant for the stayif he is able to establish to the court’s satisfaction that substantial justice will be done in the available appropriate forum.” (emphasis added)
44. For proper assessment, it is not enough to load up factors which connect a case or the parties to any particular jurisdiction. The court is required to focus on the appropriateness of a forum from the point of view of the trial of the action: Rambas Marketing Co LLC v Chow Kam Fai David [2001] 3 HKC 250, at 255B-E, Recorder Ma SC as he then was.
45. These primary forum non conveniens principles have been applied to children proceedings but the court should always bear in mind in the application of these principles that the welfare of the minor is of paramount importance: QMY v GSS(2017) 20 HKCFAR 303, at §§28-30, 34, Tang PJ and LN v SCCM (Forum Non Conveniens)[2013] HKFLR 358, at §§15-17, Cheung JA.
….
49. The court has to consider a basket of other factors. In V & M (A Child) (Stranding: Forum Conveniens: Anti-Suit Injunction) [2019] 4 WLR 38, Williams J stated at §35(iii):
“In assessing the appropriateness of each forum, the court must discern the forum with which the case has the more real and substantial connection in terms of convenience, expense and availability of witnesses. In evaluating this limb the following will be relevant; (a) the desirability of deciding questions as to a child’s future upbringing in the state of his habitual residence and the child’s and parties’ connections with the competing forums in particular the jurisdictional foundation; (b) the relative ability of each forum to determine the issues including the availability of investigating and reporting systems. In practice judges will be reluctant to assume that facilities for a fair trial are not available in the court of another jurisdiction but this may have to give way to the evidence in any particular case; (c) the availability of witnesses and the convenience and expense to the parties of attending and participating in the hearing; (d) the availability of legal representation; (e) any earlier agreement as to where disputes should be litigated; (f) the stage any proceedings have reached in either jurisdiction and the likely date of the substantive hearing; (g) principles of international comity, in so far as they are relevant to the particular situation in the case in question. However public interest or public policy considerations not related to the private interests of the parties and the ends of justice in the particular case have no bearing on the decision which the court has to make; (h) it has also been held that it is relevant to consider the prospects of success of the applications.” (emphasis added)
….
53. Ultimately, whether to stay or refuse a stay depends on whether the defendant can establish that to refuse a stay would cause injustice. InMacShannon v Rochware Glass Ltd [1978] AC 795, Lord Salmon at 818-819 of his judgment stated as follows:
“In an action brought in England when its natural forum is Scotland, I consider the question as to whether it should be stayed depends upon whether the defendants can establish that to refuse a stay would produce injustice. Clearly if the trial of the action in England would afford the Scottish plaintiff no real advantage and would be substantially more expensive and inconvenient than if it were tried in Scotland, it would be unjust to refuse a stay. If, on the other hand, a trial in England would offer the plaintiff some real personal advantage, e.g., if he had come to live in England, a balance would have to be struck and the court might in its discretion consider that justice demanded that the trial should be allowed to proceed in England (see e.g. Devine v. Cementation Co. Ltd. [1963] N.I. 65). To my mind, the real test of stay or no stay depends upon what the court in its discretion considers that justice demands. I prefer this test to the test of whether the plaintiff has behaved ‘vexatiously’ or ‘oppressively’ on a so-called liberal interpretation of these words.” (emphasis added)
71.Taking into account these principles, I will proceed to apply to the facts of this case.
72.The parties had obtained a PRC Legal Opinion (“Legal Opinion”) with regard to various questions and issues arising from these proceedings.
The Arguments on the Forum
73.T argued that the Nanshan Court in Shenzhen has jurisdiction on all the applications made by the Mother and Child in these proceedings (except for amending information in the Child’s birth certificate); and that that court has the most real and substantial connection with this action for the reasons below:
i. The Child is habitually resident in Shenzhen and the Nanshan Court has local knowledge and experience to assess the amount of maintenance the Child requires, and there is less disruption of the children’s normal daily life if this case is heard on home grounds.
ii. With regard to the financial information, Mother runs a company in Shenzhen and has properties there, and T also previously ran his own business in the Mainland; and the previous legal proceedings regarding the shareholding of a company with its results and findings would be highly relevant.
iii. As Mother and Child have spent the majority of their time in Shenzhen, any witness who would be giving evidence at trial would likely to be a Mainland citizen.
iv. Legal costs are much lower in the Mainland.
v. Time for hearing application is much faster in the Mainland than in Hong Kong.
vi. Judgement in the Mainland could be enforced against the losing party’s various assets, an order could be made on the payment of interest and additional fees, imprisonment or fine, and limitation on entry and exit. T’s leading counsel claimed that it has a wider enforcement ambit as compared to that in Hong Kong where the Court has no power to pose any limitation on the losing party’s entry and exit. She claimed this to be a useful tool as T is a frequent traveller between the Mainland and Hong Kong.
74.The Mother’s case against these arguments was that T has failed to show that Hong Kong is not the natural or appropriate forum and that Nanshan Court is more appropriate because:
i. The Mother’s Application for maintenance has to depend on T being the father of the Child, and that the birth certificate of the child needs to be amended. But the Nanshan Court cannot make an order on parentage which will lead to amendment of the Child’s birth certificate by the Hong Kong Registrar and Deaths.
ii. Both R1 and T are Hong Kong residents and both have been served with these proceedings in Hong Kong. T has a family in Hong Kong. He used to run a business in the Mainland and split his time equally between Hong Kong and the Mainland prior to his retirement. As he is now retired, Mother’s counsel pointed out that given his local ties and absence of evidence suggesting otherwise, the inference can be drawn that he will continue to spend most of his time in Hong Kong. Furthermore, there is no evidence as to where T will spend his time post retirement.
iii. T, being the maintenance payor, should have adduced his evidence regarding his assets in Hong Kong and the Mainland. Counsel claimed that T has “conveniently left out any such evidence, such that [the Mother] is unable to compare the amount of assets he has in Hong Kong and that in PRC (if any). It is reasonable to draw the inference that, if [T] had more assets in PRC than in Hong Kong, he would have adduced such evidence in order to strengthen his case.”
iv. It is likely that the Court will be invited to draw an inference that the bulk of his assets are in Hong Kong and not the Mainland, and therefore appropriate that the maintenance application should be heard in Hong Kong.
The Arguments on Legitimate Personal / Juridical Advantage
A. Mother has claimed that T might not appear in the Nanshan Court
75.T’s leading counsel submitted that T is prepared to undertake to participate in the PRC proceedings. She added that according to the Legal Opinion, even if T is absent for any proceeding, the Court has the power to arrest him and rule in his absence.
B. Mother stated that legal aid is available to the Child in Hong Kong
76.T’s leading counsel stated that the legal aid is only available to the Child in Hong Kong for his application under the PCO. She stated that the “Mother did not seem to have any financial difficulties and in fact owns a flat and car park space in Shenzhen”, therefore there is hardly any prejudice suffered by Mother.
C. Mother claimed that there will be difficulty of enforcement of the judgment obtained in the Mainland against T in Hong Kong
77.T’s leading counsel further submitted that the Hong Kong Court cannot enforce a PRC judgement and vice versa. But the Court could enforce the judgement against T’s assets in the Mainland:
“As T had a business in the Mainland and will continue to explore business opportunities therein, any prejudice that would be suffered by Mother is limited.”
“Hong Kong Courts could only enforce T’s assets in HK and the evidence does not show T’s assets are in HK instead of Mainland. On the contrary, T’s business interest has always been centred in the Mainland.”
The Analysis
Whether Hong Kong is the natural or appropriate forum or whether Nanshan is clearly and distinctly more appropriate than Hong Kong
78.The burden of proof is on T to satisfy this limb. “Appropriate” in this context means the forum which has the most real and substantial connection with the trial of the action.
79.I am conscious that at this point of time, no financial information has been exchanged between the parties. Suffice to say that T should have assets in Hong Kong because he is based here, and probably also in the Mainland because he said that was where he conducted his businesses; but there is no evidence as to how much nor the proportion thereof. At this juncture, I am not able to accept T’s leading counsel’s submission that “T’s business interest has always been centred in the Mainland”.
80.The following analysis is made on the basis that the DNA test confirms that T is the father of the Child.
Appropriateness of forum from the perspective of the trial
81.Having regard to the basket of factors in V v M above quoted, I lay emphasis on the following factors.
82.The material witnesses in a maintenance application would primarily be the Mother and T.
83.Geographically, Shenzhen and Hong Kong are close. There is nothing preventing either party from travelling for the conduct of the trial. Even if there are more witnesses to be called, neither the Mother nor T can claim inconvenience in this regard. Considering the pandemic, if the proceeding is to take place in Hong Kong, the remote hearing mechanism now in place in Hong Kong will be of assistance, and offers a positive advantage.
84.Both the Mother and T have engaged legal representation who are familiar with the case. The Child is legally represented by legal aid in Hong Kong. The Mother submitted that there is no legal aid available to the Child in the Mainland, this was confirmed by the Legal Opinion, which states that any such assistance in the Mainland would not be available to the Child as he is not a PRC national, and the Mother is not in financial difficulties.
85.There is no evidence of any Mainland proceedings which have been initiated to deal with the issues in the Re-Amended OS, so I am not concerned with the considerations highlighted in LN v SCCM, supra.
86.In a maintenance claim, the Mother will need to adduce evidence of the expenses of the Child. T has submitted that the Mother’s financial position also needs to be taken into account, and that the jurisdiction with the local knowledge and experience should try the maintenance claim. Whether the proceedings take place in either jurisdiction, with proper legal representation (which T has), and the fact that T is no stranger to the Mainland (he claims to have business and social ties), it would not be difficult for T to effectively challenge the level of expenses the Mother is likely to put forward on behalf of the Child.
87.Without comparing whether Hong Kong or the Mainland has better discovery procedures (as T’s leading counsel rightly points out that Legal Opinion does not cover this area), it is not unfair to say that the discovery procedure in the Hong Kong courts hearing family cases is very well established. And if T is the father, then he is the intended payor; a Hong Kong discovery procedure which requires both parties to give full and frank disclosure of assets in Hong Kong and overseas should give a reasonable perspective of their respective resources.
88.On the basis of the above, in my view, the Nanshan Court in Shenzhen cannot be said to be clearly and distinctly more appropriate forum than Hong Kong Court.
On legitimate personal and juridical advantage
89.As said earlier, it does not appear that that the Mother has initiated proceedings in the Mainland, if the forum is to be there, the whole of these present proceedings would have to be launched ab initio. The past 3 years would have been a lengthy period of wasted costs. In the context of the welfare of the Child, the identity of his father is still a mystery to him, he is now age 10, and this lack of knowledge may well evoke a deeper sense of poignancy than it would have when he was much younger. Quoting Zhao Ying, supra:
“a child’s welfare generally demands that he or she knows the truth about his or her parentage”.
90.T’s leading counsel submitted that “there is at least evidence from T to show that the interest of other persons namely his family need to be protected” and “there is some evidence that the DNA test will be prejudicial to the interest to T and his family”, T’s affirmation has certainly not addressed this point in any detail except to say that the Mother has launched this action out of revenge, in order to affect him and his reputation. This argument was not elaborated further by his leading counsel, especially how this would tip the balance against the Child’s interest. Prima facie, I do not see the strength in his argument at all, if T was indeed the father, then he would have to accept the responsibilities arising from having fathered this Child in the face of the Mother’s claim.
91.As a starting point, the Legal Opinion states that the Mainland would have jurisdiction in this matter; and that the rights of an illegitimate child is not different from a child born in wedlock.
92.The amount that the Child could claim for maintenance and the duration of payment if these proceedings take place in the Mainland, are set out at paragraphs 2.12.2 and 2.12.4.
“最高人民法院<關於人民法院審理離婚案件處理子女撫養問題的若干具體意見>7。子女撫育費的數額，可根據子女的實際需要、父母雙方的負擔能力和當地的實際生活水準確定。有固定收入的，撫育費一般可按其月總收入的百分之二十至三十的比例給付。負擔兩個以上的子女撫育費的，比例可適當提高，但一般不得超過月總收入的百分之五十。無固定收入的，撫育費的數額可依據當年總收入或同行業平均收入，參照上述比例確定。有特殊情況的，可適當提高或降低上述比例。”
“撫育費的給付期限，一般至子女18周歲為止。16周歲以上不滿18周歲，以其勞動收入為主要生活來源，並能維持當地一般生活水準的，父母可停止給付撫育費。”
93.From the reading of the Legal Opinion, the maintenance that is granted in the Mainland court is based on the income of the payor, and if that income is not “regular” then it is based on the total annual income and inference can also be drawn from similar profession or work that a payor does. However, the Legal Opinion does not address how the Mainland court will assess the maintenance claim if T maintains that he is retired. It is therefore quite clear that a claim for maintenance made in Hong Kong looks to a much broader base than mere income of the payor. Furthermore, maintenance payment in Hong Kong may last beyond the age of 18 up to the time the Child completes his first tertiary education, while the Chinese law in this regard goes only up to age 18, or may even stop before that age.
94.T’s leading counsel also rightly observed that:
“There are no provisions to extend payment of child maintenance beyond 18 if they are still attending school or training or by reason of other special circumstances. T also notes that there does not seem to be any rules providing for a variation of child maintenance and interim child maintenance, or backdating of such maintenance in the PRC.”
Although to this position, she said:
“However as the Child is only 9 years of age, any effect of the absence of such provision is not clear …. We invite this Court to look at the financial condition of the Mother. Mother owns a business and a property with car parking space in Shenzhen and thus the effect of the absence of the said provisions does not have a significant effect on Mother.
95.An issue was raised as to how the Mainland Court will enforce orders made against the Mother or T. Evidently, a PRC Order can be enforced against T’s assets in the PRC, but not his assets in Hong Kong. At paragraph 2.15 of the Legal Opinion:
“內地法院可依據<中華人民共和國民事訴訟法>第三篇執行程式的規定：向身為香港居民及身在香港的該男子執行他在內地的財產和行為，但無權到香港執行該男子在香港的財產和行為。因為目前<關於內地與香港特別行政區法院相互認可和執行婚姻家庭民事案件判決的安排>雖然已簽署，但至今尚未公佈生效日期。內地法院可以依照<中華人民共和國民事訴訟法>第三篇執行程式的規定執行該母親在內地的財產和行為。拒不執行判決的，可能構成刑事責任。若該男子不出席內地法院審理，內地法院可以缺席判決。”
96.For completeness sake, I will also add here that what the Legal Opinion states with regard to the DNA test to be conducted in the PRC. At paragraph 2.2.1:
“根據內地法學理論和司法實踐，如果一方拒絕做親子鑒定：按照民法精神和相關法律規定：法院並不能採取強制的方式命令該男子到鑒定機構進行親子鑒定。因為內地實施的民事訴訟的基本證據規則是 “誰主張，誰舉證”，如果法院可以直接命令被告進行親子鑒定的話，不僅會導致濫訴的情景發生，還會侵害到被告人的人生權利。當然，在一方當事人能夠提供”必要證據”證明其親子關係的前提下，法院會根據一方當事人的書面申請，向被告進行’釋明”，即告訴被告如果不進行親子鑒定：法院有可能做出其對對其不利的判決。在法院”釋明”後，被告還拒絕進行親子鑒定的話，法院會運用推定原則確認親子關係。”
97.T’s leading counsel stated in her submission that T is prepared to undertake to participate in the Mainland proceedings should the Hong Kong Courts stay the present proceedings in favour of the Mainland courts. This is of limited assistance. In the balancing exercise, this Court still needs to consider what is the downside of T not appearing in the Mainland proceedings.
98.T’s leading counsel further stated that in addition to the undertaking that she said T will give, T will continue to explore business opportunities in the Mainland, he has a social circle there, and that he will continue to travel into the Mainland. If he does not pay maintenance as ordered by a Mainland court, then inter alia, his entry into and exit from the Mainland will be inhibited. Therefore, the Mother does not suffer any disadvantage in terms of enforcement.
99.However, it is equally possible that T could choose not to return to the Mainland; after all, he is based in Hong Kong. In his first affirmation, he said he is retired, in his second affirmation, he said that he would continue to explore business opportunities in the Mainland, and therefore will continue to go in and out. If he doesn’t do so, and he could not be compelled to do the DNA test, a subpoena for his attendance in the Mainland Court would be ineffective. While the Mainland Court can conclude by inference or other evidence put forward by the Mother that T is the father, if he doesn’t appear in the Mainland proceedings, there will not be any opportunity for the Mother to seek discovery against T’s assets in the Mainland. Even if a maintenance order is made against him in his absence, if the Mother does not have information as to what assets against which she could enforce her claim, it would be an empty judgement.
100.It is not the purpose of this hearing to assess the merits of the Child’s claim for maintenance; but justice dictates that he should have a chance to put forward his claim and have the best opportunity to obtain financial contributions from his birth father. The Hong Kong Court affords him a wider basis of assessment, possibility for variation in view of needs, a longer duration for his claim, and better opportunity in enforcement should the need arises.
Conclusion on Forum Non Conveniens
101.The authorities require that I first determine whether T has discharged his burden to prove that the Nanshan Court is a clearly and distinctly more appropriate forum than Hong Kong, in my view, T has not done so.
102.Even if T has discharged this burden, I am of the view that in considering the welfare of the Child, the Mother would have suffered a distinct disadvantage in her maintenance application if the proceeding is to take place in the Mainland, and this would adversely affect the financial support the Child is entitled to if T is found to be his father.
103.I therefore conclude that Hong Kong is the appropriate forum for the Mother’s maintenance claim.
The DNA Summons
104.As I have ruled that Hong Kong is the forum for the trial of the maintenance issue, it follows that per section 13 of the PCO, there is a civil proceeding in which the parentage of the Child falls to be determined, as it must first be determined if T is the father before the maintenance application can proceed.
105.Furthermore, T’s leading counsel has conceded in her submission that “if the Court decided in favour of the Mother on jurisdiction / forum, T does not dispute that ordering a DNA test serves the Child’s best interest” (above quoted).
106.I will therefore make directions per the DNA Summons.
The custody application
107.Although the Mother’s application for custody is not a prerequisite, should she still intend to apply for a Hong Kong Court custody order, then on the basis of the guidance in the case of LN v SCCM supra, all issues concerning the Child should be decided by the Court of one jurisdiction rather than have different issues being decided by Court in two different jurisdictions. It therefore follows that the Hong Kong Court should have jurisdiction to consider the issue of custody despite the fact that the Child’s habitual residence is in the PRC.
Costs
108.I do not see any reason why costs should not follow the event as between the parties. But I shall order that T should only bear 50% of the Child’s costs as the latter has failed on his parental declaration application for lack of substantial connection.
109.The SJ has by their letter of 16 November 2020 asks for costs incurred and arising since 10 September 2018, which was the date of T’s Notice to Act being filed into Court. I shall make an Order that the costs of the SJ incurred from 10 September 2018 be also borne by T.
Order
110.I therefore make the following orders:
(i) Save with regard to Paragraphs 1 and 3 of the Re-Amended Originating Summons filed on 7 November 2017, the 2nd Respondent’s Summons dated 2 November 2018 is dismissed.
(ii) The 2nd Respondent is directed to attend DNA Test in accordance with the 2nd Applicant’s Summons dated 10 September 2018.
(iii) Paragraphs 1 and 3 of the Re-Amended Originating Summons filed on 7 November 2017 be dismissed.
(iv) Paragraphs of 2, 4, 5 and 6 of the Re-Amended Originating Summons filed on 7 November 2017 be adjourned sine die pending the outcome of the DNA test; with liberty to restore.
(v) I make an order nisi that the costs of the 1st Applicant, 50% of the costs of the 2nd Applicant, and the costs of the Secretary for Justice incurred and arising from 10 September 2018, are to be borne by the 2nd Respondent, with certificate for counsel. This order nisi shall be absolute 14 days from the date of this Order unless application is made to vary the same.
(vi) I also make an order nisi that the costs of the Secretary for Justice incurred and arising from 10 September 2018, are to be borne by the 2nd Respondent, with certificate for counsel. This order nisi shall be absolute 14 days from the date of this Order unless application is made to vary the same.
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(Thelma Kwan)
Deputy District Judge |
Miss Alison Choy, Counsel instructed by Messrs Hui & Lam LLP for 1st Applicant
Mr. Eric Leung, Counsel instructed by Messrs Hui & Lam LLP for 2nd Applicant assigned by Director of Legal Aid
1st Respondent being absent
Miss Anita Yip, SC leading Miss Karen Wong, Counsel instructed by Messrs O Tse & Co. for 2nd Respondent.
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