Pel, By His Mother and Next Friend P and Another v. Sl

FCMP 121/2021

[2022] HKFC 275

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NO. 121 OF 2021

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BETWEEN

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JUDGMENT
( Ex Tempore Decision )

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1.This is an application by the 1^st Applicant, a child of 6 years, by his mother as next friend, 2^nd Applicant, for:

- Directions for Respondent to take DNA test

- Declaration that Respondent is the natural father and in law the parent of the 1^st Applicant

- Birth certificate of the 1^st Applicant be amended

- Maintenance for 1^st Applicant

2.The Originating Summons for this matter started in June 2021, it was amended on 18 August 2021.

3.It is clear to me that the Respondent is fully aware of the 1st Applicant’s claim and progress of these proceedings. He responded twice just before and during the course of this application. Once on 16 May 2020 when he replied via email to a letter from PathFinders which at that time was assisting the 2^nd Applicant in this application; and then on 23 September 2022 to the 2^nd Applicant’s lawyers.

4.HHJ Melloy made an Order for R to take a DNA test by her Order of 9 December 2021, giving him a deadline of 60 days, this was not complied with.

5.This Court has also given the R leave to attend the hearing by VCF, this was never taken up.

6.I made an Unless Order on 17 August 2022, that if he does not oppose this application via affidavit within 42 days therefrom, I shall make an Order in terms of the Applicants’ Summons in respect of declaration of parentage and change of birth certificate. No affidavit was filed within time and the Unless Order should have taken immediate effect on 28 September 2022.

7.I will put on record that Respondent did contact the Applicants’ lawyer on 23 September 2022 citing his objection and demanding for DNA test to be done. He was rightly told to file an affirmation in opposition per my Order, and was also told to seek an extension of time if necessary; he did not do so.

8.There has been at least 6 Affidavits of service throughout these proceedings. The Applicants’ lawyers have sought legal opinion as to proper service in the UK, service has been made by DHL, email and subsequently UPS, and every time with tracked record of delivery. By the fact that the R has responded as close as 23 September 2022, I am satisfied that he has full awareness of these proceedings, but has chosen not to otherwise attend or participate.

9.On 17 August 2022, I have also made the Order for DOJ to consider if intervention will be considered and for obtaining R’s travel record. The DOJ has written back to confirm that they will not be intervening, nor are they able to obtain travel record without the Respondent’s consent. I accept this position.

10.However, I am in receipt of the SIR I ordered which is dated 28 November 2022, this confirms the background of this matter as put forward by the 2^nd Applicant.

11.The Respondent has not complied with the Order for DNA in December 2021, and failed to comply with my Unless Order, despite my finding that he is in receipt of and therefore fully aware of all the relevant documentation.

12.Section 15 of the Parent Child Ordinance gives me the power to draw such inferences as appear proper in the circumstance on the Respondent’s refusal to conduct the DNA test. As mentioned above, he did not comply with HHJ Melloy’s Order, he did not respond to the 2^nd Applicant’s letter of 20 December 2021, and he took no action when the lawyers responded to his email of 23 September 2022 on 27 September 2022. He never put in any evidence as to his position, and no reason has been proffered by him as to his refusal to take action on the DNA test.

13.Relying on the authorities of Re A (A Minor) (Paternity: Refusal of Blood Test [1994] 2 FLR 463, and Kwok v Suen (unreported, 31 October 2016 FCMP 97/2014), I shall draw the inference from the evidence before me that he is the father of the 1^st Applicant.

14.I therefore made an Order in terms of paragraph 2 and 3 of the 1^st and the 2^nd Applicant’s amended Summons dated 18 August 2021.

15.Cost is reserved with legal aid taxation for the Applicants.

For 1^st Applicant: Ms. Evelyn Tsao of Patricia Ho & Associates

For 2^nd Applicant: Ms. Evelyn Tsao of Patricia Ho & Associates

Respondent: Acting in person and did not appear