Re Section 12 of the Parent and Child Ordinance (Cap 429)
Read the full judgment text of FCMP 60/2014 on BabelCite. This FCMP judgment was delivered on 7 October 2014 before Deputy District Judge I. Wong.
Family Court – Transfer of proceedings – Surrogacy – Parental order – Commercial surrogacy agreement – Pre-Birth Order – Novelty of legal issues – Best interests of child – Education – Delay – Parent and Child Ordinance (Cap 429) s.12 – Adoption Ordinance (Cap 290) s.17 – Human Reproductive Technology Ordinance (Cap 561) s.17 – Whether applicants are parties to a marriage – Whether Pre-Birth Order is adoption order – Whether payments authorized – Transfer to Court of First Instance ordered – Director of Immigration invited not to remove child – Costs reserved
Legal issues: Transfer of proceedings
Outcome: Application transferred to the Court of First Instance of the High Court.
Cited by 2 cases · Cites 2 cases
|
FCMP 60 / 2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION FAMILY COURT MISCELLANEOUS PROCEEDINGS NO. 60 of 2014 ----------------------------
-----------------------------
-------------------------- RULING -------------------------- Introduction 1.Before this court is an ex parte application on the part of a married couple for a parental order pursuant to section 12 of the Parent and Child Ordinance, Cap 429 (“the Ordinance”). Background 2.The two applicants are married couple. Both are local Chinese. The husband is now XX years old and the wife aged XX. They started co-habitation in 2006 and got married in Hong Kong on XXX, 2014. Unfortunately, for some medical reasons, they were not able to have their child naturally. After having various treatments but in vain, they arranged a surrogate in California of the United States to give birth to a child D for them by using the husband’s sperm and the wife’s egg. For this purpose, a commercial Surrogacy Agreement was entered on 18 August, 2012 between them and the surrogate couple (“the Surrogacy Agreement”). The relevant medical procedure was performed in California and as a consequence, D was born on XXXXXXX, 2013. Before her birth, the necessary legal procedure was put in place by having a Pre-Birth Order (“the Pre-Birth Order”) obtained from the Superior Court of the State of California. Under the Pre-Birth Order, the applicants were declared to be the legal parents of D. After her birth, D was issued a birth certificate with the applicants registered as her father and mother. The applicants have since brought D back to Hong Kong for good. In order to apply for residency for D, they have to regularize their legal relationship with the daughter, hence the present application. 3.By their Ex parte Originating Summons, which was amended on the callover hearing of 30 September, 2014, they ask for:-
4.This case has the following unusual features. 5.First, as Mr Chan, senior counsel for the applicants, has pointed out, this case is the first of its kind in Hong Kong. 6.Secondly, at the time of birth of D on XXXX, 2013, the applicants were not married yet. They only married subsequently on XXXXX, 2014. Thus, it is questionable whether they are “parties to a marriage” so as to qualify them to make an application under the said section 12. 7.Thirdly, the Surrogacy Agreement in question is a commercial agreement. Hence, prima facie, it is in contravention of section 17 of the Human Reproductive Technology Ordinance, Cap 561 which prohibits against surrogacy arrangement on commercial basis. There is an issue as to whether the applicants have committed the relevant offences: see section 39(1) of the Human Reproductive Technology Ordinance, Cap 561. Mr Chan informed the court that similar cases had come before the English High Court. Such cases should be of much assistance to the courts of Hong Kong in dealing with similar issues. 8.An Assessment Report has been obtained from the Director of Social Welfare since the 1st callover hearing pursuant to Order 90, rule 6 of the Rules of the District Court, Cap 336H. In the interim, I considered that it might be necessary to have the application transferred to the Court of the First Instance and I invited the applicants to lodge their submissions in this respect. 9.Despite the neutral stance taken by the applicants on the issue of transfer, in accordance with the best tradition of the Bar, Mr Chan has helpfully rendered his assistance to the court by referring to the relevant legal principles and the arguments on both sides in relation to transfer. I am grateful for his assistance. The Legal Principles 10.The starting point is that the Family Court has both the power to hear the application and the power to transfer the matter to the High Court. 11.Section 12(1) of the Ordinance stipulates that the court may make an order providing for a child to be regarded in law as the child of the parties to a marriage, and "the court" is defined in section 2 to mean "the High Court or the District Court". 12.At the same time, section 16 of the Ordinance expressly provides that where an application under section 12 is made to the District Court, the District Court may, if it considers that the case is one which for any reason ought to be dealt with by the High Court, transfer the matter to the High Court. 13.Although the Matrimonial Causes Rules, Cap 179A ("MCR") govern only proceedings issued under the Matrimonial Causes Ordinance, Cap 179 ("MCO"), I agree with Mr Chan that the relevant provision, being Rule 32(1) of the MCR, provides helpful guidance which the court might find applicable to the present proceedings. The said Rule 32(1) provides that the District Court "may order that a cause or application pending in the District Court be transferred to the Court of First Instance, where having regard to all the circumstances including the difficulty or importance of the cause or application or of any issue arising therein, the court thinks it desirable that the cause or application should be heard and determined in the Court of First Instance” (emphasis added) 14.PD 15.14 relates to the transfers of proceedings from the Family Court to the Court of First Instance. It refers to, inter alia, Rule 32(1) of the MCR set out above and incorporates the principle enshrined in the rule. 15.Two of the Hong Kong cases cited in PD I5.14, namely B v B (FCMC 3105/1999, unreported, 11 July 2000) and H v H (FCMC 7173/2000, unreported, 1 February 2002), although related to financial relief in divorce proceedings, have set out useful guiding principles. 16.In B v B, the court applied the following principles set out in Jack v Jack and Anor (DJ No 3782 of 1995) as reasons justifying transfer:-
17.In H v H, the court commented at para 47 that the effect of having a separate Family Court was "to build [up] a pool of judges who are very experienced in this particular field". It also made the following comments in relation to financial relief hearings at paras 48 and 49:-
The Issues Involved 18.Mr Chan submitted that 3 legal issues are involved in this case. 19.The first is that given the parties were unmarried at the time of birth of D, there is an issue of whether or not the applicants are “parties to a marriage” so as to qualify them to make an application under the said section 12. Mr Chan submitted that this is merely a matter of statutory interpretation and should not be a complex issue that warrants a transfer. 20.I agree. 21.The second issue is the whether the Pre-Birth Order granted by the Superior Court of the State of California is an adoption order for the purpose of section 17 of the Adoption Ordinance, Cap 290. The relevant part of the said section 17 read as follows:-
22.Provided that the requirements under section 17 are satisfied, an adoption outside Hong Kong is recognized. Mr Chan submitted that the Pre-Birth Order extinguishes all the rights of the surrogate parents. He argued that the Pre-Birth Order should be regarded as an adoption order for the purpose of the provision. He accepted that the Pre-Birth Order is not an adoption order as such but this is the only order available in the State of California according to the law there. The provision, when drafted, did not envisage human reproduction. At the end of the day, it is a matter of statutory interpretation and it is not a complex issue that merits transfer. 23.Again, I agree. 24.The third issue concerns the sanction by the court of the payments paid pursuant to the Surrogacy Agreement. Mr Chan submitted this involves the resolution of two conflicting legal provisions: section 17 of the Human Reproductive Technology Ordinance, Cap 561 and section 12(7) of the Ordinance. While the said section 17 prohibits against surrogacy arrangement on commercial basis, section 12(7) allows expenses reasonably incurred or otherwise “authorized or subsequently approved by the court”. 25.The English position in this regard is canvassed in In Re X and Anor (Children) (Parental Order: Foreign Surrogacy) [2009] 2 WLR 1274, where the English High Court made the following remark at para 28:-
26.Section 30(7) of the Human Fertilization and Embryology Act 1990 mentioned above, or currently s 54(8) of the Human Fertilization and Embryology Act 2008, is the equivalent of s 12(7) of the Ordinance. Thus, in England and Wales, where a case involves overseas surrogacy agreements, or where there is a commercial element to the surrogacy, or where the court has to declare the reasonableness of any expense or payment involved in the surrogacy, or where there is a significant conflict of private international law, the case would unlikely stay at the family proceedings court in England, but would more likely be transferred to a higher court. It should however be noted that the above judgment is not binding on Hong Kong courts. 27.Mr Chan also referred me to the English case of J v G [2013] EWHC 1432 (Fam) where save that the couple in question was a same sex couple, the facts of that case fall on four squares with the present one. He argued that with the guidance of the English authorities, the legal issues may not be as complex as it seemed. 28.That said, Mr Chan accepted that the novelty of issues and special complexity in the case, which are arguably exhibited in the present proceedings, are reasons for transfer. As mentioned, this case is the first of its kind before the Hong Kong courts. Considering that there is a lack of an authoritative judgment in Hong Kong in relation to surrogacy arrangements and that there may be more similar cases to come in the future, the Family Court may find this case appropriate to be transferred to the High Court. 29.Secondly, one of the issues in this case is whether the payments made by the applicants pursuant to and in connection with the said Surrogacy Agreement are "expenses reasonably incurred" or otherwise expenses "authorized or subsequently approved by the court" as referred to in section 12(7) of the Ordinance. In this regard, there is a conflict between Hong Kong law and the law of California, where the surrogacy was carried out. While the English courts have resolved similar issues, this will be the first time the Hong Kong court is asked to address this issue. 30.Mr Chan submitted that against these considerations would be the delay arising from the transfer and the expertise of the Family Court. He submitted that it is expected that the merits of the application would soon be addressed, the hearing of which would unlikely take long and hence the District Court listing is unlikely to be affected. On the other hand, if the matter is transferred to the High Court which will seize of the matter afresh, it would inevitably cause some delay in the resolution of this application. In this regard, the listing of the High Court normally takes longer than that at the Family Court. The delay is of particular significance when a minor is involved. D will soon reach the age of schooling and it would be most undesirable and would not be in her best interest that her status remains unresolved. He highlighted that her application before the Immigration Department for permission to stay in Hong Kong as a dependant or otherwise pending resolution of her application has remained undecided, and D has to leave Hong Kong every three months when her visitor visa expires. Her visitor visa status is also having an adverse impact on her education. She is unable to enroll in any preschool nursery with a visitor visa, and the deadline for enrolment for what the Applicants would consider as good pre-school nursery is generally around the end of September 2014 with some going to October 2014. This unfortunate and undesirable state of affairs will be prolonged if there is further delay in resolving this application. 31.Unlike the English situation where there is no specialized Family Court at the local level and hence transfer to the higher court is desirable when overseas surrogacy is involved, there is a specialized Family Court in Hong Kong with abundance of expertise in family matters. In contrast, there is no specialized Family Division in the High Court. As the Court in H v H, supra,observed, there must be cogent reasons before a matter is taken out of the hands of a pool of specialist judges. 32.Mr Chan submitted that in considering whether to transfer the application to the High Court, the court would have to balance the above factors, notably the novelty of the issues versus the adverse consequences on the development of D, the disruption to her normal life, and her difficulty in pursuing education in Hong Kong as a result of delay. At this stage, the education of D is the primary concern of the applicants. Therefore, while the applicants consider both the Family Court and the High Court are appropriate venues to hear the application and would be pleased to leave the matter in the court's hand, in view of the imminent education problem of daughter, the applicants would prefer to have the application remained at the Family Court. Discussions 33.I agree with Mr Chan that this is a balancing exercise. I do bear in mind the education need of D but given that she is now merely one year old, I believe the adverse impact on her arising from some delay occasioned by the transfer should be minimal. The Assessment Report from the Director of Social Welfare has been obtained, the merits of the application should be ready to be heard. Mr Chan estimated that at most only one day is required. The English authorities would certainly provide useful guidance and even persuasive authorities, but the socio-economic situation in Hong Kong is quite different from that in England & Wales. The Hong Kong courts may have different public policy considerations when it comes to a sensitive issue such as this. Since the present application is the first of its kind in Hong Kong, and given the novelty of the issues involved, in my view, the balance is tipped in favour of transfer. 34.I agree that D’s predicament needs to be addressed. 35.Mr Chan agreed that the court does not have the power to make an order that D not be removed out of the jurisdiction as it is entirely within the ambit of the Director of Immigration. What the court can do is to invite the Director of Immigration not to remove D out of the jurisdiction until the final resolution of this application. I consider it is appropriate to do so. I also hope that the application may be listed to be heard as soon as possible. Mr Chan also asked for an order that subject to the consent of the Director of Social Welfare, the Assessment Report may be disclosed to the Director of Immigration. I accept that the report may be of assistance to the Director of Immigration in his consideration of D’s residency. Orders 36.For the above reasons, I give an order that:-
37.Lastly, I thank Mr Chan for his assistance.
Representation Mr Johannes Chan, SC (Hons) and Ms Alison Choy, instructed by Cheung, Tong & Rosa, Solicitors for the Applicants |
Cases cited in this judgment
Other judgments that cite this case