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Competing Family Law Norms: Challenging Hong Kong Law’s Conceptualization of the Ideal Family

  • Anne SCULLY-HILL (a1)

Abstract

Two recent Hong Kong cases have highlighted the developing dissonance between family law norms in Hong Kong and other jurisdictions. The first entailed a challenge to the Hong Kong Director of Immigration’s refusal to recognize an overseas same-sex civil partnership as analogous to marriage. The second concerned a parental order for a child born overseas as a result of a surrogacy arrangement to an unmarried commissioning couple. These two cases challenged a specific conceptualization of the family in Hong Kong law: a preference for a heterosexual, married couple as the basis for the family unit. However, other common law jurisdictions would recognize the applicants’ claims to family status, as do international human rights principles. This article explores the scope and intersection of Hong Kong’s family law values, its private international law obligations, and the potential for invoking the public policy exception in these cases. In doing so, it tests the extent to which Hong Kong law’s conceptualization of the “Ideal Family” can be legitimately imposed to oust the claims of the “Other Family” to legal recognition.

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Copyright

Footnotes

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LL.B. (Hons) (Lond.), LL.M. (Lond.); Associate Professor, Faculty of Law, The Chinese University of Hong Kong. The author wishes to thank the anonymous reviewers for their helpful and constructive comments. Any errors of course remain the author’s own.

Footnotes

References

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1. QT v Director of Immigration [2016] HKEC 587.

2. Marriage (Same Sex Couples) Act 2013 (UK), c 30, s 9.

3. QT v Director of Immigration, supra note 1 at [96].

4. Re D [2015] 1 HKLRD 229

5. See Parent and Child Ordinance (Cap 429) s 12.

6. In relation to surrogacy see the Hong Kong Legislative Council’s debate as to the parameters of legal recognition of surrogacy arrangements, see Legislative Council Secretariat, Report of the Bills Committee on Human Reproductive Technology Bill, CB(2) 2296/99-00 (14 June 2000), online: Legco.gov.hk <http://www.legco.gov.hk/yr98-99/english/bc/bc53/report/b2296e.pdf> and Hong Kong Legislative Council, Official Record of Proceedings (22 June 2000), online: Legco.gov.hk <http://www.legco.gov.hk/yr99-00/english/counmtg/hansard/000622fe.pdf>; in relation to the Hong Kong Executive’s negative response to a question raised in the Legislative Council as to the recognition of overseas same-sex marriages as valid marriages in Hong Kong, see Hong Kong Legislative Council, Press Release, “LCQ7: Provision of same-sex marriage registration services by foreign consulates” (10 December 2014), online: Info.gov.hk <http://www.info.gov.hk/gia/general/201412/10/P201412090918.htm>.

7. Hong Kong Legislative Council, Official Record of Proceedings (9 September 1998), online: Legco.gov.hk <http://www.legco.gov.hk/yr98-99/english/counmtg/hansard/980909fe.htm>.

8. Hong Kong Legislative Council, Official Record of Proceedings (7 November 2012), online: Legco.gov.hk <http://www.legco.gov.hk/yr12-13/english/counmtg/hansard/cm1107-translate-e.pdf>.

9. Hyde v Hyde (1866), LR 1 P&D 130.

10. Marriage Reform Ordinance (Cap 178); see also L v T [2003] HKEC 271 at [39].

11. Matrimonial Causes Ordinance (Cap 179).

12. Corbett v Corbett (otherwise Ashley) [1971] P 83.

13. W v Registrar of Marriages [2013] 3 HKLRD 90.

14. Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (adopted at the Third Session of the Seventh National People’s Congress on 4 April 1990).

15. Ibid, art 37. See also the Hong Kong Bill of Rights Ordinance (Cap 383), art 19.

16. Marriage Ordinance (Cap 181).

17. W v Registrar of Marriages, supra note 13 at [19].

18. Ibid at [3].

19. Ibid at [2].

20. Ibid at [108]-[112].

21. See e.g. FRASER, Niall, “Case that could drag HK out of dark ages on sex change”, South China Morning Post (8 August 2010), online: South China Morning Post <http://www.scmp.com/article/721654/case-could-drag-hk-out-dark-ages-sex-change> and FRASER, Niall, “I want to marry my boyfriend, says woman who was a man”, South China Morning Post (8 August 2010), online: South China Morning Post <http://www.scmp.com/article/721572/i-want-marry-my-boyfriend-says-woman-who-was-man>.

22. Legislative Council Panel on Security, Follow up on the Court of Final Appeal order in the Judicial Review case W v Registrar of Marriages (FACV 4/2012), CB(2) 588/13-14(08) (7 January 2014), online: Legco.gov.hk <http://www.legco.gov.hk/yr13-14/english/panels/se/papers/se0107cb2-588-8-e.pdf>.

23. The Ampthill Peerage Case [1977] AC 547: she who gives birth is the mother.

24. Leung Lai Fong v Ho Sin Ying [2009] 12 HKCFAR 581.

25. A presumption arising from marriage: Banbury Peerage Case (1811) 1 Sim & St 153: the “pater est” rule; alternatively where an unmarried couple had agreed to enter both names on the birth certificate, this would lead to a presumption of paternity.

26. Parent and Child Ordinance, supra note 5, s 5: (1) A man shall be presumed to be the father of a child-

(a) if he was married to the mother of the child at any time and if there arises by virtue of that marriage a presumption of law that the child is the legitimate child of that man; or

(b) where no man is presumed to be the father under paragraph (a), and subject to section 10(3), if he has been registered as the father of the child by an entry made after the commencement of this section in any register of births kept by the Registrar of Births and Deaths under any Ordinance.

27. Births and Deaths Registration Ordinance (Cap 174) s 12.

28. Parent and Child Ordinance, supra note 5.

29. Human Reproductive Technology Ordinance (Cap 561).

30. Ibid, Long Title:

An Ordinance to regulate reproductive technology procedures, and the use, for research and other purposes, of embryos and gametes; to confine the provision of reproductive technology procedures to infertile couples subject to any express provision to the contrary in any code; to regulate surrogacy arrangements; to establish a Council on Human Reproductive Technology; and to provide for matters incidental thereto or connected therewith; see also s.15(5):“ Subject to subsections (6), (7) and (8), no person shall provide a reproductive technology procedure to persons who are not the parties to a marriage.

(6) Without prejudice to the operation of section 14, subsection (5) shall not apply in the case of a reproductive technology procedure provided to a person who is to be a surrogate mother where the procedure is provided pursuant to the surrogacy arrangement under which she is to be the surrogate mother.”

31. Ibid, s14.

32. Ibid, s18.

33. Ibid, s17.

34. Re D, supra note 4.

35. LAU, Stuart, “Lesbian challenges Hong Kong’s decision to refuse her a dependant visa”, South China Morning Post (13 May 2015), online: South China Morning Post <http://www.scmp.com/news/hong-kong/law-crime/article/1794647/lesbian-challenges-hong-kongs-decision-refuse-her-dependant>.

36. YAN, Cathy, “Maternal Mystery: Babies Bring Joy, and Questions, in Hong Kong”, The Wall Street Journal (14 December 2010), online: The Wall Street Journal <http://www.wsj.com/articles/SB10001424052748703471904576002913040745224>.

37. “Peter Lee surrogacy case referred to police”, South China Morning Post (2 December 2010), online: South China Morning Post <http://www.scmp.com/article/732171/peter-lee-surrogacy-case-referred-police>.

38. Ibid: “Democratic Party lawmaker James To Kun-sun, who is also a lawyer, said a police investigation was unlikely because evidence of irregularity would be too thin. “Just because someone is rich and can afford to hire a surrogate mother, it does not mean he would actually do it,” he said. Nor would any participants be likely to admit to taking part, he added”.

39. Suen Toi Lee v Yau Yee Ping [2001] HKCFA 21; (2001) 4 HKCFAR 474: essential validity of the marriage depends on the capacity under the ante-nuptial domicile of the party. Per Millett NPJ, obiter: “The law of Hong Kong recognizes unions of concubinage validly entered into abroad just as it recognizes marriages validly entered into abroad.”

40. Brook v Brook (1861), 9 HLC 193, 11 ER 703; Sottomayor v de Barros (1877), 3 PD 1 (UKCA) (Cf Sottomayor v de Barros (No.2) (1879), 5 PD 94 (UKCA)).

41. JOHNSTON, Graeme, The Conflict of Laws in Hong Kong, 2d ed (Hong Kong: Sweet & Maxwell, 2012) at [7.088].

42. Matrimonial Causes Ordinance, supra note 11, s 9: jurisdiction to grant various orders including a divorce decree is limited, inter alia, to monogamous marriages, and these are defined in s 2 of the Ordinance, if it took place outside Hong Kong, as celebrated or contracted in accordance with the law in force at the time and in the place where the marriage was performed and recognized by such law as involving the voluntary union for life of one man and one woman to the exclusion of all others (emphasis added).

43. QT v Director of Immigration, supra note 1 at [85]-[89].

44. Ibid at [86]-[89].

45. Ibid at [86].

46. Johnston, supra note 41 at [7.083].

47. Ibid.

48. RWEZAURA, Bart, “To Be or Not To Be: Recognition of Same-sex Partnerships in Hong Kong” (2004) 34(3) Hong Kong Law Journal 557 at 561 ; see also WARREN, Robin A, “Gay Marriage: Analyzing Legal Strategies for Reform in Hong Kong and the United States” (2004) 13(3) Pacific Rim Law & Policy Journal 771 at 801-802 .

49. See “More liberal access to surrogacy warranted”, South China Morning Post (31 January 2011), online: South China Morning Post <http://www.scmp.com/article/737246/more-liberal-access-surrogacy-warranted>: “However, controversy and cultural attitudes have not deterred an increasing number of Asians generally from turning to overseas agencies for help to conceive a child with a surrogate. Surrogacy Centre Hong Kong estimates that inquiries from Hong Kong have tripled in the past five years and that those from the mainland have quadrupled”.

50. SNYDER, Steven H & BYRN, Mary Patricia, “The Use of Prebirth Parentage Orders in Surrogacy Proceedings” (2005) 39 Family Law Quarterly 633 at 643-647 .

51. Ibid.

52. Johnston, supra note 41 at [4.034].

53. Ibid at [7.088] and [7.101]; see also COLLINS, Lord et al, eds, Dicey, Morris & Collins on the Conflict of Laws, 15th ed (London, UK: Sweet & Maxwell, 2016) at [5-005]-[5-007]; see also BLOM, Joost, “Public Policy in Private International Law and Its Evolution in Time” (2003) 50(3) Netherlands International Law Review 373 at 382-383 .

54. Dicey, Morris & Collins, supra note 53 at [5.008].

55. MILLS, Alex, “The Dimensions of Public Policy in Private International Law” (2008) 4(2) Journal of Private International Law 201 at 202 .

56. ENONCHONG, Nelson, “Public Policy in the Conflict of Laws: A Chinese Wall around Little England?” (1996) 45(3) International and Comparative Law Quarterly 633 at 636 .

57. Blom, supra note 53 at 383.

58. Ng Ka Ling and another v The Director of Immigration (1999) 2 HKCFAR 4 at 28; see also The Honourable Mr Justice BOKHARY, gen ed, RAMSDEN, Michael & HARGREAVES, Stuart, eds, Hong Kong Basic Law Handbook (Hong Kong: Sweet & Maxwell, 2015) at [39.4.2].

59. Blom, supra note 53 at 385-397.

60. See above Follow up on the Court of Final Appeal order in the Judicial Review case W v Registrar of Marriages, supra note 22.

61. RAMSDEN, Michael & MARSH, Luke, “Same-sex marriage in Hong Kong: the case for a constitutional right” (2015) 19(1) The International Journal of Human Rights 90 at 93 .

62. CHOI, Christy, “UK consulate in Hong Kong bars same-sex weddings after government objection”, South China Morning Post (9 June 2014), online: South China Morning Post <http://www.scmp.com/news/hong-kong/article/1528231/uk-diplomatic-missions-allow-same-sex-marriages-not-hong-kong>.

63. Press Release, Provision of same-sex marriage registration services by foreign consulates, supra note 6.

64. CHAN, Phil CW, “Stonewalling through Schizophrenia: An Anti-Gay Rights Culture in Hong Kong?” (2008) 12(2) Sexuality & Culture 71 at 75-76 .

65. Ibid at 83.

66. LOPER, K A, LAU, Holning & LAU, Charles, “Research Shows a Majority of People in Hong Kong Support Gay and Lesbian Couples’ Rights, Not Necessarily Marriage” (Briefing Paper, Centre for Comparative and Public Law, University of Hong Kong) (University of Hong Kong Faculty of Law Research Paper No 2014/001) (3 January 2014), online: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2374875>.

67. Ibid.

68. Domestic and Cohabitation Relationships Violence Ordinance (Cap 189): for a history of the legislative reform see SCULLY-HILL, Anne, “Domestic Violence in Hong Kong” in Phillippa HEWITT, ed, Family Law and Practice in Hong Kong, 2d ed (Hong Kong: Sweet & Maxwell, 2014) 481 .

69. Leung v Secretary for Justice [2005] HKEC 1334 at [43]-[46]; see also Secretary for Justice v Yau Yuk Lung Zigo (Yau Yuk Lung) [2007] 3 HKLRD 903; (2007) 10 HKCFAR 335.

70. Ramsden & Marsh, supra note 61 at 92.

71. Ibid at 97.

72. W v Registrar of Marriages, supra note 13.

73. Leung v Secretary for Justice [2006] 4 HKLRD 211.

74. QT v Director of Immigration, supra note 1 at [55].

75. Ibid at [93].

76. Leung v Secretary for Justice, supra note 73.

77. Secretary for Justice v Yau Yuk Lung Zigo, supra note 69.

78. Health and Welfare Bureau, The Administration’s reply to the eight submissions to LegCo Bills Committee on the Human Reproductive Technology Bill, CB(2) 660/98-99(01) (November 1998), online: Legco.gov.hk <http://www.legco.gov.hk/yr98-99/english/bc/bc53/papers/p660e01.pdf>.

79. IN, Nan-Hie, “Hong Kong ban on IVF for unwed is discriminatory, say critics”, South China Morning Post (9 January 2015), online: South China Morning Post <http://www.scmp.com/lifestyle/health/article/1677954/hong-kong-ban-ivf-unwed-discriminatory-say-critics>.

80. Ibid: “…letting non-married individuals access assisted reproductive technology would weaken the institution of marriage.”

81. Ibid.

82. “More liberal access to surrogacy wanted”, supra note 49.

83. “Hong Kongers unafraid to break law to realise dreams of parenthood”, Global Health and Travel (February – March 2015), online: Global Health and Travel <https://www.fertility-miracles.com/PDFs/Global_Health_and_Travel_Feb-March_2015.pdf>.

84. United Nations Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3, online: United Nations Treaty Collection <http://untreaty.un.org>, art 3(1): In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

85. Belinda FEHLBERG et al, “Caring for children after parental separation: would legislation for shared parenting time help children?” (Family Policy Briefing 7, University of Oxford Department of Social Policy and Intervention, May 2011), online: Nuffield Foundation <http://www.nuffieldfoundation.org/sites/default/files/files/Would%20legislation%20for%20shared%20parenting%20time%20help%20children) OXLAP%20FPB%207.pdf>.

86. UNCRC, supra note 84, arts 7-9 provides:

Art 7:

1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.

2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.

Art 8:

1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.

Art 9:

1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.

2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.

4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.

* LL.B. (Hons) (Lond.), LL.M. (Lond.); Associate Professor, Faculty of Law, The Chinese University of Hong Kong. The author wishes to thank the anonymous reviewers for their helpful and constructive comments. Any errors of course remain the author’s own.

Competing Family Law Norms: Challenging Hong Kong Law’s Conceptualization of the Ideal Family

  • Anne SCULLY-HILL (a1)

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