In a pathbreaking decision the High Court has used the inherent wardship jurisdiction to fill a hole in Hong Kong’s family law that threatened to leave it without the ability to regulate children’s upbringing: S v J (Director of Immigration intervening), HCMP 1857 of 2016, 8 September 2017). This sensible decision is a good illustration of the jurisdiction’s flexibility. It also marks a departure from the approach taken in England to these issues. Sight should not be lost of the fact that the existing legislation, first drafted 30 years ago in England, is ill-equipped to deal with contemporary family realities.
Who are the parents?
The problem that arose in S v J came about following family breakdown. S and J, married at the time, commissioned (an unattractive title used in most of the literature on this topic) two children by surrogacy arrangements in India. The family moved to Hong Kong, where divorce proceedings were initiated some years later. The High Court case came about because in the divorce proceedings the Family Court noted that it did not appear the parties were, as a matter of law, the “parents” of the children to the marriage.
That was because of provisions in the Parent and Child Ordinance, Cap. 429, which provide that in a surrogacy arrangement it is the mother who delivered the child, i.e. the surrogate mother, who is, at law, her parent. The father is the surrogate mother’s husband (if any). These provisions take effect regardless of where in the world the surrogacy took place.
Consequently S and J were not the parents of their children. The surrogate mother in India and her husband (if any) were the legal parents. This was, notwithstanding that the children were the genetic offspring of S and J and had been raised by S and J as their own and the birth certificates, issued in India, bore the names of S and J.
S, the commissioning father, therefore brought the High Court application. He sought a parental order under s. 12 of the Parent Child Ordinance, which allows the court to order that commissioning parents are the legal parents.
The High Court could not make the parental orders sought, as J, the commissioning mother, did not consent to the order being made. It appears that she was concerned that it would affect her ability to remove the children to Canada after separation.
Flooding the lacuna
The question that remained was how the court could supervise the upbringing of the children as S and J’s marriage had broken down. It appeared that without a parental order the divorce proceedings would not confer jurisdiction.
Nor could the guardianship scheme be utilised, since it was also based on parenthood (which S and J lacked). There was a hole in the law and the risk that the children’s upbringing could not be protected, notwithstanding that S and J’s relationship had broken down and that relations appeared acrimonious. That was clearly detrimental to the children’s best interests. The Court’s innovative answer was to invoke the wardship jurisdiction. At  the Court said:
“The Children were thus made wards of court under the inherent jurisdiction of the court, to fill the lacuna of the law until better arrangements are made as to their legal identities and status. Care and control was given to the Wife with access to the Husband. For the avoidance of doubt, the parties or any of them are at liberty to apply for adoption. They should act promptly in the interests of the Children.”
S v J does not address a number of uncertainties that commissioning parents face in Hong Kong – and nor could it. What the Court’s decision shows is that the legislature’s failure to give the court power to supervise children’s upbringing will not deny the court the power or inclination to make orders. Wardship may vest at the invocation from the judge rather than upon the application of either of the parents or other interested party.
Incidentally, this approach is very much in line with that taken by the European Court of Human Rights, which is to evaluate the child’s de facto identity and not her de jure status: Paradiso and Campanelli v Italy  ECHR 76. Moreover the decision is wholly consistent with Vice President Lam’s recent observation, in CLP v CSN and Another CACV 255/2016,  5 HKLRD 530:
“The crucial consideration is whether there is any real need for the Court to exercise the wardship jurisdiction in the interest of the child and it is a broad discretionary jurisdiction with the ability to develop in light of prevailing social conditions. The flexibility of the common law can permit developments of the law which may not have been envisaged in earlier cases.”