OMH v MT
Court of Appeal
Civil Appeal No. 65 of 2015
Lam V-P, Cheung and Chu JJA
19 May 2017

Parentage – declaration sought under s. 6(1) that respondent natural father of applicant – respondent absent and no scientific evidence – immigration status of applicant at issue – degree of proof required and approach – applicability of “manifestly contrary to public policy” ground for refusing declaration

In 2007, M, an Indonesian national and domestic helper in Hong Kong, began to cohabit with F, a Pakistani national who became a permanent resident of Hong Kong in November 2007. M claimed that she had a monogamous relationship with F; she discovered she was pregnant in September 2008 and told F about it; she left F in October 2008 and was later arrested for overstaying since June 2007 and working illegally, but released on recognizance. In July 2009, M’s son, X, was born. X’s father was not named on his birth certificate. X, by M as his next friend, applied for a declaration under s. 6(1) of the Parent and Child Ordinance (Cap. 429) (the “PCO”) that F was his natural father. M could not contact F. After failing to effect personal service on him even though he was in Hong Kong at the time, X’s solicitors (“S”) effected substituted service by advertisements in a local English newspaper. F never appeared at hearings. In March 2014, the Deputy Judge dismissed X’s application, finding that inter alia X had not proved that F was his natural father, since there had been no use of scientific tests as provided for under s. 13 of the PCO; solid evidence was required given the “massive” consequences of a declaration; and it would manifestly be contrary to public policy to determine parentage based solely on M’s assertion that she had no other sexual partners. X appealed. In November 2015, M traced and contacted F, who had another family and did not want his wife to know about X or the proceedings. In December 2015, F terminated all contact with M and X after being asked to collect court documents or provide an address for service of the same.

Held, allowing the appeal by granting the declaration sought, that:

  • The issue of paternity was a serious one. On an application under s. 6(1) of the PCO, the court should consider the potentially far-reaching effects of a declaration which was binding on the Government and all persons, proceed with caution and require cogent proof of the truth, but also apply common sense in assessing the evidence. The court would refuse a declaration as being “manifestly contrary to public policy” only where it would offend against our ideas of substantial justice. This residual discretion was to be sparingly exercised.
  • The fact that the only evidence of parentage came from M did not necessitate corroborative evidence, although this went to whether the requirements in s. 6(3) were satisfied. It was relevant that notice of the application and the hearing was given by substituted service and F had not entered an appearance.
  • The Deputy Judge was right to adopt a cautious approach. However, he was unduly swayed by the absence of evidence of scientific tests. M had lost contact with F before X’s birth and thus, the unavailability of such evidence was due to circumstances beyond X’s control. On an overall view and given the Deputy Judge made no adverse finding on M’s credibility, the lack of scientific evidence did not undermine M’s evidence or X’s case.
  • M’s omission to mention F’s response when she told him about her pregnancy, although potentially crucial, did not mean the Court should or could not act on her evidence alone. If it was of concern, the Deputy Judge should have invited counsel to address him on what effect, if any, the omission had on the rest of M’s evidence and X’s claim. Moreover, M’s evidence that she was monogamous while cohabiting with F, was neither rejected nor doubted, and was capable of supporting X’s case on paternity. However, this issue was not canvassed at the hearing.
  • It was clear that, despite having notice, F did not wish to participate in the court proceedings or to challenge X’s application. On all the evidence, X’s parentage was established.
  • As for whether it would be manifestly contrary to public policy to grant a declaration under s. 6(1), X’s application was uncontested. The fact that the only evidence in support came from M and the lack of scientific evidence were not relevant considerations. There was nothing repugnant to the ideas of substantial justice in granting the declaration.
Jurisdictions: 

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