Z, a minor suing by his mother and next friend X v. Y

HCMP 1609/2022

[2022] HKCFI 3695

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1609 OF 2022

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JUDGMENT

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INTRODUCTION

1.  Before this Court is an application for a declaration of non-parentage[1]. The applicant, a minor, (referred to hereinafter as either “Applicant” or “Z”) through his next friend namely his mother X is seeking a declaration that the respondent Y, who is named on the Applicant’s birth certificate as his father, is not his father. The question is whether this Court has the jurisdiction to make such a declaration under section 6 of the Parent and Child Ordinance, Cap 429 (“PCO”) and if not, whether the Court has inherent jurisdiction as parens patriae, and/or power under Order 15 rule 16 of the Rules of the High Court to make such a declaration.

2.  Y has indicated in his acknowledgment of service that he does not contest the application.

3.  On 7 November 2022, this Court granted leave to the Secretary for Justice (“SJ”) to intervene in the present proceedings. SJ has invited the Court to dismiss the application.

4.  This is not the first time that the Applicant has sought a declaration of non-parentage. The Applicant had originally issued an originating summons in the Family Court (FCMP 261/2021) under section 6 of the PCO to seek a declaration of non-parentage, namely that Y was/is not the father of the Applicant, and subsequently the originating summons was amended to seek a declaration that Y was the father of the Applicant under sections 5 and 6 of the PCO and also section 12B of the Births and Deaths Registration Ordinance, Cap 174 (“BDRO”)(“FC Proceedings”).

5.  SJ decided to intervene in the FC Proceedings upon being notified at the direction of PFCJ CK Chan (“Judge”), and had raised objections to the application. After hearing from the parties, the Judge dismissed the amended originating summons although he was satisfied by the evidence that Y was in fact not the father of the Applicant.[2]

6.  In the judgment delivered by the Judge (“FC Judgment”)[3], the Judge simply took the view that the English provision under section 55A of the Family Law Act 1986 (“1986 Act”) is differently worded and that there is no provision in the plain wording of section 6(1)(a) of PCO for him to grant a declaration that a person is or was not a parent of another person.

7.  There was no appeal against the FC Judgment. Instead, the Applicant issued the originating summons in the present proceedings. Upon being alerted to these proceedings when SJ wrote to the Court on 4 November 2022 to seek directions, this Court had sent a letter dated 8 November 2022 to the parties and to SJ and had raised the issue as to whether the Court was bound by the Judge’s decision[4]. Leave was then granted for the Applicant to amend the heading of the originating summons herein to invoke not only the inherent jurisdiction of the Court but also sections 5 to 8 of the PCO for the present application, and directions were given for submissions to be lodged by the parties, together with authorities including the relevant UK legislative provisions and the Hong Kong legislative history of the PCO.

8.  The Applicant had also in the present originating summons sought directions for an expedited hearing, that all hearings be conducted in chambers (not open to public), and an anonymity order throughout the proceedings and in the daily cause lists. Such directions should normally be sought from the Court prior to the issue of the originating summons and before the fixing of the hearing date, as otherwise, the purpose of seeking such directions would be defeated. However, the Applicant failed to do so notwithstanding writing to the High Court Registry to seek directions for an early/expedited hearing. Having said this, for what it is worth, upon being alerted to these proceedings after SJ wrote to the Court on 4 November 2022, this Court has granted an anonymity order on papers and directed the hearing to take place in chambers not open to public.

9.  Counsel Ms Alison Choy appeared for the Applicant at the hearing before this Court and Ms Leona Cheung, Acting Principal Government Counsel and Ms Vivian Kao, Acting Senior Government Counsel, appeared for SJ.

SJ’S POSITION

10.  To assist this Court, SJ has drawn the Court’s attention to the following issues:

(1)  the Applicant is estopped from reopening the jurisdictional issue of section 6(1)(a) of PCO, and in any event, the Court does not jurisdiction under section 6(1)(a) of PCO to grant the declaration sought (“Issue Estoppel”)

(2)  it is not open for the Court to exercise its parens patriae jurisdiction to grant a declaration where there is already a statutory scheme covering the exact situation (“Inherent Jurisdiction”)

(3)  The present case is not a proper case for invoking Order 15 rule 16 of the RHC and even if the declaration sought is granted, it would serve no useful purpose (“Utility Issue”)

THE BACKGROUND

11.  X is a Hong Kong permanent resident. (Part of paragraph redacted by leave of Court.)

12.  Thereafter, X and Y began dating and they had sexual relationship. (Part of paragraph redacted by leave of Court.)

13.  Z was born in Hong Kong. On Z’s birth certificate, Y was stated to be Z’s father, and Z was given a surname as that of Y’s. (Part of paragraph redacted by leave of Court.)

14.  (Redacted by leave of Court.)

15.  (Redacted by leave of Court.)

16.  The DNA report dated 19 October 2012 (“DNA Report”) confirmed that Y was/is not the biological father of Z. (Part of paragraph redacted by leave of Court.)

17.  (Redacted by leave of Court.)

18.  (Redacted by leave of Court.)

19.  (Redacted by leave of Court.)

20.  (Redacted by leave of Court.)

THE FC PROCEEDINGS

21.  As mentioned earlier, in the originating summons issued on 8 December 2021 in the FC Proceedings[5], the Applicant had sought a declaration of non-parentage as follows:

“A declaration that [Y] is and was not in law father of [Z] , a boy, born on…..”

(emphasis added)

22.  It was stated in the title of the originating summons that the Applicant relied on section 6 of the PCO and inherent jurisdiction of Family Court.

23.  The Applicant was represented by his solicitor Ms Joanna Ip at the hearings before the Judge.

24.  It would appear that at a call over hearing of the originating summons, the Judge had pointed out to the parties that the court did not have jurisdiction to make a declaration of non-parentage and the matter was then adjourned for the Applicant to take legal advice, after which the Applicant sought an amendment of the originating summons[6].

25.  The amended originating summons was filed on 30 May 2022, and the Applicant sought to rely on both sections 5 and 6 of the PCO and section 12B of the BDRO and sought the following:

“1. A declaration that [Y] was in law father of [Z], a boy, born on…….

2. Further and/or Alternatively, a declaration that [Y] was in law father of [Z]”

26.  The alternative declaration sought seems no different from the main declaration sought. According to the skeleton arguments submitted by Ms Ip on 4 August 2022[7], the Judge had indicated at the call over hearing on 27 May 2022 that he might consider granting an order in terms of the amended originating summons with a preamble in following terms:

“[Y] being registered as the father of the [Z] appearing in the Birth Certificate of [Z] is presumed to be the father of [Z] and such presumption is rebutted for the reasons that [Y] is not the biological father of [Z]”.

27.  The above preamble did not appear in the drawn up order made by the Judge (“FC Order”). In any event, as the transcript of the call over hearing has not been placed before this Court, it is not clear what exactly was indicated by the Judge at the call over hearing.

28.  In the FC Judgement, the Judge had said that what was sought by the Applicant in the original originating summons was a declaration of non-parentage, and although the originating summons had been amended to instead asking for a declaration that Y was in law father of Z, the Judge thought what X was wanting to achieve was “to try to convince the Registrar of Births and Deaths that [Y]’s fatherhood of [Z] only restricted to the past and that [Y] is no longer the father of [Z].”[8]

29.  The Judge then identified the following two issues[9]:

(1)  Does the court have jurisdiction to grant a declaration of non-parentage, namely that [Y] is and was not in law father of [Z]? and

(2)  If not, should the court grant the declaration as prayed in [Z]’s amended originating summons that [Y] was in law father of [Z]?

30.  As mentioned, the Judge came to the view that the courts in Hong Kong do not have power to grant a declaration of non-parentage under section 6 of PCO[10]. He agreed with the submissions of Ms Kao appearing for SJ before the Judge that as there was unequivocal evidence that [Y] was not the father, it could not be right for the Judge to grant a declaration as sought. The Judge thus dismissed the amended originating summons. However, the Judge went on to say that he was prepared to state in the order that “the court is satisfied by the evidence that [Y] was in fact not the father of [Z]” (“Statement of Non-Parentage”), but he added that did not know if that would be of any help to [Z].”[11]

31.  The Statement of Non-Parentage forms part of the main body of the FC Order , namely paragraph 2 thereof[12].

THE PRESENT APPLICATION

32.  In the present proceedings, as said, the Applicant is again seeking a declaration of non-parentage as follows:

“A declaration that [Y] is not the father of [Z], a boy, born on…..”[13]

33.  In the present originating summons, the Applicant has initially relied on section 3(1)(a) of the Guardianship of Minor Ordinance, Cap 13 (“GMO”), the Court’s inherent/parens patriae jurisdiction, and also Order 15 rule 16 of the RHC. As mentioned earlier, leave was granted for the Applicant to rely on sections 5 to 8 of the PCO.

34.  In so far as the inherent jurisdiction is concerned, as this Court understands, what the Applicant is now invoking is the Court’s parens patriae jurisdiction, not any wider inherent jurisdiction, and there is no application for Z to be warded. Further, the present application is not made under section 12B of the BDRO.

SECTIONS 5 AND 6 OF THE PCO

35.  Part III of the PCO is on “Presumptions as to Paternity and Legitimacy” and section 5 provides as follows

“5. Presumptions

(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.

(2) Any presumption under subsection (1) may be rebutted by proof on a balance of probabilities.

(3) The presumption of law as to a child’s legitimacy arising by virtue of the marriage of the child’s mother at a time related to the conception or birth of the child may be rebutted by proof on a balance of probabilities.

(4) Subsection (1)(a), and the presumption referred to in subsection (3), shall apply in the case of a void or voidable marriage as they apply in the case of a valid marriage.

[cf. 1986 c. 9 s. 5 Scot]

*Commencement date:19 June 1993”

36.  Part IV of PCO concerns “Declarations of Status”, and sections 6 - 8 provide as follows:

“6. Declarations of parentage, legitimacy or legitimation

(1) Any person may apply to the court for a declaration that—

(a) a person named in the application is or was in law his parent;

(b) he is the legitimate child of his parents; or

(c) he has become, or has not become, a legitimated person.

(2) A court shall only have jurisdiction to entertain an application under this section if, at the date of the application, the applicant—

(a) is domiciled in Hong Kong;

(b) has been habitually resident in Hong Kong throughout the period of 1 year ending with that date; or

(c) has a substantial connection with Hong Kong.

(3) Where on an application for a declaration under this section the truth of the proposition to be declared is proved to the satisfaction of the court, the court shall make that declaration unless to do so would manifestly be contrary to public policy.

(4) Where a declaration is made on an application under subsection (1)(a) or (b), the Registrar of the court shall notify the Registrar of Births and Deaths, in such manner and within such period as may be prescribed, of the making of that declaration.

(5) Any declaration made under this section shall be binding on the Crown and all other persons.

(6) The court, on the dismissal of an application for a declaration under this section, shall not have power to make any declaration for which the application has not been made.

(7) No declaration which may be applied for under this section may be made otherwise than under this section by any court.

(8) No declaration may be made by any court, whether under this section or otherwise, that any person is or was illegitimate.

[cf. 1986 c. 55 ss. 56 & 58 U.K.; 1987 c. 42 s. 22 U.K.]

7. Provisions relating to the Secretary for Justice

(1) On an application for a declaration under this Part the court may at any stage of the proceedings, of its own motion or on the application of any party to the proceedings, direct that all necessary papers in the matter be sent to the Secretary for Justice.

(2) The Secretary for Justice, whether or not he is sent papers in relation to an application for a declaration under this Part, may—

(a) intervene in the proceedings on that application in such manner as he thinks necessary or expedient; and

(b) argue before the court any question in relation to the application which the court considers it necessary to have fully argued.

(3) Where any costs are incurred by the Secretary for Justice in connection with any application for a declaration under this Part, the court may make such order as it considers just as to the payment of those costs by parties to the proceedings.

(Amended L.N. 362 of 1997)

[cf. 1986 c. 55 s. 59 U.K.]

8. Supplementary provisions as to declarations

(1) Any declaration made under this Part, and any application for such a declaration, shall be in the form prescribed by rules under this Ordinance.

(2) No proceedings under this Part shall affect any final judgment or decree already pronounced or made by any court of competent jurisdiction.

(3) The court hearing an application under this Part may direct that the whole or any part of the proceedings shall be heard in camera, and an application for a direction under this subsection shall be heard in camera unless the court otherwise directs.”

[cf. 1986 c. 55 s. 60 U.K.]

THE PRESUMPTIONS IN SECTION 5 OF PCO

37.  As set out above, section 5 sets out the presumption of law as to paternity and legitimacy firstly under section 5(1)(a) and then under section 5(1)(b).

38.  (Redacted by leave of Court.)

39.  There being no man being presumed to be the father of Z under paragraph 5(1)(a), then the presumption in paragraph 5(1)(b) kicks in, namely Y shall be presumed to be the father of Z, Y being the man whose name is registered as the father of the Z on Z’s birth certificate. However, the DNA Report clearly indicates that Z cannot be the biological father of Z. I am therefore satisfied that the presumption in paragraph 5(1)(b) has also been rebutted under section 5(2) and/or (3).

40.  Although the Statement of Non Parentage has been made by the Judge and included in the body of the FC Order[14], there appeared to have been no clear findings by the Judge in the FC Judgment as to the presumptions, or whether they have been rebutted.

41.  For avoidance of doubt, I am of the view that there should be a record in the order I intend to make, that the two presumptions in section 5 of PCO have both been rebutted on a balance of probabilities.

ISSUE ESTOPPEL

42.  In the FC Proceedings before the Judge, Ms Ip for the Applicant had submitted that section 6 as well as section 5 of PCO both provided the basis for the Judge to grant the declarations sought by the Applicant in the amended originating summons, and further for the complete erasure of Y’s name on Z’s birth certificate[15].

43.  It was not quite clear why the Applicant was seeking in the amended originating summons a declaration that Y was in law Z’s father since the DNA Report clearly showed that Y was/is not the father of Z, nor was it clear from Ms Ip’s arguments/submissions as to why or how such a declaration, if granted, would assist the Applicant in having Y’s name erased from Z’s birth certificate.

44.  In any event, there seemed to have been no detailed submissions/arguments by Ms Ip in relation to whether the Judge had the power/jurisdiction under section 6 of PCO to make a declaration of non-parentage. On the other hand, Ms Kao had clearly submitted on behalf of SJ that there was no such jurisdiction under section 6 of PCO[16].

45.  It would further appear that the Applicant had accepted that there was no power/jurisdiction under section 6 of PCO for the Judge to grant the declaration of non-parentage, since firstly, by amending the relief sought in the originating summons after the Judge’s indication at the call over hearing on his lack of power/jurisdiction, and secondly, in the letter dated 7 November 2022, the Applicant’s solicitors had written to SJ stating that “…. There should be no dispute that HHJ CK Chan did not have the power or jurisdiction to make the order that [Y] was not the father of the Minor, because s 6(1)(a) of the [PCO] only empowered HHJ CK Chan to make a declaration of parentage and not a declaration of non-parentage”.[17]

46.  The present submissions made by Ms Choy on this Court’s power or jurisdiction have clearly come about after this Court’s letter of 8 November 2022 to the parties stating that this Court was not bound by a decision of a lower court, but this Court had made clear in the letter that at that stage, the Court had not had sight of the skeleton submissions of the parties, nor of the transcript of the hearing before the Judge.

47.  Although there was no transcript of the hearing before the Judge, having considered the then skeleton submissions put forward by Ms Kao on behalf of SJ, as the Judge had pointed out in the FC Judgment, one of the two issues before him was whether he had the power/jurisdiction to grant a declaration of non-parentage, and the Judge then went on to determine the issue in accordance with the plain wording of section 6. Although the Judge’s finding was not based on any legislative history or material (which was not produced before him nor were there any submissions with reference thereto), there had been clearly a legal finding by the Judge on a legal point. As said earlier, there had not been any appeal against the FC Judgment.

48.  Having considered the above, I accept Ms Cheung’s submissions that it is not for this Court now to re-open this issue or to allow re-litigation on the issue. In any event, having considered legislative material before this Court leading to the introduction of the PCO, I accept Ms Cheung’s submissions that there is no power for this Court to grant a declaration of non-parentage under section 6 of PCO.

INHERENT JURISDICTION

General legal principles

49.  The inherent jurisdiction of the Court of First Instance of the High Court (“CFI”) derives from section 12(2)(a) of the High Court Ordinance, Cap 4, which provides that the “civil jurisdiction of the [CFI] shall consist of original jurisdiction and authority of a like nature and extent as that held and exercised by the Chancery, Family and Queen’s Bench Divisions of the High Court of Justice in England ”.

50.  The inherent jurisdiction generally of the High Court of Justice in England with respect of children had been explained in detail in Tameside Metropolitan Borough Council v AM [2021] EWHC 2472 (Fam) which involved 4 cases taken out by the local authorities. The common question in the 4 cases was whether it remained open to the court in an appropriate case to grant a declaration authorising the deprivation of liberty of a child under the age of 16 where the placement in which the restrictions that were the subject of the declaration would be applied was a placement that was prohibited by the terms of the statutory scheme which would be imminently amended. In short, the legal question was whether, in light of the implementation of the amended statutory scheme, the applications by the 4 local authorities before the court could still fall, if necessary, within the territory preserved for the inherent jurisdiction.

51.  I find what was set out by Mr Justice MacDonald in his judgment in the above case to be extremely helpful in understanding generally the inherent jurisdiction with respect of children and those relevant parts of his judgment are set out hereunder for easy reference:

“47. The inherent jurisdiction of the High Court with respect to children derives from the royal prerogative, as parens patriae, to take care of those who are not able to take care of themselves (see In re L (An Infant) [1968] P 119 at 127A). The origins of the jurisdiction with respect to children lie in the feudal period when, as an incidence of tenure, upon a tenant's death, the lord became guardian of the tenant’s surviving infant heir's land and body (see NV Lowe & RAH White, Wards of Court, 2^nd ed (1986)).

48. Within this context, one of the defining features of the inherent jurisdiction of the High Court in relation to children (consistent with principle enshrined in the term parens patriae that State authority carries with it the responsibility for the protection of citizens unable to protect themselves) is that it is protective in nature…..

49. As Lady Black pointed up in Re T at [66], it is important to note that the courts have emphasised, consistent with the protective character of the inherent jurisdiction, the importance of anticipating and preventing harm, Lord Eldon LC noting in Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 18:

‘… it has always been the principle of this Court, not to risk the incurring of damage to children which it cannot repair, but rather to prevent the damage being done.’

50. Within this context, it has long been recognised that the courts’ inherent jurisdiction may be used notwithstanding the existence of a statutory scheme to supplement that statutory scheme in order to fill a gap or to avoid injustice (see for example Willis v Earl Beauchamp (1886) 11PD 59 at 63). As Lord Donaldson of Lymington MR observed in the Court of Appeal in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 at 13, in a passage approved by the House of Lords on appeal:

‘… the common law is the great safety net which lies behind all statute law and is capable of filling gaps left by that law, if and in so far as those gaps have to be filled in the interests of society as a whole. This process of using the common law to fill gaps is one of the most important duties of the judges. It is not a legislative function or process—that is an alternative solution the initiation of which is the sole prerogative of Parliament. It is an essentially judicial process and, as such, it has to be undertaken in accordance with principle.’

51. By way of examples in the context of the law relating to children, in Re C (A Minor)(Adoption: Freeing Order) [1999] Fam 240 the court made an order under the inherent jurisdiction revoking a freeing order in circumstances where Parliament had provided no mechanism in the Adoption Act 1976 for revocation of a freeing order in the circumstances of that case. Likewise, in Re W and X (Wardship: Relatives Rejected as Foster Carers [2004] 1 FLR 415 the court gave effect to a placement with relatives that was prohibited by the terms of the Fostering Services Regulations 2002 by exercising the inherent jurisdiction to make the subject children wards of court.”

52.  As recognised by Mr Justice MacDonald, there are extensive limitations on the exercise by the High Court of the inherent jurisdiction, and he went on to say:

“52. However, whilst the jurisdiction of the High Court under the inherent jurisdiction is theoretically unlimited, it is important to bear in mind that there are, in fact, extensive limitations on the exercise by the High Court of that jurisdiction (see In re X (A Minor)(Wardship: Jurisdiction) [1975] Fam 47 at 61).

53. A statutory limitation on the use of the inherent jurisdiction with respect to children is imposed by the Children Act 1989 s. 100, which stipulates specific prohibitions on its use. …

54. Within this context, paragraph 1.1 of FPR Practice Direction 12D now makes plain that proceedings under the inherent jurisdiction for an order to determine any issue in relation to a child should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the statutory regime. …….

55. In addition to the statutory limitation contained in s.100 of the Children Act 1989, the doctrine of the sovereignty of Parliament places the courts under a duty to apply legislation made by Parliament. From this cardinal constitutional principle derive further limitations on the exercise of the inherent jurisdiction of the High Court that are relevant in the context of the matters before the court.

56. In A-G v De Keyser's Royal Hotel Limited [1920] AC 508, Lord Dunedin observed that “if the whole ground of something which could be done by the prerogative is covered by the statute, it is the statute that rules”. Within this context, in Richards v Richards [1984] AC 174 at 199, the House of Lords made clear that where Parliament has spelt out in considerable detail what must be done in a particular class of case it is not open to the court to disregard those provisions and apply a different jurisprudence from that which the statutory scheme prescribed by Parliament provides. Similarly, where Parliament has made detailed provisions as to how certain statutory functions are to be carried out, there is no scope for implying the existence of additional powers which lie wholly outside the relevant statutory code (see Crédit Suisse v Waltham Forest London Borough Council [1997] QB 362 at 374). In Wicks v Wicks [1999] Fam 65 the Court of Appeal (referring to the decisions in Siskina (Owners of cargo lately laden on board) v Distos Cia Naviera SA [1979] AC 210 at 262 and AJ Bekhor & Co Ltd v Bilton [1981] QB 923 at 942) reiterated the need for circumspection in respect of the proposition that the inherent jurisdiction of the court confers a general residual discretion to make any order necessary to ensure justice is done, orders affecting the parties’ substantive rights requiring to be governed by the general law and rules and not by resort to a wide judicial discretion derived from the court's inherent jurisdiction. Finally, in the context of the law relating to children, in Re B (A Child)(Reunite International Child Abduction Centre and Others Intervening) [2016] AC 606 at 656 Lord Sumption, in a dissenting judgment, stated plainly that:

‘…the inherent jurisdiction should not be exercised in a manner which cuts across the statutory scheme…I do not accept that the inherent jurisdiction can be used to circumvent principled limitations which Parliament has placed upon the jurisdiction of the court.’

57. Within the foregoing context, and as noted by Baker J (as he then was) in Health Service Executive v Ireland v Z [2016] Fam 375, the correct approach to determining, as the court is required to do in this case, whether and how far the inherent jurisdiction has been ousted by a given statutory provision, is that set out by Wood J in Westminster City Council v C [2007] EWHC 309 (Fam) at [119], in a passage left undisturbed by the Court of Appeal in Westminster City Council v C and Ors [2009] Fam 11 and approved by McFarlane LJ (as he then was) in the Court of Appeal in Re L (Vulnerable Adults with Capacity: Court’s Jurisdiction)(No.2) [2013] Fam 1 at [62], as follows:

‘Consistent with long-standing principle, the terms of the statute must be looked to first to see what Parliament has considered to be the appropriate statutory code, and the exercise of the inherent jurisdiction should not be deployed so as to undermine the will of Parliament as expressed in the statute or any supplementary regulatory framework.’”

53.  Pausing here for a moment, I would add that there is no equivalent of section 100 of the Children Act 1989 in Hong Kong, which has set out certain restrictions on the use of wardship jurisdiction, and in fact, no equivalent of the Children Act 1989.

54.  In paragraph 77 of his judgment, Mr Justice MacDonald had further said that:

“……In circumstances where the statutory scheme does not oust the inherent jurisdiction, it must be open to the court to deploy that jurisdiction where the application of the statutory scheme in circumstances not covered by or anticipated by the Act would result in a failure to safeguard and promote the welfare of the subject child…”

55.  In Re YL (a Minor) [2022] 3 HKLRD 699, [2022] HKCFI 2001[18], Queeny Au Yeung J had cited and endorsed paragraphs 47 and 77 of Tameside.[19]

56.  As for the difference between inherent jurisdiction and wardship, the learned authors of Hayes & Williams’ Family Law, 7^th Ed, have explained the difference between asking the High Court to exercise its inherent jurisdiction and warding a child is in the former, the court when exercising its inherent jurisdiction simply adjudicates on a particular aspect of the child’s welfare, whereas if the child is warded, the child is placed under the long–term control of the court (ie until majority)[20].

57.  To summarise, wardship stems from the royal prerogative as parens patriae, which is part of the Court’s inherent jurisdiction and the Court’s inherent jurisdiction may involve insuitable cases without necessarily wording the child in question.

58.  There is no real dispute between the parties over the above general legal principles.

SJ’s objections

59.  SJ’s objections to the Applicant invoking the Court’s inherent jurisdiction can be summarized as follows:

(1)  Despite the long history of this jurisdiction and that it is entrenched in our common law, neither party has been able to identify any case in which the parens patriae jurisdiction was invoked in relation to a declaration of parentage or non-parentage

(2)  There is no gap in the law

Whether the parens patriae jurisdiction has been invoked in the past in relation to a declaration of parentage or non-parentage

60.  Ms Cheung has submitted that it is not surprising that neither party has been able to identify any case in which the parens patriae jurisdiction was invoked in relation to a declaration of parentage or non-parentage as the nature of the jurisdiction is “to take care of those who are not able to take care of themselves”. It is argued that in circumstances where a declaration of parentage or non-parentage is being sought, it is highly unlikely that the child is in a situation in which he is not able to take care of himself, and that in the present case, Z has been under the good care of his mother all along, and is not a case where Z requires the protection of the court but rather he is seeking to achieve a specific purpose of correcting his birth certificate in a specified manner which is outside the law[21].

61.  I do not quite follow this argument. First, as I have said, there is no application to correct Z’s birth certificate now before the Court. Second, minors, being under age, are generally regarded as vulnerable persons who are not able to take care of themselves. For a minor to invoke the Court’s protective parens patriae jurisdiction does not mean that the minor has no one to care for him/her, and in my view the issue is whether the minor (his/her carer) is in need of protection not available unless with the Court’s intervention.

62.  Ms Cheung has also referred to Pagtama, Victorina Alegre & Another v Director of Immigration, HCAL 13/2014 (unrep, 12.01.16) in which Au J, as he then was, in paragraph 168 of his judgment rejected the contention that there is a common law principle of parens patriae that is of general application rather than rooted in the context of custody and wardship[22]. To support his rejection, Au J, as he then was, had referred to a passage in the textbook The Law of Human Rights (2^nd edition) in which it was stated the practical significance of the parens patriae jurisdiction being significantly reduced by the Children Act 1989.

63.  The Pagtama case went on appeal and was reported as Comilang, Milagros Texcon [2018] 2 HKLRD 534, [2018] HKCA 175. What the Court of Appeal accepted was that the common law principle of parens patriae has traditionally been limited to the context of family law and therefore questions relating to the interest of the child in that context and that the Court of Appeal was not persuaded that the common law had developed to cover cases in immigration context[23].

64.  As said earlier, there is no Children Act 1989 in Hong Kong, nor any equivalent provision to section 100 of the Children Act 1989 in Hong Kong. In any event, the Pagtama case and the Comilang case were public law cases and what was held therein had to be read in that context. I am of the view that they would not assist SJ in their present argument. Even though no authorities have been drawn to this Court’s attention that the inherent jurisdiction was invoked for the granting of a declaration of parentage or non-parentage, in my view this should not preclude the Court from exercising inherent jurisdiction to grant such a declaration in suitable cases.

Whether there is a gap in the law

65.  It is argued by Ms Cheung that there was no unintended gap in the statutory provisions and that it was the legislative intent not to provide the Court with the power to grant a declaration of non-paternity.

66.  What is clear is that the wording of sub-sections (1), (2) and (4) of section 6 of PCO are to the same effect as section 56 of the 1986 Act[24], and sub-sections (3), (5), (6) , (7) and (8) are to the same effect as section 58 of the 1986 Act[25].

67.  As seen in Ms Cheung’s skeleton submissions, section 56 of the 1986 Act was preluded by a series of law reform studies in England including the Report on Illegitimacy dated 20 December 1982 (Law Com No 118) (“No 118 Report”), the Report on Declarations in Family Matters (Law Com No 132”)(“No 132 Report”), and the Report on Declarations in Family Matters on Illegitimacy (Second Report) dated October 1986 (Law Com No 157) (“No 157 Report”).

68.  As stated in paragraph 10.43 of the No 118 Report, in the “Working Paper”, the members had proposed that a man should be entitled to an order recording a finding that he was not the father of a particular child in any case where the finding in effect involved the overturning of a presumption of paternity, and that commentators were divided on this question[26]. The members then went on to say in paragraph 10.44 that they were “not now inclined to make any recommendation on this point”, as it seemed to them that the only purpose of a negative finding (which could not in itself be prima facie evidence of anything) would be to facilitate the alteration of the father’s name on the child’s birth certificate, but then according to the members, in practice, this advantage would not be very great since if the evidence rebutting paternity were sufficiently clear it would be possible to correct any error relating to paternity which appeared in the register by using the procedure described in that report[27].

69.  Hence, the consideration which led to the members not making any recommendation at the time of the No 118 Report would appear to be simply that there was another procedure available under section 29(3) of the Births and Deaths Registration Act 1953 (which is said to mirror section 27 of our BDRO). What was also clear is that there had been no discussion or balancing of advantages and disadvantages as there was in paragraph 10.45, in relation to the consideration as to whether there should be compulsory paternity proceedings.

70.  The subsequent No 132 Report and No 157 Report contained no further discussions on non-paternity (non-parentage) declarations. As pointed out by Ms Cheung, appended to the No 157 Report was the Family Law Reform Bill and clause 22 thereof later became section 22 of the Family Law Reform Act 1987 which introduced what later became section 56 of the 1986 Act, upon which section 6 of PCO was modelled.

71.  Both Ms Choy and Ms Cheung have referred the Court to the Hong Kong Law Reform Commission’s report on “Illegitimacy” dated October 1991 (“LR Report”).

72.  In the LR Report, members had considered the law in other jurisdictions, and at that time, there were proof of paternity provisions only in England and Wales, and in Scotland. In England and Wales, as in Hong Kong, the court formerly had no jurisdiction to entertain applications for declarations of paternity where that was the only relief sought, nor could an illegitimate child apply for a declaration of legitimacy. The English Law Commission argued for the introduction of such a procedure and hence section 56 of the 1986 Act was introduced, allowing applications to be made by anyone for a declaration of paternity, legitimacy or legitimation, regardless of whether they were legitimate or illegitimate[28].

73.  As seen in the LR Report, in Scotland, a declaration of parentage that a person is or is not, the parent of a child has always been available in Scots Law and was at the time of the LR Report already incorporated in statute[29].

74.  However, in paragraph 5.48 of the LR Report, all that was stated therein was that the members recommended that the law should be amended to provide the right for a person to seek a declaration of paternity from the court without limiting this right to situations where the finding of paternity was incidental to custody or other proceedings. The consideration seemed to concentrate on whether the right was to be limited to proceedings where the finding of paternity was only incidental to other reliefs sought in the proceedings. In so far as the Court can see, there were no discussions set out in the LR Report as to why section 56 of the 1986 Act was followed or preferred over the Scottish provisions, nor were there any discussions on the advantages and disadvantages of whether there should or should not be power to grant a declaration of non-paternity (non-parentage).

75.  Ms Cheung has argued that as the same procedure regarding the alteration of the father’s name on the child’s birth certificate is also available under our BDRO, it was the intention of the Hong Kong Law Reform Commission to consciously follow the English provision section 56 of the 1986 Act, and not to introduce the power to grant a declaration of non-paternity, and that there was no unintentional gap in the law.

76.  First, as said, there was in fact no explanation nor discussion in the LR Report as to whether there should or should not be a recommendation of a power to grant a declaration of non-paternity (non-parentage), nor was there any specific reference to or discussion of what was set out in paragraph 10.44 in the No 118 Report. Second, from the wording in paragraph 10.44 of the No 118 Report, it is my reading and understanding that English Law Reform Commission did not in fact rule out the possibility that the point could be re-opened, if there were other purposes for a negative finding. The reality is that for whatever reasons, section 55A of the 1986 Act was in fact later brought in giving the Courts power to grant declarations of non-paternity.

77.  Having considered the above, it is my view that there is a gap in the existing statutory scheme in Hong Kong, ie in the present provisions of the PCO. I do not find there was a conscious decision on the part of the legislators, whether for reasons of public policy or otherwise, of not to grant the Court the power to make non-parentage declarations. I am of the view the Court can turn to its inherent jurisdiction to fill the gap.

UTILITY ISSUE

Order 15 rule 16 of RHC

78.  Order 15 rule 16 of RHC states that:

“16. Declaratory judgment (O 15, r 16)

No action or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed.”

79.  Ms Choy had relied on the case of T v Child Support Agency [1998] 1 WLR 144 to support her submission that the Court has power under Order 15 rule 16 of RHC to make a declaration of non-parentage. It was held in this case that in the absence of any other available relief, the court would exercise its discretion under Order 15 rule 16 of the Rules of the Supreme Court (RSC) to make a declaration that the appellant could not be the father of the child. Ms Cheung however had pointed out that in the above case all parties were in agreement that the court had jurisdiction under Order 15 rule 16 to make the declaration.

80.  Indeed, it was the contention of all the parties in the above case that the court did have jurisdiction[30]. Cazalet J had quoted what was stated in paragraph 15/16/3 of The Supreme Court Practice 1997, Vol 1, page 253 which was in fact the same as that is stated in paragraph 15/16/3, page 447 of the Hong Kong Civil Procedure 2022, Vol 1, namely:

“In wardship proceedings the court has no jurisdiction either under its inherent powers or otherwise, to grant a bare declaration of paternity, for such a declaration is not directly relevant to the issues normally dealt with in such proceedings, and even if it did have a discretionary jurisdiction to make a declaration of paternity, the court ought not to exercise such discretion to make such a declaration, since to do so might adversely affect the child’s interests, and in any event, the evidence of paternity would have to be conclusive or very nearly so (Re J.S. ( a minor) [1980] 1 All ER 1061)”

81.  In the case of In re JS (a Minor) [1981] Fam 22[31], Ormrod LJ giving the judgment in the Court of Appeal held that although the court had from time to time to decide the issue of paternity in order to resolve some other issue between the parties, it was rarely necessary to do so in wardship proceedings, referring to In re L (An Infant) [1968] P 119[32].

82.  Although it was decided in In re JS that there was no jurisdiction for the judge to make a declaration of paternity under the wardship proceedings, the reason would appear to be because it was not directly relevant to the issues normally dealt with in wardship proceedings[33], and also the declaration might adversely affect the child’s interests.

83.  In any event, in the T case, all the parties had agreed that the T case was readily distinguishable from the decision in In re JS . Further, this was also the view of Cazalet J who had said as follows:[34]

“In my view, as all parties agree, this case is readily distinguishable from the decision in In re JS (A Minor) [1981] Fam 22. Here the essential issue is as to paternity and although the declaration could adversely affect the child’s interests I bear that the evidence is now before the court is conclusive in establishing the appellant is not the father. Indeed that strong weight of the evidence must be vita criterion in any application for a declaration in such a case as this. Furthermore, if in fact some other avenue were to be open to an applicant entitling him to some other form of redress, this court would then be extremely slow in permitting recourse to the obtaining of a declaration.”

(underline added)

84.  I am of the view that the present case can also be distinguishable from In re JS and in fact, not only in the present case, as in the T case the evidence can also be said to be conclusive that Y is not the father of Z, but the declaration is on the evidence in Z’s best interests.

85.  Ms Cheung has also referred the Court to the case of Nixon v Attorney General [1930] 1 Ch 566 at 574-575 and raised the query of whether a declaration of non-parentage is a “declaration of right” under Order 15 rules 16. What was decided in the Nixon case was that the plaintiffs had no legal right enforceable in a court of law to superannuation allowances calculated according to those statutory provisions cited therein. However, all that was said by Clauson J in his judgment was that he had no power to make any declaration except a declaration of a legal right under the relevant rules[35].

86.  Apart from referring this Court to what was said by Clauson J, there were no other authorities from Ms Cheung as to whether a declaration of non-parentage was or was not a declaration of legal right. It is not clear how what was said by Clauson J could assist this Court in determining to whether a declaration of non-parentage is or is not a legal right.

87.  Further, I note in paragraph 15/16/1 of the Hong Kong Civil Procedure 2022, Vol 1, the learned authors had referred to Re S (Hospital Patient: Court’s Jurisdiction) [1995] 3 WLR 78, [1996] Fam 1. In this case, the plaintiff had sought declarations over the care and medical treatment of S adult patient incapacitated by a stroke, and Millet LJ had said that:

“There is no parens patriae jurisdiction over the person of an incompetent patient or jurisdiction to approve or authorise the proposed *7 form of treatment or care and therefore declaratory relief is the only available relief: see In re F. (Mental Patient: Sterilisation) [1990] 2 A.C. 1 , 57-63, 64. The discretion to grant such relief is exercised liberally and not only in support of an existing cause of action: see R.S.C., Ord. 15, r. 16. It may be sought by any person having an interest in the subject matter of the declaration: see Guaranty Trust Co. of New York v. Hannay & Co. [1915] 2 K.B. 536. The applicant must show that he seeks something which will relieve him from a real liability or disadvantage, and that his interest is not shadowy, indirect or insubstantial: see Thorne Rural District Council v. Bunting [1972] Ch. 470 , 477-478. The rights sought to be protected must be legal rights, although they may be difficult to identify: see Royal College of Nursing of the United Kingdom v. Department of Health and Social Security [1981] A.C. 800 and Gillick v. West Norfolk and Wisbech Area Health Authority [1986] A.C. 112 . Medical treatment which is in the patient's best interests can properly form the subject matter of a declaration: see In re F. [1990] 2 A.C. 1 ; Bland's case [1993] A.C. 789 and In re C. (Mental Patient: Contact) [1993] 1 F.L.R. 940 .”

(underline added)

88.  Having considered the above, and there being no other authorities submitted on behalf of SJ to indicate a declaration of non-parentage is not a legal right, I see no reason why such a declaration cannot be the subject matter of a declaration under Order 15 rule 16.

What use does the declaration serve

89.  It is submitted by Ms Cheung that the declaration sought serves no useful purpose, and that there has been a finding of fact that Y was/is not the father of Z, as recorded by the Statement of Non Parentage in the FC Order, and that this is sufficient to rebut the presumptions in section 5.

90.  However, as pointed out by this Court, apart from the Judge indicating that he was prepared to make the Statement of Non Parentage, there was no actual or clear finding of the rebuttal of the presumption, in particular in relation to the presumption in section 5(1)(a). There was no mention of the presumptions or any consideration thereof in the FC Judgment.

91.  (Redacted by leave of Court.)

92.  (Redacted by leave of Court.)

93.  The present application is not about rectification of Z’s birth certificate even though I understand that armed with the declaration sought, if granted by this Court, X and Z might try to approach the Registrar of Births and Deaths again to see whether the birth certificate can be rectified so that the space about the information regarding “father” can be left blank. I also note that Ms Cheung has pointed out this is not possible under the provisions of BDRO. (Part of paragraph redacted by leave of Court.)

94.  In any event, Ms Choy submits that the present application is not an application in relation to the rectification of the birth certificate and that the declaration sought if granted will be of intrinsic value to Z and in his best interest.

95.  What is clear is that as Z is at present still a minor, this Court has to have regard his best interests of paramount consideration. I have come to the view that the declaration is of use to Z and this would be in Z’s best interests. (Part of paragraph redacted by leave of Court.)

CONCLUSION

96.  In light of all said above, having considered Z’s best interests and welfare, I am prepared to grant the declaration of non-parentage sought.

97.  The draft order should reflect the following:

“Upon the Court being satisfied on a balance of probabilities that the presumptions in section 5(1)(a) and section 5(1)(b) of PCO having both been rebutted, it is hereby declared that Y is not the father of Z.”

COSTS

98.  In light of my decision, I am of the view that there should be no order as to costs. This is an order nisi which shall be made final after 21 days.

99.  Finally, I would like to thank all Counsel for their assistance to this Court in this case.