HC formerly known as HWH v. WYH

HCMC 3/2023

[2024] HKCFI 1157

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MATRIMONIAL CAUSES NO 3 OF 2023

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JUDGMENT

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A.  INTRODUCTION

1.  This is the hearing of a preliminary issue as to whether the court has jurisdiction in matrimonial proceedings to make custody and maintenance orders for two children whom I shall refer to as X and Y, who were born in 2018 by different surrogate mothers pursuant to commercial surrogacy arrangements.

2.  By a decision handed down on 28 July 2023, these proceedings were transferred to this Court by Family Court Judge Grace Chan (“Judge”) and the Official Solicitor (“OS”) was requested to represent X and Y (“Decision”). The Judge’s major concern is whether the Family Court can grant custody of the children to the petitioner wife in the present case notwithstanding that (a) a parental order or an adoption order has not been put in place to legalise the parent-child relationship; and/or (b) the court has not sanctioned the expenses of the surrogacy agreements which are prohibited and unenforceable under the law in Hong Kong.

B.  BACKGROUND

3.  The parties were married in 2012 but separated since about March 2019. The petitioner wife (“W”) issued a petition for divorce in April 2022 to which the respondent husband (“H”) did not oppose. A decree nisi of divorce was later granted on 27 September 2022.

4.  H and W have a son born in 2015. In 2017, they decided to enter into 2 surrogacy agreements through an agency in California in USA and as a result, (i) X , a daughter, was born in September 2018 by a surrogate mother Ms A, by an embryo formed by the respective gametes of H and W and transferred to the uterus of Ms A, and (ii) Y, a son, was born in November 2018 by a similar procedure with an embryo formed by the respective gametes of H and W transferred to the uterus of Ms B.

5.  The parties were able to reach an agreement for W to have custody, care and control of all three children with reasonable access to H and H agreed to pay maintenance for them. The agreed terms were contained in a consent summons filed on 11 May 2022 (“Consent Summons”). The Judge declined to make any orders in respect of X and Y and alerted the parties of the provisions of the Parent and Child Ordinance, Cap 429 (“PCO”) and also the Human Reproductive Technology Ordinance, Cap 561 (“HRTO”). Notwithstanding being alerted, the parties have not applied for nor obtained a parental order under PCO, nor have they commenced any adoption procedures, in respect of X and Y.

6.  After signing the Consent Summons, H had not engaged further in the divorce proceedings and had failed to attend any further hearings in the Family Court. Mr Dykes SC, who was representing W before the Judge, lodged written submissions to the Judge that the lack of a parental order or an adoption order was not an obstacle to the Family Court making appropriate orders in the best interests of X and Y under the Matrimonial Proceedings and Property Ordinance, Cap 192 (“MPPO”) as they were “children of the family” within section 2 of the MPPO.

7.  Due to the Judge’s concern over whether X and Y would be considered “children of the family” and whether she had jurisdiction to make orders over them, she decided to transfer the proceedings up to the Court of First Instance.

8.  Essentially, the issue is whether a child, born to a surrogate mother, can be considered a “child of the family” of the commissioning parents such that custody and maintenance orders can be made in the divorce proceedings commenced by the commissioning parents. This Court directed a preliminary hearing on this issue.

9.  At the preliminary hearing before this Court, Counsel Ms Jennifer A Tse appeared for W, and Counsel Mr Eugene Yim appeared for the OS, representing the children X and Y.

C.  RELEVANT STATUTORY PROVISIONS IN THE MPPO

10.  The starting point is section 19(1) of the MPPO which empowers the court to make orders for custody and education of any child of the family who is under the age of 18 in divorce, nullity or judicial separation (for the purpose of discussion in this judgment, I will refer to these three sets of proceedings collectively as “matrimonial proceedings”)[1], and the court may, if it thinks fit, direct that proper proceedings be taken for making the child a ward of court.

11.  Section 19 (2) of MPPO then provides as follows:

“Where an order in respect of a child is made under this section, the order shall not affect the rights over or with respect to the child of any person, other than a party to the marriage in question, unless the child is the child of one or both of the parties to that marriage and that person was a party to the proceedings on the application for an order under this section.”

12.  The definition of “child of the family” is set out in section 2 of MPPO, and is preceded by the definition of “child”, and those definitions are set out hereunder:

“child (子女), in relation to one or both parties to a marriage, includes an illegitimate or adopted child of that party or, as the case may be, of both parties;

child of the family (家庭子女), in relation to the parties to a marriage, means—

(a) a child of both those parties; and

(b) any other child who has been treated by both those parties as a child of their family;”

D.  STATUTORY INTERPRETATION

D.1  Preliminary observations/comments

13.  My first observation/comment is that the definition of “child” does not in fact set out what categories of children are included in the definition and there is no exhaustive list of children who fall within that definition. It is only qualified by the words “in relation to one or both parties to a marriage”. In fact, the words “in relation to” are used and not simply the word “of ”. Further, as the definition uses the word “includes”, it is clearly not intended to be limited to (i) the illegitimate or adopted child of one party or (ii) the illegitimate or adopted child of both parties, and includes legitimate, non-adopted and any other children of one party, or of both parties to the marriage.

14.  As seen in NF v R [2023] 5 HKLRD 58, a parent of a child can be a legal or a “natural” parent (not necessarily biological) parent of that child and there are at least 3 ways in which a person may become a “natural” parent of a child[2]. Consequently, a child of his/her “natural” parent/s may also fall within the definition of “child” in the matrimonial proceedings of his/her “natural” parents. Further, it seems the definition is wide enough to include a child born out of surrogacy arrangements with the gametes of one or both parties to a marriage.

15.  My second observation/comment is that although the definition of “child” precedes the definition of “child of the family” in section 2 of MPPO, there is nothing in the two definitions, on the face of it, to suggest one is linked to the other, or that a “child of the family” has to fulfil the definition of “child”, or fall within the definition of “child”, before he or she can be treated by both parties as a child of their family.

16.  My third observation/comment is that the word “and” at the end of (a) in the definition of “child of the family” may, subject to the legislative intent, in the context be disjunctive[3].

D.2  Legislative intent

17.  It has been said that the modern approach to statutory interpretation is not to simply look at the natural and ordinary meaning of the term but also the context and purpose of the term[4]. In the interpretation of a statutory provision, it is important to have regard to the legislative intent of that statutory provision.

18.  The MPPO first came into effect on 1 July 1972 and was enacted to provide for ancillary relief and children matters in matrimonial proceedings covered respectively by the previous Parts VI and VII of Matrimonial Causes Ordinance, Cap 179 (I will refer to the version prior to the amendments in MPPO as “Pre-1972 MCO”). The Pre-1972 MCO contained a definition of “relevant child” in section 2 thereof.

19.  The definition of “relevant child” in section 2 of the Pre-1972 MCO was as follows:

“relevant child” means a child who is -

(a) a child of both parties to the marriage in question; or

(b) a child of one party to the marriage who has been accepted as one of the family by the other party.

And in paragraphs (a) and (b) of this definition “child” includes illegitimate child and adopted child; and references to a child of the marriage in section 29, subsection (3) of section 33, subsection (2) of section 34, subsection (2) of section 46 and subsection (2) of section 50 include references to a child adopted by both parties to the marriage.” (emphasis added)

20.  Hence under the Pre-1972 MCO, in order for the court to make orders for custody of and financial provision for a child in matrimonial proceedings, the child had to fall within the definition of “relevant child”. According to Mr Yim, paragraph 1 Second Schedule of s.33 of the MPPO 1972 specifically repealed the definition of “relevant child” as contained in the Pre-1972 MCO.

21.  What is clear is that there was no separate definition of “child” in section 2 of the Pre-1972 MCO. The two separate definitions of “child”, or “child of the family” were introduced for the first time in MPPO in 1972.

22.  Mr Yim has referred the Court to the Official Report of Proceedings, Hong Kong Legislative Council, 24 May 1972 (“May 1972 Official Report”), in which the then Attorney General explained (at p 785) that the MPPO “consolidates and tidies up provisions which are already to be found Parts VI and VII of the [Pre-1972 MCO], though there are some changes of substance [which he would summarise]” when the bill of MPPO was tabled for first and second reading.

23.  As pointed out by Mr Yim, more specifically, the Attorney General said (at p 786) that:

“Clause 8 extends the power to award financial relief for wilful neglect to maintain in that a husband as well as a wife will be able to apply for maintenance in certain circumstances, an order may be made for the benefit of any child of the family, that is to say, not only a child of both spouses but any other child who is treated by them as a child of the family, and security may be ordered for a spouse's life or until re-marriage, not merely for the spouses' joint lives as formerly.” (emphasis added)

24.  It was stated in the Explanatory Memorandum (at p 789):

“Clauses 18 to 20 provide for the protection and custody of children. Clause 18 replaces the present provision in the [Pre-1972 MCO] requiring the court to satisfy itself about the arrangements made for the children of the family before making absolute a decree nisi. Clauses 19 and 20 reproduce in a revised form the existing provisions of that [Pre-1972 MCO] relating to the custody of children. The only change of substance is that the revised provisions will apply to the wider class of children comprised in the definition of "child of the family" in clause 2(1); this includes a child treated by the parties to a marriage as a child of their family.” (emphasis added)

25.  No further remarks in relation to this issue were recorded in the Official Report of Proceedings, Hong Kong Legislative Council, 21 June 1972 [“June 1972 Official Report”], when the Bill was read for the third time.

26.  However, Mr Yim has pointed out that although the Attorney General did not explain further how wide the new definition for “child of the family” was intended to cover, it can be seen that the reference to “a child of one party to the marriage” was expressly removed from the new definition.

27.  In my view, this would clearly support the interpretation under the new definition, a child is no longer required to be a child of at least one party to the marriage in order for him/her to have been “treated” by both parties to be a “child of the family”. Further, any interpretation to require that the child has to be a child of both those parties to the marriage in order for him/her fall within a “child of the family” is clearly an even narrower interpretation than the definition of “relevant child” and clearly does not accord with the then legislative intent for MPPO. In other words, in my view, to accord with the legislative intent, a “child of the family” does not have to be a child of either or both of the parties. I further find support for my view in the authorities set out below.

D.3  The UK statutory provisions

28.  Our definition of “relevant child” in the Pre-1972 MCO was modelled on section 46(2) of the English Matrimonial Causes Act 1965, c 72 (“1965 MCA”). Section 46 of the 1965 Act provided as follows:

“46 Short title, interpretation, commencement and extent

(1) This Act may be cited as the Matrimonial Causes-Act 1965.

(2) In this Act—

“adopted”, except in section 23(2), means adopted in pursuance of an adoption order made under the …; and

“relevant child” means a child who is—

(a) a child of both parties to the marriage in question; or

(b) a child of one party to the marriage who has been accepted as one of the family by the other party, and in paragraphs (a) and (b) of this definition “child” includes illegitimate child and adopted child; and references to a child of the marriage in sections 17, 21(3), 22(2), 34(2) and 41(3) of this Act include references to a child adopted by both parties to the marriage.

(3) …

(4) …”

29.  The Matrimonial Proceedings and Property Act 1970 then came into effect in England & Wales on 29 May 1970 (“1970 MPPA”) upon which our MPPO was largely modelled on.

30.  In section 27(1) of the 1970 MPPA, “child” and “child of the family” are defined as:

“child”, in relation to one or both of the parties to a marriage, includes an illegitimate or adopted child of that party or, as the case may be, of both parties;

“child of the family”, in relation to the parties to a marriage, means—

(a) a child of both of those parties; and

(b) any other child, not being a child who has been boarded-out with those parties by a local authority or voluntary organisation, who has been treated by both of those parties as a child of their family; (emphasis added)

31.  The above definitions were identical to the definitions of the two terms in section 52(1) of the Matrimonial Causes Act 1973 (“1973 MCA”) and later in section 42(4)(a) of the Family Law Act 1986 (“1986 FLA”).

32.  As seen above, apart from (i) the underlined words “not being a child who has been boarded-out with those parties by a local authority or voluntary organization” (“Underlined Words”), the rest of the definition of “child of the family” is the same as our definition in section 2 of MPPO.

33.  The Children Act first came into force in 1989 (“1989 Act”). Section 10 of the 1989 Act empowers the court to make section 8 orders[5] on applications of persons set out under section 10 who are entitled to apply, including in respect of a child a party to a marriage (whether or not subsisting) in relation to whom a child is a child of the family[6]. Section 105(1) of the 1989 Act then defines “child” and “child of the family” as:

“child” means, subject to paragraph 16 of Schedule 1, a person under the age of eighteen;

…

“child of the family”, in relation to the parties to a marriage, means—

(a) a child of both of those parties;

(b) any other child, not being a child who is placed with those parties as foster parents by a local authority or voluntary organisation, who has been treated by both of those parties as a child of their family; (emphasis added)

34.  In the current version of section 105(1)[7] of the 1989 Act, “child of the family” is now defined as follows:

“child of the family”, in relation to parties to a marriage, or to two people who are civil partners of each other, means—

(a) a child of both of them, and

(b) any other child, other than a child placed with them as foster parents by a local authority or voluntary organisation, who has been treated by both of them as a child of their family

35.  It is quite clear the definition of “child of the family” in section 2 of our MPPO has substantially followed those in the 1970 MPPA and the English statues, save for the omission of the Underlined Words (later slightly amended). Quite rightly, Mr Yim accepts that notwithstanding the absence of the Underlined Words, there is no material difference in the Hong Kong and the English definitions of “child of the family” and that whether under Hong Kong or English enactments, the material test for “child of the family” in (b) of the definition is whether the child has been “treated” by both parties as a child of their family.

D.4  The authorities

36.  Both Mr Yim and Ms Tse have referred the Court to English authorities on the interpretation of the term “child of the family”.

37.  In M v M (Child of the Family) (1981) 2 FLR 39, referred to the Court by by Mr Yim, after comparing the new definition of “child of the family” in section 52 of the 1973 MCA and the old definition of “relevant child” in section 46 of the 1965 MCA, Ormrod LJ explained at page 40, at 5^th paragraph of the page:-

“The new definition, therefore, is different in two respects from the old one. The new definition applies to any child, whether or not a child of one of the parties and, instead of the concept of ‘acceptance’ by the spouse who is not the natural parent of the child, we now have to consider the words ‘treated as a child of the family.’ These are obviously material differences.” (emphasis added)

38.  Re A (Child of the Family) [1998] 1 FLR 347, was an authority relied on by Mr Dykes SC before the Judge and now again relied on and cited by Ms Tse on behalf of W. In Re A, the wife petitioned for divorce against the husband, and they had a granddaughter A who had been living with them. The judge found that A was a child of the family within the meaning of section 52 of the 1973 MCA in that the husband and the wife had treated A as a child of their family and cared for all A’s needs. The husband appealed contending that A did not fall within section 52. His appeal was dismissed. Butler-Sloss LJ (as she then was) expressed the following view at page 352:-

“Section 52 of the Matrimonial Causes Act 1973 is capable of applying both to members of the extended family and to those with no natural relationship to the child.” (emphasis added)

39.  In the Decision, the Judge appeared to have formed a preliminary view that Re A could not advance W’s case herein as in Re A, A was treated as the child of the family “for the purpose of financial provision by the husband (the grandfather) only”[8]. However, I agree with Ms Tse that the “child of the family” definition in the 1973 MCA was in no way qualified to mean “for the purposes of financial provision” only.

40.  In any event, Mr Yim has also referred to Re A and has submitted that the better view is that under section 2 of MPPO, a child is NOT required to have any natural relationship with the parties to the marriage in order to be “treated as a child of the family”.

41.  In fact, it seems all along, our Family Court judges have accepted that it is not necessary for a “child of the family” to be a child of either party. Ms Tse has referred to two cases 張 v 郭 unrep, FCMC 1425/2009, 29 July 2014 at paragraph 86, 黃 v 梁 FCMC 11415/2015, 9 May 2017, at paragraph 7, in which the respective Family Court judges had quoted, adopted, and applied the following passage from Rayden & Jackson: Divorce and Family Matters (18^th ed, 2005) Volume 1 at section 10.130:

“Now, to establish that such a child is a child of the family it is sufficient to show that the child was treated by both parties as a child of the family. There must be ‘a family’, and there must be ‘treatment’ as a child of the family…In deciding whether a child has been treated as a child of the family the court should look at the question broadly, avoiding the finer points of analysis…The child must, however, be treated as a child of the family by both parties… It must also be noted that it is not necessary for a child of the family to be a child of either party so that if, as sometimes happens, a young relative of either the husband or the wife lives with the parties and is treated by both of them as one of the family, he or she will be a child of the family for the purposes of the 1973 Act.” [my emphasis]

42.  Having considered the above, it is clear in my view for a child to fall within “child of the family” he/she does not have to be a child of either one or both parties to the marriage.

D.5  Section 19(2) of MPPO

43.  Lastly, Mr Yim has drawn my attention to section 19(2) of MPPO, and pointed out that one possible interpretation of the above section 19(2) is that no order should be made by the court under section 19(1) if the same affects the rights of a third party (other than the parties to the marriage) over or with respect of the child unless the exceptions are satisfied.

44.  In my view, the plain meaning of the words is that any order made by the court under section 19(1) would not affect the rights of a person over a child unless (i) that person is a party to the marriage in question and (ii) the child is the child of one or both parties to the marriage and (iii) that person was a party to the proceedings. This does not however mean that the court has no power or jurisdiction to make any orders over the child who is a “child of the family” in the matrimonial proceedings, and in fact in my view support the interpretation of the term set out below.

E.  CONCLUSION

45.  Having regard to all the above including the wordings of the statutes, the discussions in the English case law on the equivalent provisions, and the legislative history and the statutory provisions of MPPO, it is quite clear that under the definition of “child of the family” in section 2 of MPPO, a child (or minor) is not required to have any natural relationship with the parties to the marriage in order to be “treated as a child of the family”. Thus, a child born under surrogacy arrangements can be considered as a “child of the family” of the commissioning parents. There is no need for any adoption order, or a parental order, or sanction of the surrogacy arrangement to be obtained in order for a child to fall within the definition of “child of the family”. In light of such views, I do not need to consider those other submissions made by both Counsel in relation to PCO or HRTO or on alternative relief.

46.  To conclude, in my view, there is jurisdiction for the court, whether the District Court (Family Court) or the Court of First Instance, to make relevant orders under section 19(1) of MPPO for a child who is born out of surrogacy arrangements undertaken by the commissioning parents provided that such child has been treated by the commissioning parents as a child of their family.

47.  Having dealt with the preliminary issue, I see no reason why these proceedings should remain in the High Court. I direct that the proceedings be re-transferred to the Family Court forthwith, and that the Consent Summons be dealt with on paper by a new judge/master assigned by the Principal Family Court Judge. I make no order as to costs.

48.  Lastly, I would like to thank Ms Tse, Mr Yim and the Official Solicitor for their assistance to the Court.