RE Section 12 of the Parent and Child Ordinance (Cap 429)

FCMP 60 / 2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NO. 60 of 2014

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RULING
(Transfer)

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Introduction

1. Before this court is an ex parte application on the part of a married couple for a parental order pursuant to section 12 of the Parent and Child Ordinance, Cap 429 (“the Ordinance”). 

Background

2. The two applicants are married couple.  Both are local Chinese.  The husband is now XX years old and the wife aged XX.  They started co-habitation in 2006 and got married in Hong Kong on XXX, 2014.  Unfortunately, for some medical reasons, they were not able to have their child naturally.  After having various treatments but in vain, they arranged a surrogate in California of the United States to give birth to a child D for them by using the husband’s sperm and the wife’s egg. For this purpose, a commercial Surrogacy Agreement was entered on 18 August, 2012 between them and the surrogate couple (“the Surrogacy Agreement”). The relevant medical procedure was performed in California and as a consequence, D was born on XXXXXXX, 2013.  Before her birth, the necessary legal procedure was put in place by having a Pre-Birth Order (“the Pre-Birth Order”) obtained from the Superior Court of the State of California.  Under the Pre-Birth Order, the applicants were declared to be the legal parents of D.  After her birth, D was issued a birth certificate with the applicants registered as her father and mother.  The applicants have since brought D back to Hong Kong for good.  In order to apply for residency for D, they have to regularize their legal relationship with the daughter, hence the present application.

3. By their Ex parte Originating Summons, which was amended on the callover hearing of 30 September, 2014, they ask for:-

1.	An order under section 12 of the Ordinance be granted to them providing for D to be regarded in law as their child;
2.	A declaration be granted to approve that the payments made by the applicants pursuant to and in connection with the Surrogacy Agreement are “expenses reasonably incurred” or otherwise expenses “authorized or subsequently approved by the court” as referred to in section 12(7) of the Ordinance;
3.	Alternative to paragraph 1 above, a declaration be granted to approve that D is the lawful child of the applicants by virtue of section 17 of the Adoption Ordinance, Cap 290.

4. This case has the following unusual features.

5. First, as Mr Chan, senior counsel for the applicants, has pointed out, this case is the first of its kind in Hong Kong.

6. Secondly, at the time of birth of D on XXXX, 2013, the applicants were not married yet.  They only married subsequently on XXXXX, 2014.  Thus, it is questionable whether they are “parties to a marriage” so as to qualify them to make an application under the said section 12.

7. Thirdly, the Surrogacy Agreement in question is a commercial agreement.  Hence, prima facie, it is in contravention of section 17 of the Human Reproductive Technology Ordinance, Cap 561 which prohibits against surrogacy arrangement on commercial basis.  There is an issue as to whether the applicants have committed the relevant offences:  see section 39(1) of the Human Reproductive Technology Ordinance, Cap 561.  Mr Chan informed the court that similar cases had come before the English High Court.  Such cases should be of much assistance to the courts of Hong Kong in dealing with similar issues.

8. An Assessment Report has been obtained from the Director of Social Welfare since the 1^st callover hearing pursuant to Order 90, rule 6 of the Rules of the District Court, Cap 336H.  In the interim, I considered that it might be necessary to have the application transferred to the Court of the First Instance and I invited the applicants to lodge their submissions in this respect.

9. Despite the neutral stance taken by the applicants on the issue of transfer, in accordance with the best tradition of the Bar, Mr Chan has helpfully rendered his assistance to the court by referring to the relevant legal principles and the arguments on both sides in relation to transfer.  I am grateful for his assistance.

The Legal Principles

10. The starting point is that the Family Court has both the power to hear the application and the power to transfer the matter to the High Court.

11. Section 12(1) of the Ordinance stipulates that the court may make an order providing for a child to be regarded in law as the child of the parties to a marriage, and "the court" is defined in section 2 to mean "the High Court or the District Court".

12. At the same time, section 16 of the Ordinance expressly provides that where an application under section 12 is made to the District Court, the District Court may, if it considers that the case is one which for any reason ought to be dealt with by the High Court, transfer the matter to the High Court.

13. Although the Matrimonial Causes Rules, Cap 179A ("MCR") govern only proceedings issued under the Matrimonial Causes Ordinance, Cap 179 ("MCO"), I agree with Mr Chan that the relevant provision, being Rule 32(1) of the MCR, provides helpful guidance which the court might find applicable to the present proceedings.  The said Rule 32(1) provides that the District Court "may order that a cause or application pending in the District Court be transferred to the Court of First Instance, where having regard to all the circumstances including the difficulty or importance of the cause or application or of any issue arising therein, the court thinks it desirable that the cause or application should be heard and determined in the Court of First Instance” (emphasis added)

14. PD 15.14 relates to the transfers of proceedings from the Family Court to the Court of First Instance. It refers to, inter alia, Rule 32(1) of the MCR set out above and incorporates the principle enshrined in the rule.

15. Two of the Hong Kong cases cited in PD I5.14, namely B v B (FCMC 3105/1999, unreported, 11 July 2000) and H v H (FCMC 7173/2000, unreported, 1 February 2002), although related to financial relief in divorce proceedings, have set out useful guiding principles.

16. In B v B, the court applied the following principles set out in Jack v Jack and Anor (DJ No 3782 of 1995) as reasons justifying transfer:-

"where there is a matter of public interest; where there are novel or difficult points of law to be resolved; where delay will work a clear injustice and/or where there is unduly complicated or conflicting evidence the resolution of which is likely to be so protracted that it will unduly prejudice the Family Court lists and this work against the interests of other litigants",

17. In H v H, the court commented at para 47 that the effect of having a separate Family Court was "to build [up] a pool of judges who are very experienced in this particular field". It also made the following comments in relation to financial relief hearings at paras 48 and 49:-

"48. There is no equivalent "Family Division" in the Court of First Instance of the High Court. Ancillary relief cases rarely go to the High Court and when they do there is no assurance that the judge who tries the case will have any special expertise in the field. In most cases however, fortunately, trials are able to be allocated to a judge who has been promoted to the High Court from the District Court and who has gained experience in the Family Court.

49. In these circumstances there must be cogent reasons why a case should be removed from the ambit of a group of specialist judges. It is right that R 80 requires the court to take into account the financial limits for the time being relating to the jurisdiction of the District Court in other matters, but that is only one consideration. Very large sums of money alone will rarely be sufficient to justify transfer. There must be some special complexity in the case which will demand that it be given the attention of a Judge of the Court of First instance." (Emphasis added)

The Issues Involved

18. Mr Chan submitted that 3 legal issues are involved in this case. 

19. The first is that given the parties were unmarried at the time of birth of D, there is an issue of whether or not the applicants are “parties to a marriage” so as to qualify them to make an application under the said section 12.  Mr Chan submitted that this is merely a matter of statutory interpretation and should not be a complex issue that warrants a transfer. 

20. I agree.

21. The second issue is the whether the Pre-Birth Order granted by the Superior Court of the State of California is an adoption order for the purpose of section 17 of the Adoption Ordinance, Cap 290.  The relevant part of the said section 17 read as follows:-

(1)  Where a person has been adopted, whether before or after the coming into operation of this section, in any place outside Hong Kong according to the law of that place, and the adoption is one to which this section applies, then for the purposes of this Ordinance and all other Hong Kong enactments, the adoption shall have the same effect as an adoption order validly made in accordance with the provisions of this Ordinance, and shall have no other effect.

(2)  Subsection (1) shall apply to an adoption in any place outside Hong Kong (other than a Convention adoption), if-

(a)  the adoption is legally valid according to the law of that place; and

(b)  in consequence of the adoption, the adoptive parents or any adoptive parent had, or, if the adopted person had been a young child, would have had, immediately following the adoption, according to the law of that place, a right superior to that of any birth parent of the adopted person in respect of the custody of the person; and

(c)  either-

(i)  the adoption order was made by an order of any Court whatsoever of a Commonwealth country or of the United States of America or of any State or territory of the United States of America; or

(ii)  in consequence of the adoption, the adoptive parents or any adoptive parent had immediately following the adoption, according to the law of that place, a right superior to or equal with that of any birth parent in respect of any property of the adopted person which was capable of passing to the parents or any parent of the person in the event of the person dying intestate without other next of kin and domiciled in the place where the adoption was made and a national of the State which had jurisdiction in respect of that place

but not otherwise.

22. Provided that the requirements under section 17 are satisfied, an adoption outside Hong Kong is recognized.  Mr Chan submitted that the Pre-Birth Order extinguishes all the rights of the surrogate parents. He argued that the Pre-Birth Order should be regarded as an adoption order for the purpose of the provision.  He accepted that the Pre-Birth Order is not an adoption order as such but this is the only order available in the State of California according to the law there.  The provision, when drafted, did not envisage human reproduction.  At the end of the day, it is a matter of statutory interpretation and it is not a complex issue that merits transfer. 

23. Again, I agree.

24. The third issue concerns the sanction by the court of the payments paid pursuant to the Surrogacy Agreement.  Mr Chan submitted this involves the resolution of two conflicting legal provisions:  section 17 of the Human Reproductive Technology Ordinance, Cap 561 and section 12(7) of the Ordinance.  While the said section 17 prohibits against surrogacy arrangement on commercial basis, section 12(7) allows expenses reasonably incurred or otherwise “authorized or subsequently approved by the court”.

25. The English position in this regard is canvassed in In Re X and Anor (Children) (Parental Order: Foreign Surrogacy) [2009] 2 WLR 1274, where the English High Court made the following remark at para 28:-

"28. These cases are required to begin in the family proceedings court. Domestic surrogacy applications frequently pose no problems and can be dealt with there (especially where, as at Inner London Family Proceedings Court, there is current experience and expertise) or in the county court. However, overseas surrogacy agreements potentially raise much more difficult issues and will often merit transfer to a county court perhaps even to the relevant international adoption centre. Where there is a commercial element to the surrogacy, it will usually require careful consideration as to why it should not be transferred to the High Court. Certainly any case which involves a significant conflict of private international law or which may require authorisation to be given under section 30(7) of the 1990 Act should in my view be so transferred." (Emphasis added)

26. Section 30(7) of the Human Fertilization and Embryology Act 1990 mentioned above, or currently s 54(8) of the Human Fertilization and Embryology Act 2008, is the equivalent of s 12(7) of the Ordinance.  Thus, in England and Wales, where a case involves overseas surrogacy agreements, or where there is a commercial element to the surrogacy, or where the court has to declare the reasonableness of any expense or payment involved in the surrogacy, or where there is a significant conflict of private international law, the case would unlikely stay at the family proceedings court in England, but would more likely be transferred to a higher court. It should however be noted that the above judgment is not binding on Hong Kong courts.

27. Mr Chan also referred me to the English case of J v G [2013] EWHC 1432 (Fam) where save that the couple in question was a same sex couple, the facts of that case fall on four squares with the present one.  He argued that with the guidance of the English authorities, the legal issues may not be as complex as it seemed.

28. That said, Mr Chan accepted that the novelty of issues and special complexity in the case, which are arguably exhibited in the present proceedings, are reasons for transfer. As mentioned, this case is the first of its kind before the Hong Kong courts. Considering that there is a lack of an authoritative judgment in Hong Kong in relation to surrogacy arrangements and that there may be more similar cases to come in the future, the Family Court may find this case appropriate to be transferred to the High Court.

29. Secondly, one of the issues in this case is whether the payments made by the applicants pursuant to and in connection with the said Surrogacy Agreement are "expenses reasonably incurred" or otherwise expenses "authorized or subsequently approved by the court" as referred to in section 12(7) of the Ordinance.  In this regard, there is a conflict between Hong Kong law and the law of California, where the surrogacy was carried out.  While the English courts have resolved similar issues, this will be the first time the Hong Kong court is asked to address this issue.

30. Mr Chan submitted that against these considerations would be the delay arising from the transfer and the expertise of the Family Court.  He submitted that it is expected that the merits of the application would soon be addressed, the hearing of which would unlikely take long and hence the District Court listing is unlikely to be affected.  On the other hand, if the matter is transferred to the High Court which will seize of the matter afresh, it would inevitably cause some delay in the resolution of this application.  In this regard, the listing of the High Court normally takes longer than that at the Family Court. The delay is of particular significance when a minor is involved.  D will soon reach the age of schooling and it would be most undesirable and would not be in her best interest that her status remains unresolved.  He highlighted that her application before the Immigration Department for permission to stay in Hong Kong as a dependant or otherwise pending resolution of her application has remained undecided, and D has to leave Hong Kong every three months when her visitor visa expires.  Her visitor visa status is also having an adverse impact on her education.  She is unable to enroll in any pre­school nursery with a visitor visa, and the deadline for enrolment for what the Applicants would consider as good pre-school nursery is generally around the end of September 2014 with some going to October 2014. This unfortunate and undesirable state of affairs will be prolonged if there is further delay in resolving this application.

31. Unlike the English situation where there is no specialized Family Court at the local level and hence transfer to the higher court is desirable when overseas surrogacy is involved, there is a specialized Family Court in Hong Kong with abundance of expertise in family matters. In contrast, there is no specialized Family Division in the High Court. As the Court in H v H, supra,observed, there must be cogent reasons before a matter is taken out of the hands of a pool of specialist judges.

32. Mr Chan submitted that in considering whether to transfer the application to the High Court, the court would have to balance the above factors, notably the novelty of the issues versus the adverse consequences on the development of D, the disruption to her normal life, and her difficulty in pursuing education in Hong Kong as a result of delay.  At this stage, the education of D is the primary concern of the applicants. Therefore, while the applicants consider both the Family Court and the High Court are appropriate venues to hear the application and would be pleased to leave the matter in the court's hand, in view of the imminent education problem of daughter, the applicants would prefer to have the application remained at the Family Court.

Discussions

33. I agree with Mr Chan that this is a balancing exercise.  I do bear in mind the education need of D but given that she is now merely one year old, I believe the adverse impact on her arising from some delay occasioned by the transfer should be minimal.  The Assessment Report from the Director of Social Welfare has been obtained, the merits of the application should be ready to be heard.  Mr Chan estimated that at most only one day is required.  The English authorities would certainly provide useful guidance and even persuasive authorities, but the socio-economic situation in Hong Kong is quite different from that in England & Wales. The Hong Kong courts may have different public policy considerations when it comes to a sensitive issue such as this.  Since the present application is the first of its kind in Hong Kong, and given the novelty of the issues involved, in my view, the balance is tipped in favour of transfer. 

34. I agree that D’s predicament needs to be addressed. 

35. Mr Chan agreed that the court does not have the power to make an order that D not be removed out of the jurisdiction as it is entirely within the ambit of the Director of Immigration.  What the court can do is to invite the Director of Immigration not to remove D out of the jurisdiction until the final resolution of this application.  I consider it is appropriate to do so.  I also hope that the application may be listed to be heard as soon as possible.  Mr Chan also asked for an order that subject to the consent of the Director of Social Welfare, the Assessment Report may be disclosed to the Director of Immigration.  I accept that the report may be of assistance to the Director of Immigration in his consideration of D’s residency. 

Orders

36. For the above reasons, I give an order that:-

(1)  The proceedings be transferred to the Court of First Instance of the High Court pursuant to section 16 of the Parent and Child Ordinance, Cap 429;

(2)  The Director of Immigration is invited not to remove the child out of the jurisdiction until the final resolution of the application;

(3)  Subject to the consent of the Director of Social Welfare, the Assessment Report may be disclosed to the Director of Immigration;

(4)  The applicants are to lodge the First Directions Hearing Bundle within the time stipulated in paragraph 15 of PD 15.14.  The First Directions Hearing Bundle shall contain the Amended Originating Summons, the Supporting Affirmations, the relevant orders, the Ruling on Transfer, a succinct chronology of events, a list of issues, the proposed directions and the estimate length of the trial; and

(5)  Costs of the present proceedings be reserved and to be determined by the Court of First Instance.

37. Lastly, I thank Mr Chan for his assistance.

Representation