WS (A MINOR) SUING BY HIS MOTHER AND NEXT FRIEND LY v. WS AND ANOTHER

FCMP 80 / 2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 80 OF 2016

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RULING
(Jurisdiction: Substantial Connection)

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Introduction

1. The applicant, a 4-year old boy, applies by her mother (“the mother”) and next friend for a declaration that the 1^st respondent (“R1”) was his natural father and in law his parent pursuant to section 6(1) of the Parent and Child Ordinance (Cap 429) (“the Ordinance”).

2. This is a determination on whether the court has jurisdiction to deal with the application on the basis that the applicant has a substantial connection with Hong Kong as at the date of application (ie on 15 April 2016) under section 6(2)(c) of the Ordinance.  As the factual matrix is not complicated, I decided to deal with it in the call-over hearing.  Below is my ruling.

Background

3. The brief background to this application is as follows.

4. The applicant was born in Hong Kong in March 2012.  At that time, his mother was married to the 2^nd respondent (“R2”) but his case is that his father is in fact R1 who previously married to the mother.  For reason that I do not need to deal with at this juncture, R2 was named as his father on his birth certificate issued by the Hong Kong Registrar of Births.  The applicant now wants to rectify the mistake.

5. The peculiar facts of this case are that all the relevant parties, namely, the applicant, the mother and the 2 respondents are living in the Mainland.  The applicant is now living in Shenzhen and has been attending kindergarten in Sheung Shui of the New Territories since September 2015.  Apart from the applicant who has the right of abode in Hong Kong by virtue of his birth in the territory, all the other parties have no right to reside in Hong Kong.  Both R1 and R2 do not contest the application.  As a matter of fact, the evidence shows that the mother and the two respondents were at all times aware of the “mistake”.  It is also rather intrigued to note that R1 and R2 are closely related in that they are brothers. 

The Intervention by the Secretary of Justice

6. In the call-over hearing of 23 May 2016 I directed that, pursuant to section 7(1) of the Ordinance, all the necessary papers in the matter be sent to the Secretary for Justice (“the SJ”).  The SJ decided to intervene as a result of which submissions were made and Ms Shum on behalf of the SJ appeared in the hearing of 18 October 2016.

The SJ’s Stance

7. Ms Shum made herself clear in the hearing that the SJ is not opposing the main application.  The SJ takes a neutral stance on its outcome.

8. Further, the SJ is not putting forward a positive assertion that the applicant does not have a substantial connection with Hong Kong.  Ms Shum submitted that the SJ would like to assist the court by drawing its attention to another similar case being WSJ (minor) v WZC and WCJ (unreported, FCMP 176/2015, 12 January 2016).  The facts in that case are similar to the one before me where the minor was born in Hong Kong but all the parties, being PRC nationals, were residing in the Mainland.  The only difference is that the child in that case has never come, lived or stayed in Hong Kong since birth.  Whilst the learned judge in that case, after having dismissed the application on jurisdictional ground and found that the applicant did not have any reasonable prospect of success on the grounds advanced by his counsel for leave to appeal, nevertheless, the learned judge granted leave on the ground that there is some other reason in the interest of justice that the appeal should be heard pursuant to section 63A(2)(b) of the District Court Ordinance (Cap 336).  The learned judge considered that while the case law on substantial connection from superior courts in the context of matrimonial proceedings between husband and wife has been building up recently (eg ZC v CN (Divorce: jurisdiction) [2014] 5 HKLRD 43; LCYP v JEK (Children: Habitual Residence) [2015] 4 HKLRD 798), there is no case law on this issue in the context of children’s matter, in particularly the Ordinance.  Some general guidance from the Court of Appeal on this issue would be beneficial to judges in the Family Court: see § 34.  The judge therefore granted leave to appeal on whether in determining if an applicant has a substantial connection with Hong Kong for the purpose of the Ordinance, the criteria and/or standard for satisfying the requirement of “substantial” is the same as that in divorce cases: see § 35.

9. Ms Shum informed the court that the appeal of WSJ (minor) v WZC and WCJ has not been fixed to be heard and as such, when the judgment would be released is yet unknown.  That said, Ms Shum clarified that the SJ is not seeking an adjournment of the present case so that this court may wait for some guidance from the Court of Appeal.  Instead, the SJ took a neutral stance on this but reminded the court that there appeared to have no urgency on the matter.

The Applicant’s Submissions

10. In response, Ms Chau, for the applicant, took the point that when the Court of Appeal judgment would be released is yet unknown and in this case, the welfare of a little child is in issue.  Further, the applicant has had regular physical presence in Hong Kong since September 2015.

Discussion

11. Understandably there are not too many Ms Chau could say regarding the applicant’s “connection” with Hong Kong.  The only fact she can rely on is that the boy was born in Hong Kong and because of this, he is a Hong Kong permanent resident.  The other fact is that he has been attending school in Hong Kong.  Thus, he has to cross the border on each and every school day for this purpose and this has been lasting for more than a year or for nearly 8 months if counting up to the date of application.  Ms Shum accepted that this is a relevant fact that the court should also take into consideration.  The question is whether these facts are sufficient to support a claim of substantial connection with Hong Kong.

12. On the evidence before me, the applicant no doubt has a connection with Hong Kong by virtue of his status being a Hong Kong permanent resident.  The next question is whether this connection is of sufficient substance.  An artificially construed connection is not a substantial connection.  A connection must be real in the sense, for example, that it has not been engineered for temporary tactical advantage:  B v A [2008] 1 HKLRD 43, at §§ 23 – 25.  I  accept that unlike the applicant in WSJ (minor) v WZC and WCJ, supra, the applicant has been able to show his physical presence in Hong Kong and such presence is regular and not of transitory nature (see: ZC v CN [2014] 5 HKLRD 43 at § 9.4).  The applicant is merely a 4-year old child.  It is safe to assume that he is dependant entirely on his parents as regards his day-to-day care.  On the facts of this case, I cannot see what more he could have done in order to establish a closer connection with Hong Kong if his carers have no right to reside in Hong Kong.

13. I am fully aware of the principles enunciated in the authorities referred to above but these authorities are in respect of matrimonial proceedings.  The undisputed evidence is that the applicant needs to have his birth record rectified so that he may apply for the necessary in-and-out permits specifically for students living in the Mainland but who have to attend schools in Hong Kong on a daily basis.  His application is therefore not one without any urgency.  I consider his welfare should carry weight.  In the absence of an application for adjournment pending the outcome of the Court of Appeal judgment and given when the judgment would be released is still unknown, I decide that I should not wait for the judgment.

Ruling

14. For the reasons aforesaid, I am satisfied that the applicant has a substantial connection with Hong Kong.  This gives the court the necessary jurisdiction to deal with his application.

Costs

15. Ms Shum does not seek any costs; so I consider that the appropriate order in respect of this determination would be no order as to costs and I so order.

Further Directions

16. The applicant’s originating summons is fixed to be heard on 22 November 2016 at 9:30 am at Court 9 (with 15 minutes reserved) for further consideration.  The Secretary for Justice do notify the court whether he intends to appear in the next hearing.