Recognition of paternity in Hong Kong: Parentage 1 of 2

06Mar2020

Under Hong Kong family law, a man is presumed to be the biological father of a child if he is married to the woman who gave birth to the child. As this circumstance accounts only for some of the circumstances of the birth of a child, particularly in light of the ongoing development of human reproductive technologies the law provides a number of avenues by which a father can be recognised as or proven to be the father of a child.

The determination and recognition of paternity of a child is important for many reasons. This includes first and foremost that a child’s welfare generally dictates that they know who their parents are. Article 7 of the United Nations Convention on the Rights of the Child states that, where possible, a child has the right to know and be cared for his or her parents. This sentiment has been mirrored widely by the Hong Kong courts in cases concerning parentage as seen recently in the case of CH, suing by C K Y N, his mother and next friend and W K Y P [2019] HKFC 79 expanded on below.

Knowledge of a child’s paternity also carries certain significant legal implications, including those relating to inheritance law and the ability for an order for child maintenance to be made for their benefit.

Self-declaration of paternity

When a child is born the mother and father of the child, whether they are married or not, can attend the Births Registry of the district in which the child was born. If the child is born within a marriage, either parent can attend to register the birth. However, if a child is born to unmarried parents, both must attend the Births Registry together or the parent attending must produce both their own declaration and the other parent’s declaration confirming the child’s paternity.

Application to the court for a declaration of parentage

If a child is born to a mother whose previous sexual partner she believes to be the father denies paternity, an application can be made to the court on behalf of the child for a declaration that he is the child’s father.

Such applications require detailed evidence to be produced by the mother on the circumstances of the relationship with the man she claims to be the father of the child. The nature and detail of the evidence to be produced is heavily fact-specific, but will usually include detail of the relationship before, at the time of, and after conception of the child.

The Parent and Child Ordinance (Cap. 494) gives the courts broad discretion to make orders for scientific tests and the taking and use of bodily fluids to determine the paternity of a child. In the circumstances that the relevant person refuses to submit to such testing, adverse inferences may be drawn by the court.

Orders for scientific testing to determine parentage

A recent example of the Hong Kong Family Court’s handling of scientific tests in respect of an application for a declaration of parentage is CH, suing by C K Y N, his mother and next friend and W K Y P [2019] HKFC 79. The facts of this case are interesting. The mother and the putative father of the child had been in a long term sexual relationship while the putative father remained living with his wife. The mother fell pregnant, and the putative father denied paternity. The mother took a drinking straw the putative father had used at her home and sent for a DNA test which confirmed that he was the natural father of the child.

When the putative father continued to deny paternity, the mother made applications for (1) scientific testing to prove the putative father’s paternity (2) a declaration of parentage and (3) maintenance for the child. The mother gave evidence among other things that the putative father was her only sexual partner before, at the time of, and after the child’s conception.

Despite challenges by the father in respect of the accuracy of the DNA test and his ability to father a child and his assertion that his right to privacy had been engaged, the court held that a child’s welfare dictates that they know their parentage and that the weight of the evidence allowed the court to land firmly on the side of the child’s interest over the father’s. An order was made that scientific tests be used to determine whether the putative father was the natural father of the child.

Conclusion

If you require advice on applications for declaration of paternity, scientific testing, and/or applications for child maintenance, please contact Joanne Brown on +852 2573 5000.

Elizabeth Seymour-Jones

If you would like to discuss any of the matters raised in this article, please contact:

Joanne Brown
Partner | E-mail

Mark Side
Partner | E-mail

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.