CD v TKH [2021] 4 HKC 51, [2021] HKFC 46
Alison Choy, representing the 1st applicant, and Eric Leung, representing the 2nd applicant, appeared in CD v TKH [2021] 4 HKC 51, [2021] HKFC 46.
The 1st applicant (the ‘mother’), a Mainland resident, had an intimate relationship with the 2nd respondent, T, a Hong Kong resident who was married at the time. The 1st applicant had a child, the 2nd applicant (the ‘child’). Although T did not dispute that he had an intimate relationship with the 1st applicant, it was his understanding that when the 1st applicant became pregnant that she would be solely responsible for the child. When the child was born, T suggested that the 1st respondent entered his name on the Register of Births as the father. T never denied or admitted that he was the father of the child. T claimed that he may not be the only man the mother had a relationship with. The mother applied for a parental declaration that T was the child’s father and for a direction that a DNA test be carried out to determine whether T was the child’s father under s 13 of the (hk) Parent and Child Ordinance (Cap 429). T applied for dismissal of the application and alternatively, for a stay of proceedings on grounds of forum non conveniens.
Held, dismissing T’s summons and ordering T to attend DNA testing, that:Jurisdiction on Declaration of Parentage
(1) The phrase ‘substantial connection’ should be given its ordinary meaning. It was sufficient to demonstrate ‘a’ substantial connection with Hong Kong but not necessarily the only substantial connection or the most substantial connection. The connection must be real and of sufficient significance and not temporary or transitory. Whether or not the connection was of sufficient substance, significance and worth, was to have regard to the facts of the case and coming to a broad conclusion based on those facts, and that an artificially constructed connection would not be a substantial one, as it would not be the Legislature’s intention to create a convenient off-shore divorce jurisdiction. S v S [2006] 3 HKLRD 751 ; [2006] HKFLR 460; B v A [2007] 4 HKC 610 ; [2008] 1 HKLRD 43; and ZC v CN [2014] 5 HKLRD 43 ; [2014] HKFLR 469 followed (paras 34-36).
Jurisdiction regarding mother’s claim for custody
(2) Section 3(1)(c) of the (hk) Guardianship of Minors Ordinance (Cap 13) prima facie vested in a mother sole custody of children born out of wedlock, unless and until the Court made an order under s 3(1)(c)(ii) and (d). The Court had not made any such order in the present case. Hence the mother already had sole custody of the child. There was no evidence why, if the mother and child continued to live in the Mainland, that she would require a Hong Kong Court custody order for the child. Such an order was not recognized, nor could it be enforced in the Mainland at this point of time. Her application was therefore otiose. It was also clear that from the time of birth of the child and over a period of the past 10 years, the mother’s custody care and control of the child had never been challenged. As T was not even admitting he was the father of the child to-date, he clearly should not be taking issue with this custody application. Although habitual residence was, as a general principle, the relevant test for a case regarding the custody application for a child; it was not the conclusive test. YJH v LKHM [2019] HKFLR 418 followed (paras 53-55, 60).
Jurisdiction regarding Mother’s maintenance claim for the Child
(3) There was no dispute that this Court had jurisdiction over the mother’s application for maintenance for the child. She was the custodial parent by virtue of s 3(1)(c) of the Guardianship of Minors Ordinance. QMY v GSS [2017] 4 HKC 521 ; (2017) 20 HKCFAR 303 applied (para 64).
Forum Non Conveniens
(4) The burden of proof was on T to satisfy that Hong Kong was not the appropriate forum, namely the forum which had the most real and substantial connection with the trial of the action. The authorities required determination on whether T had discharged his burden to prove that the Nanshan Court in the Mainland was a clearly and distinctly more appropriate forum than Hong Kong. Even if T had discharged this burden, in considering the welfare of the child, the mother would have suffered a distinct disadvantage in her maintenance application if the proceedings were to take place in the Mainland, and this would adversely affect the financial support the child was entitled to if T was found to be his father. YJH v LKHM [2019] HKFLR 418applied (paras 78, 101-103).
Jurisdiction regarding the taking of DNA test
(5) As Hong Kong was the forum for the trial of the maintenance issue, it followed that pursuant to s 13 of the (hk) Parent and Child Ordinance (Cap 429), there was a civil proceeding in which the parentage of the child fell to be determined, as it must first be determined if T was the father before the maintenance application could proceed. T had conceded that if the Court decided in favour of the mother on jurisdiction/ forum, he did not dispute that ordering a DNA test serves the child’s best interest (paras 104, 105).
Custody
(6) All issues concerning the child should be decided by the Court of one jurisdiction rather than have different issues being decided by courts in two different jurisdictions. It therefore followed that the Hong Kong Court should have jurisdiction to consider the issue of custody despite the fact that the child’s habitual residence was in Mainland China (para 107).
[The above is excerpted from the headnote to the report in HKC.]
