Z v Y [2023] 3 HKC 1, [2022] HKCFI 3695

Alison Choy represented the applicant in Z v Y [2023] 3 HKC 1, [2022] HKCFI 3695.

The applicant, a minor, sought a declaration that the respondent, who was named as the applicant’s father on his birth certificate, was not his father. An originating summons issued in the Family Court was dismissed because the Family Court held that it did not have jurisdiction to make a declaration of non-parentage, though the order stated that it was satisfied on the evidence that the respondent was in fact not the applicant’s father. There was no appeal from the order of the Family Court. Instead, the present originating summons was issued in the Court of First Instance. The respondent did not contest the application. The Secretary for Justice intervened in the application and raised the questions of whether the Court of First Instance had jurisdiction to make such a declaration, under s 6 of the Parent and Child Ordinance (Cap 429), the inherent jurisdiction as parens patriae, or O 15 r 16 of the Rules of the High Court (Cap 4A); and whether the applicant was estopped from reopening the jurisdictional issue.

Held, granting the declaration of non-parentage:

• (1) There was no power for the Court of First Instance to grant a declaration of non-parentage under s 6 of the Parent and Child Ordinance (Cap 429). Also, there had been a legal finding by the Family Court that s 6(1)(a) of the Parent and Child Ordinance only empowered the court to make a declaration of parentage and not a declaration of non-parentage. There had not been any appeal against that from the Family Court. It was not for the Court of First Instance now to re-open the issue or to allow re-litigation on the issue (paras 42-48).
• (2) Although no authorities had been drawn to the Court’s attention that the inherent jurisdiction was invoked for granting a declaration of parentage or non-parentage, this should not preclude the Court from exercising inherent jurisdiction to grant such a declaration in suitable cases. There was a gap in the existing statutory scheme in Hong Kong, ie in the present provisions of the Parent and Child Ordinance (Cap 429). There was no conscious decision of the legislators not to grant the Court the power to make non-parentage declarations. The Court could turn to its inherent jurisdiction to fill the gap. Tameside Metropolitan Borough Council v AM [2021] EWHC 2472 (Fam) applied. Pagtama Victorina Alegre v Director of Immigration [2016] HKCU 83, (HCAL 13/2014, Au J, 12 January 2016, unreported) and Comilang Milagros Tecson v Director of Immigration [2018] 5 HKC 459 ; [2018] 2 HKLRD 534 ; [2018] HKCA 175 distinguished (paras 49-77).
• (3) A declaration of non-parentage could be the subject matter of a declaration under O 15 r 16 of the Rules of the High Court (Cap 4A). T v Child Support Agency [1998] 1 WLR 144 and Re S (Hospital Patient: Court’s Jurisdiction) [1995] 3 WLR 78 ; [1996] Fam 1 considered. In re JS (a Minor) [1981] Fam 22 distinguished (paras 78-88).
• (4) The two presumptions in s 5(1)(a) and (b) of the Parent and Child Ordinance had been rebutted. It was clear that as the applicant was still a minor, this Court had to have regard of his best interests as paramount consideration. The declaration was of use to the applicant and this would be in his best interests (paras 35-41, 89-95).

[The above is excerpted from the headnote to the report in HKC.]