HCMC3/2023 HC formerly known as HWH v. WYH - LawHero
HCMC3/2023
高等法院（婚姻訴訟）B Chu J29/4/2024[2024] HKCFI 1157
HCMC3/2023
A A
B B
HCMC 3/2023
C
[2024] HKCFI 1157 C
D IN THE HIGH COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
COURT OF FIRST INSTANCE
F MATRIMONIAL CAUSES NO 3 OF 2023 F
_______________________
G G
H H
BETWEEN
I HC formerly known as HWH Petitioner I
and
J J
WYH Respondent
K K
______________________
L L
M M
Before: Hon B Chu J in Chambers (Not Open to Public)
N Date of Hearing: 20 March 2024 N
Date of Judgment: 30 April 2024
O O
P P
_________________
Q Q
JUDGMENT
R
_________________ R
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A A
B B
A. INTRODUCTION
C C
1. This is the hearing of a preliminary issue as to whether the court
D D
has jurisdiction in matrimonial proceedings to make custody and
E
maintenance orders for two children whom I shall refer to as X and Y, who E
were born in 2018 by different surrogate mothers pursuant to commercial
F F
surrogacy arrangements.
G G
2. By a decision handed down on 28 July 2023, these proceedings
H
were transferred to this Court by Family Court Judge Grace Chan (“Judge”) H
I
and the Official Solicitor (“OS”) was requested to represent X and Y I
(“Decision”). The Judge’s major concern is whether the Family Court can
J J
grant custody of the children to the petitioner wife in the present case
K notwithstanding that (a) a parental order or an adoption order has not been K
put in place to legalise the parent-child relationship; and/or (b) the court has
L L
not sanctioned the expenses of the surrogacy agreements which are
M prohibited and unenforceable under the law in Hong Kong. M
N N
B. BACKGROUND
O O
3. The parties were married in 2012 but separated since about
P March 2019. The petitioner wife (“W”) issued a petition for divorce in P
April 2022 to which the respondent husband (“H”) did not oppose. A
Q Q
decree nisi of divorce was later granted on 27 September 2022.
R R
4. H and W have a son born in 2015. In 2017, they decided to
S S
enter into 2 surrogacy agreements through an agency in California in USA
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A A
B B
and as a result, (i) X , a daughter, was born in September 2018 by a surrogate
C mother Ms A, by an embryo formed by the respective gametes of H and W C
and transferred to the uterus of Ms A, and (ii) Y, a son, was born in
D D
November 2018 by a similar procedure with an embryo formed by the
E respective gametes of H and W transferred to the uterus of Ms B. E
F F
5. The parties were able to reach an agreement for W to have
G custody, care and control of all three children with reasonable access to H G
and H agreed to pay maintenance for them. The agreed terms were
H H
contained in a consent summons filed on 11 May 2022 (“Consent
I Summons”). The Judge declined to make any orders in respect of X and I
Y and alerted the parties of the provisions of the Parent and Child Ordinance,
J J
Cap 429 (“PCO”) and also the Human Reproductive Technology Ordinance,
K Cap 561 (“HRTO”). Notwithstanding being alerted, the parties have not K
applied for nor obtained a parental order under PCO, nor have they
L L
commenced any adoption procedures, in respect of X and Y.
M M
6. After signing the Consent Summons, H had not engaged further
N N
in the divorce proceedings and had failed to attend any further hearings in
O the Family Court. Mr Dykes SC, who was representing W before the Judge, O
lodged written submissions to the Judge that the lack of a parental order or
P P
an adoption order was not an obstacle to the Family Court making
Q Q
appropriate orders in the best interests of X and Y under the Matrimonial
R
Proceedings and Property Ordinance, Cap 192 (“MPPO”) as they were R
“children of the family” within section 2 of the MPPO.
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A A
B B
7. Due to the Judge’s concern over whether X and Y would be
C considered “children of the family” and whether she had jurisdiction to make C
orders over them, she decided to transfer the proceedings up to the Court of
D D
First Instance.
E E
8. Essentially, the issue is whether a child, born to a surrogate
F F
mother, can be considered a “child of the family” of the commissioning
G parents such that custody and maintenance orders can be made in the divorce G
proceedings commenced by the commissioning parents. This Court
H H
directed a preliminary hearing on this issue.
I I
9. At the preliminary hearing before this Court, Counsel
J J
Ms Jennifer A Tse appeared for W, and Counsel Mr Eugene Yim appeared
K for the OS, representing the children X and Y. K
L L
C. RELEVANT STATUTORY PROVISIONS IN THE MPPO
M M
10. The starting point is section 19(1) of the MPPO which
N empowers the court to make orders for custody and education of any child N
O
of the family who is under the age of 18 in divorce, nullity or judicial O
separation (for the purpose of discussion in this judgment, I will refer to
P
these three sets of proceedings collectively as “matrimonial P
Q
proceedings”) 1 , and the court may, if it thinks fit, direct that proper Q
proceedings be taken for making the child a ward of court.
R R
S S
1
cf definition of “Matrimonial Proceedings” in PD 15.12
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11. Section 19 (2) of MPPO then provides as follows:
C C
“Where an order in respect of a child is made under this section, the
D order shall not affect the rights over or with respect to the child of D
any person, other than a party to the marriage in question, unless
the child is the child of one or both of the parties to that marriage
E and that person was a party to the proceedings on the application E
for an order under this section.”
F F
12. The definition of “child of the family” is set out in section 2 of
G G
MPPO, and is preceded by the definition of “child”, and those definitions
H H
are set out hereunder:
I I
“child (子女), in relation to one or both parties to a marriage,
J
includes an illegitimate or adopted child of that party or, as the J
case may be, of both parties;
K child of the family (家庭子女), in relation to the parties to a K
marriage, means—
L (a) a child of both those parties; and L
(b) any other child who has been treated by both those parties as
M M
a child of their family;”
N N
D. STATUTORY INTERPRETATION
O O
D.1 Preliminary observations/comments
P P
Q 13. My first observation/comment is that the definition of “child” Q
does not in fact set out what categories of children are included in the
R R
definition and there is no exhaustive list of children who fall within that
S definition. It is only qualified by the words “in relation to one or both S
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A A
B B
parties to a marriage”. In fact, the words “in relation to” are used and not
C simply the word “of ”. Further, as the definition uses the word “includes”, C
it is clearly not intended to be limited to (i) the illegitimate or adopted child
D D
of one party or (ii) the illegitimate or adopted child of both parties, and
E includes legitimate, non-adopted and any other children of one party, or of E
both parties to the marriage.
F F
G 14. As seen in NF v R [2023] 5 HKLRD 58, a parent of a child can G
be a legal or a “natural” parent (not necessarily biological) parent of that
H H
child and there are at least 3 ways in which a person may become a “natural”
I parent of a child2. Consequently, a child of his/her “natural” parent/s may I
also fall within the definition of “child” in the matrimonial proceedings of
J J
his/her “natural” parents. Further, it seems the definition is wide enough
K to include a child born out of surrogacy arrangements with the gametes of K
one or both parties to a marriage.
L L
M 15. My second observation/comment is that although the definition M
of “child” precedes the definition of “child of the family” in section 2 of
N N
MPPO, there is nothing in the two definitions, on the face of it, to suggest
O one is linked to the other, or that a “child of the family” has to fulfil the O
definition of “child”, or fall within the definition of “child”, before he or she
P P
can be treated by both parties as a child of their family.
Q Q
R R
2
S At para 72, NF v R, quoting from Baroness Hale in Re G (Children) (Residence: Same-sex Partner) S
[2006] 1 WLR 2305, at para 30
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A A
B B
16. My third observation/comment is that the word “and” at the
C end of (a) in the definition of “child of the family” may, subject to the C
legislative intent, in the context be disjunctive3.
D D
E D.2 Legislative intent E
F 17. It has been said that the modern approach to statutory F
interpretation is not to simply look at the natural and ordinary meaning of
G G
4
the term but also the context and purpose of the term . In the interpretation
H H
of a statutory provision, it is important to have regard to the legislative intent
I
of that statutory provision. I
J 18. The MPPO first came into effect on 1 July 1972 and was J
enacted to provide for ancillary relief and children matters in matrimonial
K K
proceedings covered respectively by the previous Parts VI and VII of
L L
Matrimonial Causes Ordinance, Cap 179 (I will refer to the version prior to
M
the amendments in MPPO as “Pre-1972 MCO”). The Pre-1972 MCO M
contained a definition of “relevant child” in section 2 thereof.
N N
O
19. The definition of “relevant child” in section 2 of the Pre-1972 O
MCO was as follows:
P P
Q Q
3
R See Federal Steam Navigation Co Ltd v Department of Trade Industry (1974) WLR 505, for R
interpretation of “and” and “or” of the criminal statute referred therein.
4
See para 9.1, ZC v CN (Divorce: jurisdiction), [2014] 5 HKLRD 43, [2014] HKEC 1344,
S CACV 255/2013, in relation to meaning of the term “substantial connection” S
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A A
B B
“relevant child” means a child who is -
C (a) a child of both parties to the marriage in question; or C
(b) a child of one party to the marriage who has been accepted as
D one of the family by the other party. D
And in paragraphs (a) and (b) of this definition “child” includes
E E
illegitimate child and adopted child; and references to a child of
the marriage in section 29, subsection (3) of section 33, subsection
F (2) of section 34, subsection (2) of section 46 and subsection (2) F
of section 50 include references to a child adopted by both parties
to the marriage.” (emphasis added)
G G
H 20. Hence under the Pre-1972 MCO, in order for the court to make H
orders for custody of and financial provision for a child in matrimonial
I I
proceedings, the child had to fall within the definition of “relevant child”.
J According to Mr Yim, paragraph 1 Second Schedule of s.33 of the MPPO J
1972 specifically repealed the definition of “relevant child” as contained in
K K
the Pre-1972 MCO.
L L
21. What is clear is that there was no separate definition of “child”
M M
in section 2 of the Pre-1972 MCO. The two separate definitions of “child”,
N or “child of the family” were introduced for the first time in MPPO in 1972. N
O O
22. Mr Yim has referred the Court to the Official Report of
P Proceedings, Hong Kong Legislative Council, 24 May 1972 (“May 1972 P
Official Report”), in which the then Attorney General explained (at p 785)
Q Q
that the MPPO “consolidates and tidies up provisions which are already to
R be found Parts VI and VII of the [Pre-1972 MCO], though there are some R
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A A
B B
changes of substance [which he would summarise]” when the bill of MPPO
C was tabled for first and second reading. C
D D
23. As pointed out by Mr Yim, more specifically, the Attorney
E General said (at p 786) that: E
F F
“Clause 8 extends the power to award financial relief for wilful
neglect to maintain in that a husband as well as a wife will be able
G to apply for maintenance in certain circumstances, an order may G
be made for the benefit of any child of the family, that is to say,
not only a child of both spouses but any other child who is treated
H by them as a child of the family, and security may be ordered for H
a spouse's life or until re-marriage, not merely for the spouses'
I joint lives as formerly.” (emphasis added) I
J J
24. It was stated in the Explanatory Memorandum (at p 789):
K K
“Clauses 18 to 20 provide for the protection and custody of children.
L
Clause 18 replaces the present provision in the [Pre-1972 MCO] L
requiring the court to satisfy itself about the arrangements made
for the children of the family before making absolute a decree nisi.
M Clauses 19 and 20 reproduce in a revised form the existing M
provisions of that [Pre-1972 MCO] relating to the custody of
children. The only change of substance is that the revised
N N
provisions will apply to the wider class of children comprised in
the definition of "child of the family" in clause 2(1); this includes
O a child treated by the parties to a marriage as a child of their O
family.” (emphasis added)
P P
25. No further remarks in relation to this issue were recorded in the
Q Q
Official Report of Proceedings, Hong Kong Legislative Council, 21 June
R 1972 [“June 1972 Official Report”], when the Bill was read for the third R
time.
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26. However, Mr Yim has pointed out that although the Attorney
C General did not explain further how wide the new definition for “child of the C
family” was intended to cover, it can be seen that the reference to “a child of
D D
one party to the marriage” was expressly removed from the new definition.
E E
27. In my view, this would clearly support the interpretation under
F F
the new definition, a child is no longer required to be a child of at least one
G party to the marriage in order for him/her to have been “treated” by both G
parties to be a “child of the family”. Further, any interpretation to require
H H
that the child has to be a child of both those parties to the marriage in order
I for him/her fall within a “child of the family” is clearly an even narrower I
interpretation than the definition of “relevant child” and clearly does not
J J
accord with the then legislative intent for MPPO. In other words, in my
K view, to accord with the legislative intent, a “child of the family” does not K
have to be a child of either or both of the parties. I further find support for
L L
my view in the authorities set out below.
M M
D.3 The UK statutory provisions
N N
O 28. Our definition of “relevant child” in the Pre-1972 MCO was O
modelled on section 46(2) of the English Matrimonial Causes Act 1965, c 72
P P
(“1965 MCA”). Section 46 of the 1965 Act provided as follows:
Q Q
“46 Short title, interpretation, commencement and extent
R R
(1) This Act may be cited as the Matrimonial Causes-Act 1965.
S (2) In this Act— S
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“adopted”, except in section 23(2), means adopted in
pursuance of an adoption order made under the …; and
C C
“relevant child” means a child who is—
D D
(a) a child of both parties to the marriage in question; or
E E
(b) a child of one party to the marriage who has been
accepted as one of the family by the other party, and in
F paragraphs (a) and (b) of this definition “child” F
includes illegitimate child and adopted child; and
references to a child of the marriage in sections 17,
G 21(3), 22(2), 34(2) and 41(3) of this Act include G
references to a child adopted by both parties to the
H marriage. H
(3) …
I I
(4) …”
J J
29. The Matrimonial Proceedings and Property Act 1970 then
K K
came into effect in England & Wales on 29 May 1970 (“1970 MPPA”) upon
L which our MPPO was largely modelled on. L
M M
30. In section 27(1) of the 1970 MPPA, “child” and “child of the
N family” are defined as: N
O O
“child”, in relation to one or both of the parties to a marriage,
includes an illegitimate or adopted child of that party or, as the
P case may be, of both parties; P
“child of the family”, in relation to the parties to a marriage,
Q means— Q
R
(a) a child of both of those parties; and R
(b) any other child, not being a child who has been boarded-out
S with those parties by a local authority or voluntary S
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A A
B B
organisation, who has been treated by both of those parties as
a child of their family; (emphasis added)
C C
D 31. The above definitions were identical to the definitions of the D
two terms in section 52(1) of the Matrimonial Causes Act 1973 (“1973
E E
MCA”) and later in section 42(4)(a) of the Family Law Act 1986 (“1986
F FLA”). F
G G
32. As seen above, apart from (i) the underlined words “not being
H a child who has been boarded-out with those parties by a local authority or H
voluntary organization” (“Underlined Words”), the rest of the definition of
I I
“child of the family” is the same as our definition in section 2 of MPPO.
J J
33. The Children Act first came into force in 1989 (“1989 Act”).
K K
Section 10 of the 1989 Act empowers the court to make section 8 orders5
L on applications of persons set out under section 10 who are entitled to apply, L
including in respect of a child a party to a marriage (whether or not
M M
subsisting) in relation to whom a child is a child of the family6. Section
N 105(1) of the 1989 Act then defines “child” and “child of the family” as: N
O O
“child” means, subject to paragraph 16 of Schedule 1, a person
under the age of eighteen;
P P
…
Q “child of the family”, in relation to the parties to a marriage, Q
means—
R R
5
S A section 8 order is, in brief, an order regulating arrangements in relation to a child S
6
Under section 10(5), 1989 Act.
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(a) a child of both of those parties;
C (b) any other child, not being a child who is placed with those C
parties as foster parents by a local authority or voluntary
organisation, who has been treated by both of those parties as
D a child of their family; (emphasis added) D
E E
7
34. In the current version of section 105(1) of the 1989 Act,
F “child of the family” is now defined as follows: F
G G
“child of the family”, in relation to parties to a marriage, or to two
people who are civil partners of each other, means—
H H
(a) a child of both of them, and
I I
(b) any other child, other than a child placed with them as foster
parents by a local authority or voluntary organisation, who has
J been treated by both of them as a child of their family J
K K
35. It is quite clear the definition of “child of the family” in section
L 2 of our MPPO has substantially followed those in the 1970 MPPA and the L
English statues, save for the omission of the Underlined Words (later
M M
slightly amended). Quite rightly, Mr Yim accepts that notwithstanding the
N absence of the Underlined Words, there is no material difference in the Hong N
Kong and the English definitions of “child of the family” and that whether
O O
under Hong Kong or English enactments, the material test for “child of the
P family” in (b) of the definition is whether the child has been “treated” by P
both parties as a child of their family.
Q Q
R R
S S
7
Up to 23 April 2024
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D.4 The authorities
C C
36. Both Mr Yim and Ms Tse have referred the Court to English
D
authorities on the interpretation of the term “child of the family”. D
E E
37. In M v M (Child of the Family) (1981) 2 FLR 39, referred to
F the Court by by Mr Yim, after comparing the new definition of “child of the F
family” in section 52 of the 1973 MCA and the old definition of “relevant
G G
child” in section 46 of the 1965 MCA, Ormrod LJ explained at page 40, at
H H
5th paragraph of the page:-
I I
“The new definition, therefore, is different in two respects from the
old one. The new definition applies to any child, whether or not
J J
a child of one of the parties and, instead of the concept of
‘acceptance’ by the spouse who is not the natural parent of the
K child, we now have to consider the words ‘treated as a child of the K
family.’ These are obviously material differences.” (emphasis
added)
L L
M 38. Re A (Child of the Family) [1998] 1 FLR 347, was an authority M
relied on by Mr Dykes SC before the Judge and now again relied on and
N N
cited by Ms Tse on behalf of W. In Re A, the wife petitioned for divorce
O against the husband, and they had a granddaughter A who had been living O
with them. The judge found that A was a child of the family within the
P P
meaning of section 52 of the 1973 MCA in that the husband and the wife
Q had treated A as a child of their family and cared for all A’s needs. The Q
husband appealed contending that A did not fall within section 52. His
R R
appeal was dismissed. Butler-Sloss LJ (as she then was) expressed the
S S
following view at page 352:-
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A A
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“Section 52 of the Matrimonial Causes Act 1973 is capable of
applying both to members of the extended family and to those with
C no natural relationship to the child.” (emphasis added) C
D D
39. In the Decision, the Judge appeared to have formed a
E preliminary view that Re A could not advance W’s case herein as in Re A, A E
was treated as the child of the family “for the purpose of financial provision
F F
by the husband (the grandfather) only”8. However, I agree with Ms Tse
G that the “child of the family” definition in the 1973 MCA was in no way G
qualified to mean “for the purposes of financial provision” only.
H H
I 40. In any event, Mr Yim has also referred to Re A and has I
submitted that the better view is that under section 2 of MPPO, a child is
J J
NOT required to have any natural relationship with the parties to the
K marriage in order to be “treated as a child of the family”. K
L L
41. In fact, it seems all along, our Family Court judges have
M accepted that it is not necessary for a “child of the family” to be a child of M
either party. Ms Tse has referred to two cases 張 v 郭 unrep, FCMC
N N
1425/2009, 29 July 2014 at paragraph 86, 黃 v 梁 FCMC 11415/2015,
O O
9 May 2017, at paragraph 7, in which the respective Family Court judges
P had quoted, adopted, and applied the following passage from Rayden & P
Jackson: Divorce and Family Matters (18th ed, 2005) Volume 1 at section
Q Q
10.130:
R R
S S
8
At para 31
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A A
B B
“Now, to establish that such a child is a child of the family it is
sufficient to show that the child was treated by both parties as a
C child of the family. There must be ‘a family’, and there must be C
‘treatment’ as a child of the family…In deciding whether a child
has been treated as a child of the family the court should look at
D D
the question broadly, avoiding the finer points of analysis…The
child must, however, be treated as a child of the family by both
E parties… It must also be noted that it is not necessary for a child E
of the family to be a child of either party so that if, as sometimes
happens, a young relative of either the husband or the wife lives
F with the parties and is treated by both of them as one of the family, F
he or she will be a child of the family for the purposes of the 1973
G Act.” [my emphasis] G
H H
42. Having considered the above, it is clear in my view for a child
I to fall within “child of the family” he/she does not have to be a child of either I
one or both parties to the marriage.
J J
K D.5 Section 19(2) of MPPO K
L 43. Lastly, Mr Yim has drawn my attention to section 19(2) of L
MPPO, and pointed out that one possible interpretation of the above section
M M
19(2) is that no order should be made by the court under section 19(1) if the
N same affects the rights of a third party (other than the parties to the marriage) N
over or with respect of the child unless the exceptions are satisfied.
O O
P 44. In my view, the plain meaning of the words is that any order P
made by the court under section 19(1) would not affect the rights of a person
Q Q
over a child unless (i) that person is a party to the marriage in question and
R (ii) the child is the child of one or both parties to the marriage and (iii) that R
person was a party to the proceedings. This does not however mean that
S S
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A A
B B
the court has no power or jurisdiction to make any orders over the child who
C is a “child of the family” in the matrimonial proceedings, and in fact in my C
view support the interpretation of the term set out below.
D D
E E. CONCLUSION E
F 45. Having regard to all the above including the wordings of the F
statutes, the discussions in the English case law on the equivalent provisions,
G G
and the legislative history and the statutory provisions of MPPO, it is quite
H
clear that under the definition of “child of the family” in section 2 of MPPO, H
I
a child (or minor) is not required to have any natural relationship with the I
parties to the marriage in order to be “treated as a child of the family”.
J J
Thus, a child born under surrogacy arrangements can be considered as a
K “child of the family” of the commissioning parents. There is no need for K
any adoption order, or a parental order, or sanction of the surrogacy
L L
arrangement to be obtained in order for a child to fall within the definition
M of “child of the family”. In light of such views, I do not need to consider M
those other submissions made by both Counsel in relation to PCO or HRTO
N N
or on alternative relief.
O O
46. To conclude, in my view, there is jurisdiction for the court,
P P
whether the District Court (Family Court) or the Court of First Instance, to
Q make relevant orders under section 19(1) of MPPO for a child who is born Q
out of surrogacy arrangements undertaken by the commissioning parents
R R
provided that such child has been treated by the commissioning parents as a
S child of their family. S
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A A
B B
47. Having dealt with the preliminary issue, I see no reason why
C these proceedings should remain in the High Court. I direct that the C
proceedings be re-transferred to the Family Court forthwith, and that the
D D
Consent Summons be dealt with on paper by a new judge/master assigned
E by the Principal Family Court Judge. I make no order as to costs. E
F F
48. Lastly, I would like to thank Ms Tse, Mr Yim and the Official
G Solicitor for their assistance to the Court. G
H H
I I
J ( Bebe Pui Ying Chu ) J
Judge of the Court of First Instance
K High Court K
L L
M M
Ms Jennifer A Tse, instructed by B C Chow & Co, for the Petitioner
N The Respondent, acting in person and absent N
O Mr Eugene Yim, instructed by the Official Solicitor, for the Children O
P P
Q Q
R R
S S
T T
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V V
A A
B B
HCMC 3/2023
C
[2024] HKCFI 1157 C
D IN THE HIGH COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
COURT OF FIRST INSTANCE
F MATRIMONIAL CAUSES NO 3 OF 2023 F
_______________________
G G
H H
BETWEEN
I HC formerly known as HWH Petitioner I
and
J J
WYH Respondent
K K
______________________
L L
M M
Before: Hon B Chu J in Chambers (Not Open to Public)
N Date of Hearing: 20 March 2024 N
Date of Judgment: 30 April 2024
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JUDGMENT
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A. INTRODUCTION
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1. This is the hearing of a preliminary issue as to whether the court
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has jurisdiction in matrimonial proceedings to make custody and
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maintenance orders for two children whom I shall refer to as X and Y, who E
were born in 2018 by different surrogate mothers pursuant to commercial
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surrogacy arrangements.
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2. By a decision handed down on 28 July 2023, these proceedings
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were transferred to this Court by Family Court Judge Grace Chan (“Judge”) H
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and the Official Solicitor (“OS”) was requested to represent X and Y I
(“Decision”). The Judge’s major concern is whether the Family Court can
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grant custody of the children to the petitioner wife in the present case
K notwithstanding that (a) a parental order or an adoption order has not been K
put in place to legalise the parent-child relationship; and/or (b) the court has
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not sanctioned the expenses of the surrogacy agreements which are
M prohibited and unenforceable under the law in Hong Kong. M
N N
B. BACKGROUND
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3. The parties were married in 2012 but separated since about
P March 2019. The petitioner wife (“W”) issued a petition for divorce in P
April 2022 to which the respondent husband (“H”) did not oppose. A
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decree nisi of divorce was later granted on 27 September 2022.
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4. H and W have a son born in 2015. In 2017, they decided to
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enter into 2 surrogacy agreements through an agency in California in USA
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and as a result, (i) X , a daughter, was born in September 2018 by a surrogate
C mother Ms A, by an embryo formed by the respective gametes of H and W C
and transferred to the uterus of Ms A, and (ii) Y, a son, was born in
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November 2018 by a similar procedure with an embryo formed by the
E respective gametes of H and W transferred to the uterus of Ms B. E
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5. The parties were able to reach an agreement for W to have
G custody, care and control of all three children with reasonable access to H G
and H agreed to pay maintenance for them. The agreed terms were
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contained in a consent summons filed on 11 May 2022 (“Consent
I Summons”). The Judge declined to make any orders in respect of X and I
Y and alerted the parties of the provisions of the Parent and Child Ordinance,
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Cap 429 (“PCO”) and also the Human Reproductive Technology Ordinance,
K Cap 561 (“HRTO”). Notwithstanding being alerted, the parties have not K
applied for nor obtained a parental order under PCO, nor have they
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commenced any adoption procedures, in respect of X and Y.
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6. After signing the Consent Summons, H had not engaged further
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in the divorce proceedings and had failed to attend any further hearings in
O the Family Court. Mr Dykes SC, who was representing W before the Judge, O
lodged written submissions to the Judge that the lack of a parental order or
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an adoption order was not an obstacle to the Family Court making
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appropriate orders in the best interests of X and Y under the Matrimonial
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Proceedings and Property Ordinance, Cap 192 (“MPPO”) as they were R
“children of the family” within section 2 of the MPPO.
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7. Due to the Judge’s concern over whether X and Y would be
C considered “children of the family” and whether she had jurisdiction to make C
orders over them, she decided to transfer the proceedings up to the Court of
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First Instance.
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8. Essentially, the issue is whether a child, born to a surrogate
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mother, can be considered a “child of the family” of the commissioning
G parents such that custody and maintenance orders can be made in the divorce G
proceedings commenced by the commissioning parents. This Court
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directed a preliminary hearing on this issue.
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9. At the preliminary hearing before this Court, Counsel
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Ms Jennifer A Tse appeared for W, and Counsel Mr Eugene Yim appeared
K for the OS, representing the children X and Y. K
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C. RELEVANT STATUTORY PROVISIONS IN THE MPPO
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10. The starting point is section 19(1) of the MPPO which
N empowers the court to make orders for custody and education of any child N
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of the family who is under the age of 18 in divorce, nullity or judicial O
separation (for the purpose of discussion in this judgment, I will refer to
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these three sets of proceedings collectively as “matrimonial P
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proceedings”) 1 , and the court may, if it thinks fit, direct that proper Q
proceedings be taken for making the child a ward of court.
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1
cf definition of “Matrimonial Proceedings” in PD 15.12
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11. Section 19 (2) of MPPO then provides as follows:
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“Where an order in respect of a child is made under this section, the
D order shall not affect the rights over or with respect to the child of D
any person, other than a party to the marriage in question, unless
the child is the child of one or both of the parties to that marriage
E and that person was a party to the proceedings on the application E
for an order under this section.”
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12. The definition of “child of the family” is set out in section 2 of
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MPPO, and is preceded by the definition of “child”, and those definitions
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are set out hereunder:
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“child (子女), in relation to one or both parties to a marriage,
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includes an illegitimate or adopted child of that party or, as the J
case may be, of both parties;
K child of the family (家庭子女), in relation to the parties to a K
marriage, means—
L (a) a child of both those parties; and L
(b) any other child who has been treated by both those parties as
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a child of their family;”
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D. STATUTORY INTERPRETATION
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D.1 Preliminary observations/comments
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Q 13. My first observation/comment is that the definition of “child” Q
does not in fact set out what categories of children are included in the
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definition and there is no exhaustive list of children who fall within that
S definition. It is only qualified by the words “in relation to one or both S
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parties to a marriage”. In fact, the words “in relation to” are used and not
C simply the word “of ”. Further, as the definition uses the word “includes”, C
it is clearly not intended to be limited to (i) the illegitimate or adopted child
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of one party or (ii) the illegitimate or adopted child of both parties, and
E includes legitimate, non-adopted and any other children of one party, or of E
both parties to the marriage.
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G 14. As seen in NF v R [2023] 5 HKLRD 58, a parent of a child can G
be a legal or a “natural” parent (not necessarily biological) parent of that
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child and there are at least 3 ways in which a person may become a “natural”
I parent of a child2. Consequently, a child of his/her “natural” parent/s may I
also fall within the definition of “child” in the matrimonial proceedings of
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his/her “natural” parents. Further, it seems the definition is wide enough
K to include a child born out of surrogacy arrangements with the gametes of K
one or both parties to a marriage.
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M 15. My second observation/comment is that although the definition M
of “child” precedes the definition of “child of the family” in section 2 of
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MPPO, there is nothing in the two definitions, on the face of it, to suggest
O one is linked to the other, or that a “child of the family” has to fulfil the O
definition of “child”, or fall within the definition of “child”, before he or she
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can be treated by both parties as a child of their family.
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2
S At para 72, NF v R, quoting from Baroness Hale in Re G (Children) (Residence: Same-sex Partner) S
[2006] 1 WLR 2305, at para 30
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16. My third observation/comment is that the word “and” at the
C end of (a) in the definition of “child of the family” may, subject to the C
legislative intent, in the context be disjunctive3.
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E D.2 Legislative intent E
F 17. It has been said that the modern approach to statutory F
interpretation is not to simply look at the natural and ordinary meaning of
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4
the term but also the context and purpose of the term . In the interpretation
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of a statutory provision, it is important to have regard to the legislative intent
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of that statutory provision. I
J 18. The MPPO first came into effect on 1 July 1972 and was J
enacted to provide for ancillary relief and children matters in matrimonial
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proceedings covered respectively by the previous Parts VI and VII of
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Matrimonial Causes Ordinance, Cap 179 (I will refer to the version prior to
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the amendments in MPPO as “Pre-1972 MCO”). The Pre-1972 MCO M
contained a definition of “relevant child” in section 2 thereof.
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19. The definition of “relevant child” in section 2 of the Pre-1972 O
MCO was as follows:
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3
R See Federal Steam Navigation Co Ltd v Department of Trade Industry (1974) WLR 505, for R
interpretation of “and” and “or” of the criminal statute referred therein.
4
See para 9.1, ZC v CN (Divorce: jurisdiction), [2014] 5 HKLRD 43, [2014] HKEC 1344,
S CACV 255/2013, in relation to meaning of the term “substantial connection” S
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“relevant child” means a child who is -
C (a) a child of both parties to the marriage in question; or C
(b) a child of one party to the marriage who has been accepted as
D one of the family by the other party. D
And in paragraphs (a) and (b) of this definition “child” includes
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illegitimate child and adopted child; and references to a child of
the marriage in section 29, subsection (3) of section 33, subsection
F (2) of section 34, subsection (2) of section 46 and subsection (2) F
of section 50 include references to a child adopted by both parties
to the marriage.” (emphasis added)
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H 20. Hence under the Pre-1972 MCO, in order for the court to make H
orders for custody of and financial provision for a child in matrimonial
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proceedings, the child had to fall within the definition of “relevant child”.
J According to Mr Yim, paragraph 1 Second Schedule of s.33 of the MPPO J
1972 specifically repealed the definition of “relevant child” as contained in
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the Pre-1972 MCO.
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21. What is clear is that there was no separate definition of “child”
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in section 2 of the Pre-1972 MCO. The two separate definitions of “child”,
N or “child of the family” were introduced for the first time in MPPO in 1972. N
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22. Mr Yim has referred the Court to the Official Report of
P Proceedings, Hong Kong Legislative Council, 24 May 1972 (“May 1972 P
Official Report”), in which the then Attorney General explained (at p 785)
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that the MPPO “consolidates and tidies up provisions which are already to
R be found Parts VI and VII of the [Pre-1972 MCO], though there are some R
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changes of substance [which he would summarise]” when the bill of MPPO
C was tabled for first and second reading. C
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23. As pointed out by Mr Yim, more specifically, the Attorney
E General said (at p 786) that: E
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“Clause 8 extends the power to award financial relief for wilful
neglect to maintain in that a husband as well as a wife will be able
G to apply for maintenance in certain circumstances, an order may G
be made for the benefit of any child of the family, that is to say,
not only a child of both spouses but any other child who is treated
H by them as a child of the family, and security may be ordered for H
a spouse's life or until re-marriage, not merely for the spouses'
I joint lives as formerly.” (emphasis added) I
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24. It was stated in the Explanatory Memorandum (at p 789):
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“Clauses 18 to 20 provide for the protection and custody of children.
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Clause 18 replaces the present provision in the [Pre-1972 MCO] L
requiring the court to satisfy itself about the arrangements made
for the children of the family before making absolute a decree nisi.
M Clauses 19 and 20 reproduce in a revised form the existing M
provisions of that [Pre-1972 MCO] relating to the custody of
children. The only change of substance is that the revised
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provisions will apply to the wider class of children comprised in
the definition of "child of the family" in clause 2(1); this includes
O a child treated by the parties to a marriage as a child of their O
family.” (emphasis added)
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25. No further remarks in relation to this issue were recorded in the
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Official Report of Proceedings, Hong Kong Legislative Council, 21 June
R 1972 [“June 1972 Official Report”], when the Bill was read for the third R
time.
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26. However, Mr Yim has pointed out that although the Attorney
C General did not explain further how wide the new definition for “child of the C
family” was intended to cover, it can be seen that the reference to “a child of
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one party to the marriage” was expressly removed from the new definition.
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27. In my view, this would clearly support the interpretation under
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the new definition, a child is no longer required to be a child of at least one
G party to the marriage in order for him/her to have been “treated” by both G
parties to be a “child of the family”. Further, any interpretation to require
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that the child has to be a child of both those parties to the marriage in order
I for him/her fall within a “child of the family” is clearly an even narrower I
interpretation than the definition of “relevant child” and clearly does not
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accord with the then legislative intent for MPPO. In other words, in my
K view, to accord with the legislative intent, a “child of the family” does not K
have to be a child of either or both of the parties. I further find support for
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my view in the authorities set out below.
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D.3 The UK statutory provisions
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O 28. Our definition of “relevant child” in the Pre-1972 MCO was O
modelled on section 46(2) of the English Matrimonial Causes Act 1965, c 72
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(“1965 MCA”). Section 46 of the 1965 Act provided as follows:
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“46 Short title, interpretation, commencement and extent
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(1) This Act may be cited as the Matrimonial Causes-Act 1965.
S (2) In this Act— S
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“adopted”, except in section 23(2), means adopted in
pursuance of an adoption order made under the …; and
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“relevant child” means a child who is—
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(a) a child of both parties to the marriage in question; or
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(b) a child of one party to the marriage who has been
accepted as one of the family by the other party, and in
F paragraphs (a) and (b) of this definition “child” F
includes illegitimate child and adopted child; and
references to a child of the marriage in sections 17,
G 21(3), 22(2), 34(2) and 41(3) of this Act include G
references to a child adopted by both parties to the
H marriage. H
(3) …
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(4) …”
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29. The Matrimonial Proceedings and Property Act 1970 then
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came into effect in England & Wales on 29 May 1970 (“1970 MPPA”) upon
L which our MPPO was largely modelled on. L
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30. In section 27(1) of the 1970 MPPA, “child” and “child of the
N family” are defined as: N
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“child”, in relation to one or both of the parties to a marriage,
includes an illegitimate or adopted child of that party or, as the
P case may be, of both parties; P
“child of the family”, in relation to the parties to a marriage,
Q means— Q
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(a) a child of both of those parties; and R
(b) any other child, not being a child who has been boarded-out
S with those parties by a local authority or voluntary S
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organisation, who has been treated by both of those parties as
a child of their family; (emphasis added)
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D 31. The above definitions were identical to the definitions of the D
two terms in section 52(1) of the Matrimonial Causes Act 1973 (“1973
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MCA”) and later in section 42(4)(a) of the Family Law Act 1986 (“1986
F FLA”). F
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32. As seen above, apart from (i) the underlined words “not being
H a child who has been boarded-out with those parties by a local authority or H
voluntary organization” (“Underlined Words”), the rest of the definition of
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“child of the family” is the same as our definition in section 2 of MPPO.
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33. The Children Act first came into force in 1989 (“1989 Act”).
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Section 10 of the 1989 Act empowers the court to make section 8 orders5
L on applications of persons set out under section 10 who are entitled to apply, L
including in respect of a child a party to a marriage (whether or not
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subsisting) in relation to whom a child is a child of the family6. Section
N 105(1) of the 1989 Act then defines “child” and “child of the family” as: N
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“child” means, subject to paragraph 16 of Schedule 1, a person
under the age of eighteen;
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…
Q “child of the family”, in relation to the parties to a marriage, Q
means—
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5
S A section 8 order is, in brief, an order regulating arrangements in relation to a child S
6
Under section 10(5), 1989 Act.
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(a) a child of both of those parties;
C (b) any other child, not being a child who is placed with those C
parties as foster parents by a local authority or voluntary
organisation, who has been treated by both of those parties as
D a child of their family; (emphasis added) D
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7
34. In the current version of section 105(1) of the 1989 Act,
F “child of the family” is now defined as follows: F
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“child of the family”, in relation to parties to a marriage, or to two
people who are civil partners of each other, means—
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(a) a child of both of them, and
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(b) any other child, other than a child placed with them as foster
parents by a local authority or voluntary organisation, who has
J been treated by both of them as a child of their family J
K K
35. It is quite clear the definition of “child of the family” in section
L 2 of our MPPO has substantially followed those in the 1970 MPPA and the L
English statues, save for the omission of the Underlined Words (later
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slightly amended). Quite rightly, Mr Yim accepts that notwithstanding the
N absence of the Underlined Words, there is no material difference in the Hong N
Kong and the English definitions of “child of the family” and that whether
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under Hong Kong or English enactments, the material test for “child of the
P family” in (b) of the definition is whether the child has been “treated” by P
both parties as a child of their family.
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Up to 23 April 2024
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D.4 The authorities
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36. Both Mr Yim and Ms Tse have referred the Court to English
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authorities on the interpretation of the term “child of the family”. D
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37. In M v M (Child of the Family) (1981) 2 FLR 39, referred to
F the Court by by Mr Yim, after comparing the new definition of “child of the F
family” in section 52 of the 1973 MCA and the old definition of “relevant
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child” in section 46 of the 1965 MCA, Ormrod LJ explained at page 40, at
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5th paragraph of the page:-
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“The new definition, therefore, is different in two respects from the
old one. The new definition applies to any child, whether or not
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a child of one of the parties and, instead of the concept of
‘acceptance’ by the spouse who is not the natural parent of the
K child, we now have to consider the words ‘treated as a child of the K
family.’ These are obviously material differences.” (emphasis
added)
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M 38. Re A (Child of the Family) [1998] 1 FLR 347, was an authority M
relied on by Mr Dykes SC before the Judge and now again relied on and
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cited by Ms Tse on behalf of W. In Re A, the wife petitioned for divorce
O against the husband, and they had a granddaughter A who had been living O
with them. The judge found that A was a child of the family within the
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meaning of section 52 of the 1973 MCA in that the husband and the wife
Q had treated A as a child of their family and cared for all A’s needs. The Q
husband appealed contending that A did not fall within section 52. His
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appeal was dismissed. Butler-Sloss LJ (as she then was) expressed the
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following view at page 352:-
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“Section 52 of the Matrimonial Causes Act 1973 is capable of
applying both to members of the extended family and to those with
C no natural relationship to the child.” (emphasis added) C
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39. In the Decision, the Judge appeared to have formed a
E preliminary view that Re A could not advance W’s case herein as in Re A, A E
was treated as the child of the family “for the purpose of financial provision
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by the husband (the grandfather) only”8. However, I agree with Ms Tse
G that the “child of the family” definition in the 1973 MCA was in no way G
qualified to mean “for the purposes of financial provision” only.
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I 40. In any event, Mr Yim has also referred to Re A and has I
submitted that the better view is that under section 2 of MPPO, a child is
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NOT required to have any natural relationship with the parties to the
K marriage in order to be “treated as a child of the family”. K
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41. In fact, it seems all along, our Family Court judges have
M accepted that it is not necessary for a “child of the family” to be a child of M
either party. Ms Tse has referred to two cases 張 v 郭 unrep, FCMC
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1425/2009, 29 July 2014 at paragraph 86, 黃 v 梁 FCMC 11415/2015,
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9 May 2017, at paragraph 7, in which the respective Family Court judges
P had quoted, adopted, and applied the following passage from Rayden & P
Jackson: Divorce and Family Matters (18th ed, 2005) Volume 1 at section
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10.130:
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8
At para 31
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“Now, to establish that such a child is a child of the family it is
sufficient to show that the child was treated by both parties as a
C child of the family. There must be ‘a family’, and there must be C
‘treatment’ as a child of the family…In deciding whether a child
has been treated as a child of the family the court should look at
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the question broadly, avoiding the finer points of analysis…The
child must, however, be treated as a child of the family by both
E parties… It must also be noted that it is not necessary for a child E
of the family to be a child of either party so that if, as sometimes
happens, a young relative of either the husband or the wife lives
F with the parties and is treated by both of them as one of the family, F
he or she will be a child of the family for the purposes of the 1973
G Act.” [my emphasis] G
H H
42. Having considered the above, it is clear in my view for a child
I to fall within “child of the family” he/she does not have to be a child of either I
one or both parties to the marriage.
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K D.5 Section 19(2) of MPPO K
L 43. Lastly, Mr Yim has drawn my attention to section 19(2) of L
MPPO, and pointed out that one possible interpretation of the above section
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19(2) is that no order should be made by the court under section 19(1) if the
N same affects the rights of a third party (other than the parties to the marriage) N
over or with respect of the child unless the exceptions are satisfied.
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P 44. In my view, the plain meaning of the words is that any order P
made by the court under section 19(1) would not affect the rights of a person
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over a child unless (i) that person is a party to the marriage in question and
R (ii) the child is the child of one or both parties to the marriage and (iii) that R
person was a party to the proceedings. This does not however mean that
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the court has no power or jurisdiction to make any orders over the child who
C is a “child of the family” in the matrimonial proceedings, and in fact in my C
view support the interpretation of the term set out below.
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E E. CONCLUSION E
F 45. Having regard to all the above including the wordings of the F
statutes, the discussions in the English case law on the equivalent provisions,
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and the legislative history and the statutory provisions of MPPO, it is quite
H
clear that under the definition of “child of the family” in section 2 of MPPO, H
I
a child (or minor) is not required to have any natural relationship with the I
parties to the marriage in order to be “treated as a child of the family”.
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Thus, a child born under surrogacy arrangements can be considered as a
K “child of the family” of the commissioning parents. There is no need for K
any adoption order, or a parental order, or sanction of the surrogacy
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arrangement to be obtained in order for a child to fall within the definition
M of “child of the family”. In light of such views, I do not need to consider M
those other submissions made by both Counsel in relation to PCO or HRTO
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or on alternative relief.
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46. To conclude, in my view, there is jurisdiction for the court,
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whether the District Court (Family Court) or the Court of First Instance, to
Q make relevant orders under section 19(1) of MPPO for a child who is born Q
out of surrogacy arrangements undertaken by the commissioning parents
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provided that such child has been treated by the commissioning parents as a
S child of their family. S
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47. Having dealt with the preliminary issue, I see no reason why
C these proceedings should remain in the High Court. I direct that the C
proceedings be re-transferred to the Family Court forthwith, and that the
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Consent Summons be dealt with on paper by a new judge/master assigned
E by the Principal Family Court Judge. I make no order as to costs. E
F F
48. Lastly, I would like to thank Ms Tse, Mr Yim and the Official
G Solicitor for their assistance to the Court. G
H H
I I
J ( Bebe Pui Ying Chu ) J
Judge of the Court of First Instance
K High Court K
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M M
Ms Jennifer A Tse, instructed by B C Chow & Co, for the Petitioner
N The Respondent, acting in person and absent N
O Mr Eugene Yim, instructed by the Official Solicitor, for the Children O
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Q Q
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