AA v BB

Image Source: Sixth Tone Court Rules on LGBT Couple’s Landmark Child Custody Case (sixthtone.com)

AA v BB

Ariel Wong (Associate)

Ariel Wong is an HKU law student enrolled in the LLB programme.
Introduction

In the case, the parties involved are a same sex couple who co-parented two children (X and Y) during their relationship. AA gave birth to the children through donor sperm insemination. For X, who was born in Australia, both AA and BB were legally recognized as his guardians. For Y, who was born in Hong Kong, only AA was legally recognized as his guardian. 

After the couple’s separation, they reached a co-parenting agreement. Thus, AA sought for the grant of joint custody and joint care and control of the 2 children to both AA and BB. 

Despite the proceedings being uncontested, the Court called for a social welfare report. 

Ultimately, the court granted the orders for: 

1. BB to be made co-guardian of the 2 children; 
   
2. AA and BB to be granted joint custody and joint care and control of the 2 children: and 
   
3. the 2 children be made wards. 
   

CFI ruling on joint custody and joint care and control 

The Court confirmed that it had power to grant the orders under either its inherent jurisdiction or under section 10(1) of the Guardianship of Minors Ordinance (Cap. 3, “GMO”). 

In granting the orders, the Court held that the children’s best interests should be regarded as the first and paramount of all relevant considerations. In assessing a child’s best interest, the Court held that the fact of ‘natural parenthood’ is of significance. The Court went on to set out the 3 ways by which one can become a ‘natural parent’, namely: 

1. genetic parenthood: the provision of the gametes which produce the child; 
   
2. gestational parenthood: the conceiving and bearing of the child; and 
   
3. social and psychological parenthood: the relationship which develops through the child demanding and parent providing for the child’s needs.
   

The Court rejected that there was any presumption in favour of the natural parents of the child. Furthermore, the Court held that the granting of custody order is not limited to an order made in favour of a parent only and may extend to a non-parent or a third party having a non-biological relationship with the minor, but nonetheless in the child’s best interests.

For the present case, the Court also considered the Social Welfare Report, which found that the parties were able to share the parental responsibilities towards the children, and the children have been benefitting from both their parents’ love and care throughout their upbringing and expressed no preference over either of the parents. 

The Court concluded that it is in the best interests of X and Y for AA and BB to have their joint custody and joint care and control. 

CFI ruling on guardianship

Since both parties have already made the other testamentary guardian of the children by will, GMO Part 3 is inapplicable. The Court is asked to exercise its inherent jurisdiction in making BB the guardian of the children during the applicant’s lifetime. 

The Court held that although BB is not a legal parent of Y under the laws of Hong Kong, BB is a natural parent of Y by being a psychological and social parent in the third way mentioned above. The Court went on to state that it would be an anomaly if BB were to be a guardian of X under Australian laws, but not a guardian of Y, and such differentiation and/or discrimination cannot be in the children’s best interest. 

Thus, the Court concluded that it is in the best interests of the children that BB is to be appointed a guardian of both children.

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