Judicial Development Updates for Rainbow Families - the case of AA v BB

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Suzanne Mui

Suzanne Mui is a HKU law student currently enrolled in the LLB programme. With or without a legal dimension, LGBTQ+ has been a cause very close to her heart and will always be.

Summary
In May 2021, the Court of First Instance delivered a significant legal development when the judgment of AA v BB was handed down. The Applicant, who separated with her lesbian partner was granted guardianship, joint custody and joint care and control to her non-biological children despite not being legally married to the Respondent. The blog entry will offer a close examination of Hon B Chu J’s (as she then was) judgment and the legal implications for rainbow families and same sex couples.  
Overview
Guardianship, joint custody and joint care and control of children are often pertinent legal issues that feature in matrimonial proceedings. 

In the recent case AA v BB, the parties are a separated lesbian couple who are parents to two children during their long-standing relationship as domestic partners. The couple cohabited throughout their 17 years journey together but were never married. The applicant AA got pregnant and gave birth to her two children by way of sperm insemination with sperms donated to her by a close friend. She became the natural mother of her two children. The sperm donor reached an agreement with the couple to give up his rights to be the natural parent to the two children.

When the younger child was born in Hong Kong, it was however not possible for the respondent BB to register as her parent. This was because only heterosexual couples can be recognized by the law as a non-biological parent to their children, but not same-sex couples. In this case it meant that BB could not register as a parent despite being the non-biological mother who co-parented the two kids with the biological mother. 

The parties eventually separated. After their separation, they came to an agreement on sharing parental duties equally. This is however made difficult as BB is not legally a parent under Hong Kong law, where she has no guardianship rights, custody care and control of the children. 

The Applicant applied for court orders for the grant of joint custody, care and control to both parties. She also asks for the court to appoint the respondent as the guardian of the children. 

The application for joint custody, care and control was granted and the respondent was also appointed as the guardian of the children. 

Custody, care and control
In considering the granting of custody, care and control to a third party with non-biological relationship with the minor, the Court was of the view that the children’s best interests are the most pertinent consideration. 

The evidence shows that the children had no preference over their mothers, to which they refer to as “Mummy” and “Mamma”. It was also reflected in the social welfare report that the parties shared their parental duties equally and amicably. 

Guardianship
In considering the appointment of the respondent as the children’s guardians, the court once again considered whether this appointment would be in the best interest of the children. 

Under the laws of HK, only the Applicant who is the legal and natural parent of the two children is their guardian. The court, in exploring the concept of parenthood, found that for a person to become a child’s natural parent is not only based on biological parenthood but also on social and psychological parenthood. The implication is that parents need to provide the basic level of care but also care in terms of social guidance, education and protection. The court considered the Respondent to be the natural parent of the two children in being their psychological and social parent.

The court contended that it would be difficult for the children to understand why there is such a differentiation when both children are close to both of their children, and such differentiation cannot be in their interest. Thus, the guardianship was granted. 
 
Critique
The judgement is a sweet development for same-sex couples who are planning to have children or already have children. The fundamental concern of the court is to make decisions that are in the best interests of the children. 

And in arriving at its decisions, the court took a more liberal approach. The court took the view that a non-biological mother can be a natural parent and took into account that she can be a natural parent by providing for the children’s social and psychological needs. The court was not bound by heterosexual family conventions: the learned judge did not eliminate the possibility that the respondent can be a natural parent simply because she is not a male or cannot provide for her children a father figure. A modern view of parenthood and family was adopted by the court in allowing the guardianship application. 

This is a welcoming development. It also sheds light on future judicial developments, matrimonial or otherwise, where the common law system can help to bypass outdated statutory provisions that are often obstacles to many including sexual minorities.   

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