FH AND ANOTHER v. WB AND OTHERS

FH AND ANOTHER v. WB AND OTHERS

The court held that the welfare of the child is paramount in s.12 PCO applications and on that basis the court has power to extend the 6-month limit in s.12(2) by reading it down where necessary except in the clearest abuse of public policy; applying statutory interpretation, rights protection and precedents the court extended time by 22 months, granted a parental order, authorized retrospective approval of specified payments (USD 62,500) under s.12(7) PCO because applicants acted in good faith and no public policy abuse was shown, and declined to read down HRTO ss.17/39 in this case without government input.

Citation
[2019] HKCFI 1748
Parties
1st Applicant: FH; 2nd Applicant: MH; 1st Respondent: WB; 2nd Respondent: HB; 3rd Respondent: B (an infant) by the Official Solicitor as guardian ad litem; 4th Respondent: G (an infant) by the Official Solicitor as guardian ad litem
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
15 July 2019
Case Number
HCMP1313/2018
Procedural Posture
Parental Order Application (s.12 Parent and Child Ordinance) / Judgment at First Instance (in Chambers)
Outcome
Application granted: parental order made following extension of time and retrospective authorization of certain payments; HRTO not read down; no order as to Official Solicitor costs.
Legal Topics
Parental Order, Surrogacy, Welfare of the Child, Statutory Interpretation, Time Limit Extension, Reading Down, Human Reproductive Technology Ordinance, Expenses Approval, Joinder of Respondents, Official Solicitor Costs
Source Language
EN
Family Law Constitutional Law Immigration Law Criminal Law Medical/reproductive Technology Law Parental Order Surrogacy Welfare of the Child +7 more

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Parties

FH

1st Applicant

MH

2nd Applicant

WB

1st Respondent

HB

2nd Respondent

B (an infant) by the Official Solicitor as guardian ad litem

3rd Respondent

G (an infant) by the Official Solicitor as guardian ad litem

4th Respondent

Procedural Posture

Parental Order Application (s.12 Parent and Child Ordinance) / Judgment at First Instance (in Chambers)

Legal Issues

  1. 1 Whether the welfare principle is the paramount consideration in s.12 PCO applications
  2. 2 Whether the court has jurisdiction to extend the statutory 6-month time limit in s.12(2) PCO
  3. 3 Whether payments under the gestational carrier agreement were expenses reasonably incurred and whether the court should authorize retrospective non-reasonable payments under s.12(7) PCO

Ratio Decidendi

The court held that the welfare of the child is paramount in s.12 PCO applications and on that basis the court has power to extend the 6-month limit in s.12(2) by reading it down where necessary except in the clearest abuse of public policy; applying statutory interpretation, rights protection and precedents the court extended time by 22 months, granted a parental order, authorized retrospective approval of specified payments (USD 62,500) under s.12(7) PCO because applicants acted in good faith and no public policy abuse was shown, and declined to read down HRTO ss.17/39 in this case without government input.

Court Disposition

Application granted: parental order made following extension of time and retrospective authorization of certain payments; HRTO not read down; no order as to Official Solicitor costs.

Orders

  • Time extended by 22 months for the Applicants to apply under s.12 PCO for a parental order
  • Declaration that FH and MH are the parents of the Twins pursuant to s.12(1) PCO