S v. J

S v. J

Section 12 PCO requires a joint application by both spouses and a single applicant is incompetent; section 6 cannot be used to circumvent s12; because the surrogate mothers and their husbands are the legal parents under PCO ss9-11, guardianship under GMO s8D(2)(b) is not available; adoption remains a statutory...

Source-derived case information.

Citation
S v. J
Parties
Plaintiff: S; Defendant: J; Intervener: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 September 2017
Case Number
HCMP1857/2016
Procedural Posture
Parental Order Application Under Parent and Child Ordinance; Wardship Application / Chambers Hearing; Judgment and Reasons Delivered (5 and 8 September 2017)
Outcome
Parental order application withdrawn by leave; Children made wards of court; care and control to Wife; access to Husband extended; Wife ordered to pay costs of this hearing.
Legal Topics
Parental Order Under PCO, Wardship, Parental Status and Recognition, Permanent Residency and Nationality, DNA Paternity Testing, Costs
Source Language
en
Family Law Immigration Law Guardianship Adoption Surrogacy Law Parental Order Under PCO Wardship Parental Status and Recognition +3 more

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Parties

S

Plaintiff

J

Defendant

Director of Immigration

Intervener

Procedural Posture

Parental Order Application Under Parent and Child Ordinance; Wardship Application / Chambers Hearing; Judgment and Reasons Delivered (5 and 8 September 2017)

Legal Issues

  1. 1 Whether a parental order under section 12 PCO can be made where only one spouse applies
  2. 2 If a parental order cannot be made, what orders secure the welfare of the children
  3. 3 The immigration status/permanent residency of the children and its effect on PCO and wardship

Ratio Decidendi

Section 12 PCO requires a joint application by both spouses and a single applicant is incompetent; section 6 cannot be used to circumvent s12; because the surrogate mothers and their husbands are the legal parents under PCO ss9-11, guardianship under GMO s8D(2)(b) is not available; adoption remains a statutory alternative; therefore, exercising the court's inherent jurisdiction to protect the children the court made the children wards of court, conferred care and control to the Wife, extended access to the Husband and awarded costs against the Wife; separately, the DOI's position that genetic link establishes permanent resident status for the children stands for immigration purposes.

Court Disposition

Parental order application withdrawn by leave; Children made wards of court; care and control to Wife; access to Husband extended; Wife ordered to pay costs of this hearing.

Orders

  • Leave granted to Husband to withdraw the parental order application
  • Children made wards of court under the court's inherent jurisdiction