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Parental Rights of Unmarried Fathers in Hong Kong

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Jocelyn Tsao, partner in the divorce and family team at Withers, outlines what you need to know.

These days, the practice of cohabitation and having children prior to marriage has become increasingly common. What unmarried fathers may not know is that there is no legal presumption of paternity when their child is born outside of marriage.

Fathers in that situation can find themselves at a disadvantage if the relationship turns sour and the mother decides to leave with the child and relocate to another country.

As the law currently stands, an unmarried father does not have the same legal rights as the mother. To have equal legal rights, he needs to make an application to the court for an order that deems he is the father and entitles him to parental rights (known as Section 3 Declaration, under the Guardianship of Minors Ordinance). There are a few reasons for the discrepancy, mostly due to the varying reasons for children being born out
of wedlock ranging from an unintentional birth to a fully committed family arrangement. With more people choosing not to marry and to have a family, there are more cases which fall into the second category, making it patently unfair for the father not to have any legal rights to his child. Parental rights include custody rights – the right to be consulted over the important decisions in a child’s life, for example which school he goes to, where he lives, what religion he identifies with, what medical decisions can be made on his behalf, etc.

The common problematic scenario happens when the relationship breaks down and the mother decides to leave Hong Kong without consulting the father. When the father has legal rights to his child, he can invoke the Hague Convention on international child abduction to immediately secure the return of his child through cooperation between the central authorities of the relevant countries. However, for unmarried fathers who did not apply for a Section 3 Declaration, invoking the Hague Convention is difficult or impossible. In this situation, the unmarried father can apply to the local court of the child’s habitual residence to secure a return order, but he may face difficulties, particularly with enforcement.

Where there is clearly a stable relationship between the father and the child, the court will almost certainly grant a Section 3 Declaration. The court will consider factors like the degree of commitment which the father has shown towards the child; the degree of attachment which exists between the father and the child; and the reasons of the father applying for the order.

However, the fact that the unmarried father does not have formal legal rights does not give unmarried mothers carte blanche to ignore the father’s rights and take their child away without his consent. This kind of conduct will not only be frowned upon by court, there will be repercussions.

Withers’ teams of family and matrimonial lawyers have extensive experience in dealing with Hong Kong family law.

For enquiries, contact Jocelyn Tsao, partner in the divorce and family team, at [email protected].
Withers, 30/F United Centre, 95 Queensway, Admiralty, 3711 1600, www.withersworldwide.com

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