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Advice! Establishing Paternity

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Photo courtesy of Withers

If a child is born out of wedlock, the father’s parental rights need to be legally recognised. Jocelyn Tsao of Withers counsels unmarried dads to get themselves a Section 3 Declaration

Cohabitation and having children prior to, rather than after, marriage has become popular in recent years. However, what unmarried fathers may not know is that there is no legal ‘presumption of paternity’ when their child is born outside of marriage. As the law currently stands, the unmarried father does not have the same legal parental rights as the unmarried mother. Unmarried fathers can therefore find themselves at a serious disadvantage if a relationship turns sour, particularly if their partner decides to relocate with their child to another country.

To establish legal parental rights, unmarried fathers need to apply for a court order (known as a Section 3 Declaration, under the Guardianship of Minors Ordinance). Where there is clearly a stable relationship between the father and the child, the court will almost certainly grant this. The court will consider factors like the degree of commitment that the father has shown towards the child, the degree of attachment that exists between the father and the child, and the father’s reasons for applying for the order.

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 and what medical decisions can be made on his behalf.

The COVID-19 pandemic and Hong Kong’s turbulent social political climate have motivated many expats to relocate totheir home country. So, what happens if a relationship ends and the unmarried mother decides to leave Hong Kong with her child without his father’s consent?

If the unmarried father has established legal parental rights to his child, he can invoke the Hague Convention on international child abduction – through cooperation between the central authorities of the relevant countries, he can immediately secure his child’s return. However, an unmarried father, who has not applied for a Section 3 Declaration and therefore has no legal parental rights, can find it impossible to call upon the Hague Convention. His only recourse is to apply to the local court of the child’s former residence (in Hong Kong) to secure a return order but, even then, he may face difficulties, particularly with enforcement.

The fact that the unmarried father does not have legal parental rights does not give the unmarried mother carte blanche to take his child away without his consent. This kind of conduct is frowned upon by any court of law. However, it makes sense for unmarried fathers to apply for a Section 3 Declaration immediately after their child’s birth, so that they may have the same legal parental rights as the mother. Parents who choose to cohabit rather than marry are well advised to consult an experienced family lawyer, who will make sure that both parties fully understand their parental rights and responsibilities.

Withers has extensive experience in dealing with child custody issues and Hong Kong family law.
Contact the team at 30/F United Centre, 95 Queensway, Admiralty, 3711 1600, www.withersworldwide.com/en-gb/hong-kong.

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