Court of Appeal
Civil Appeal No. 68 of 2014
Lam V-P, Cheung and Yuen JJA
Family Law
19 August 2015

Proceedings under Guardianship of Minors Ordinance – whether Family Court had jurisdiction where child not habitually residing or present in Hong Kong – whether inherent jurisdiction over child, founded on nationality prior to 1997, continued after 1997 on basis of permanent residence

M and F, the mother and father of G, never married. M was a mainland Chinese resident and F was a Hong Kong permanent resident. G was a permanent resident of Hong Kong by birth. Shortly after G was born, M and G moved to the Mainland. M and G were currently residing in Guangzhou, but had previously resided in Siming District, Xiamen and Fujian. In July 2012, M applied in Hong Kong under s. 10 of the Guardianship of Minors Ordinance (Cap. 13) (“GMO”) for F to pay maintenance for G (the “Hong Kong Proceedings”). Within one month, F then commenced proceedings on the Mainland in the Siming District seeking custody of G and an order that M pay him maintenance for G. In September 2012, F applied to stay the Hong Kong Proceedings on the ground of forum non conveniens in favour of the mainland Court. In January 2013, the Siming Court dismissed F’s claim. F then applied for the Hong Kong Proceedings to be dismissed on the basis that the Hong Kong Court had no jurisdiction to deal with M’s application because G was not an ordinary or habitual resident of Hong Kong or physically present here. On 27May 2013, the Hong Kong Family Court dismissed F’s jurisdictional challenge and application to stay the Hong Kong proceedings. In October 2013, F’s appeal against the decision of the Siming Court was dismissed. In November 2013, F commenced other mainland proceedings in the Tianhe District, Guangzhou, again for custody of G and payment of maintenance for her by M. In March 2014, the Tianhe Court granted custody of G to M and ordered F to pay maintenance. The Guangzhou Court dismissed F’s appeal against that decision, but varied it by inter alia removing the custody order in favour of M. F now appealed against the 27 May decision of the Family Court.

Held, allowing the appeal:

  • While there was no express provision in the GMO on whether the child must be habitually resident or physically present in Hong Kong at the time proceedings were commenced before the court’s jurisdiction could be invoked, in the absence of restrictions, the court should be prepared to proceed on the basis that it had such jurisdiction. However, it was not necessary for the purpose of this appeal to give a determinative answer because the Hong Kong Court also had inherent jurisdiction over children which might be exercised beyond its territorial limits.
  • The Hong Kong courts had inherent jurisdiction over children both before and after the resumption of exercise of sovereignty by mainland China on 1 July 1997. It was difficult to transpose the concept of jurisdiction founded on the original basis of nationality to one founded on the status as a permanent resident of Hong Kong. Irrespective of its original basis, this inherent jurisdiction was so well entrenched in Hong Kong in relation to children matters that one should proceed on the basis that in appropriate situations which involved a child who was a permanent resident of Hong Kong, the court would step in and exercise its traditional protective role over the child even if he or she was not physically present in Hong Kong at the time of the application. It was unthinkable that such inherent jurisdiction over children would suddenly disappear simply because of the change in 1997. Any contrary view would leave too large a lacuna in the practice and operation of family law.

Thomson Reuters – Sweet & Maxwell are the publishers of the Authorised Hong Kong Law Reports & Digest ("HKLRD") and the Authorised Hong Kong Court of Final Appeal Reports ("HKCFAR"), and providers of Westlaw HK (www.sweetandmaxwell.com.hk / www.westlaw.com.hk).