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FCMP 185 / 2024
[2025] HKFC 47
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FAMILY COURT
MISCELLANEOUS PROCEEDINGS NO. 185 OF 2024
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IN THE MATTER OF the minor, LB
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and
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IN THE MATTER OF an Application under Sections 3(1)(d), 10(1), 21 and 26 of the Guardianship of Minors Ordinance,
Cap 13
, Laws of Hong Kong SAR
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and
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IN THE MATTER OF an Application under Order 90 of the Rules of the District Court,
Cap 336H
, Laws of Hong Kong SAR
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Coram :
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Her Honour Judge Grace Chan (paper disposal)
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Date of decision :
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11 March 2025
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DECISION
( Application for custody by a father not registered as the father
in the birth certificate )
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Introduction
1.
I have decided to write a short decision on this case, despite the fact that the applicant has filed a notice of discontinuance with the court on 3 February 2025. For reasons which appear below, had the applicant not filed a notice of discontinuance, I would have dismissed his application.
2.
Applications for custody under the Guardianship of Minors Ordinance,
Cap 13
(“
GMO
”) come before the Family Court on a routine basis. However, the interplay between the GMO and the Parent and Child Ordinance,
Cap 429
(“
PCO
”) is, regrettably, overlooked by some of the legal practitioners from time to time.
3.
The issue to consider is this: whether a father of an illegitimate child may be granted custody of that child, if he is
not
registered as the father in the relevant birth certificate.
The application & the background
4.
This case concerns an ex parte application by way of an originating summons filed by the applicant on 6 September 2024, pursuant to the GMO. The applicant is said to be the biological father (“
Father
”) of LB (“
Boy
”). The Father asks the court to grant him (i) the custody, care and control, as well as (ii) the guardianship, of the Boy, relying on the legislation that is set out at the title heading of this case, which I shall not repeat.
5.
The Father and the biological mother of the Boy are both Chinese Mainlanders. They were never married to each other. The mother gave birth to the Boy in September 2011 in Hong Kong.
6.
Importantly, the Father is
not
registered as the father in the birth certificate of the Boy. He explained that it is because he and the mother were not married to each other at the time when the Boy was born.
7.
Since his birth, the Boy was living with the mother (assisted from time to time by her maiden family) in Hangzhou, China. The Father continued to provide financial support to them.
8.
In 2017, the mother allegedly passed away. To prove her death, the Father merely provides a letter of 8 August 2024 written by the village authority of the village to where the mother belon
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