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HCAL 2063/2023
[2025] HKCFI 1974
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2063 OF 2023
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BETWEEN
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K (AN INFANT) BY HIS NEXT FRIEND, R
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Applicant
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and
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THE SECRETARY FOR JUSTICE
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Respondent
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and
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B
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1
st
Interested Party
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THE CHIEF EXECUTIVE OF
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2
nd
Interested Party
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THE HONG KONG SPECIAL ADMINISTRATIVE REGION OF THE PEOPLE’S REPUBLIC OF CHINA
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________________
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Before:
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Hon Coleman J in Court
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Date of Hearing:
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4 and 5 June 2025
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Date of Judgment:
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9 September 2025
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J U D G M E N T
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A. Introduction
1.
The applicant K is a lucky little boy. Now approaching four years old, K has two loving and caring parents – R and B respectively – who are deeply committed to each other (in fact they are married) and who together meticulously planned his birth and intended upbringing. The three of them form a tight family unit, in arrangements which have already been recognized as plainly in the best interests of K. But only one parent – namely B – is named on K’s birth certificate, and also only B is recognized to have any parental rights over K in law. Despite being a biological parent, R is neither registered nor so recognized. It may be wondered why.
2.
Actually, it is easy to explain why. It is because K was born to a female same-sex couple, and (1) Hong Kong birth registration does not permit or cater for registration of both women as K’s parents, and (2) the woman unregistered as a parent on the birth certificate has failed to obtain a declaration of parentage under section 6 of the Parent and Child Ordinance
Cap 429
(“PCO”) as might permit K’s birth to be re-registered.
3.
This is so, notwithstanding that a declaration has already been obtained that R is a ‘parent at common law’ – a term which I shall need to examine in detail, and in context. That declaration was given by Au Yeung J by her judgment in HCMP 447/2022 dated 12 September 2023,
[2023] HKCFI 2233
(“HCMP Judgment”).
4.
As a result, and acting by his ‘next friend’, K mounted a judicial review challenge by Form 86 dated 20 November 2023.
5.
It is perhaps worth emphasis at the outset that the application is made by K, and not by either of R and B (though one acts as his next friend and the other supports the application). Therefore, at various points in the analysis, it may be necessary to remember that the application must be viewed from the standpoint of K.
6.
On 23 November 2023, I granted to leave to apply for judicial review, on the papers. I later gave directions to bring the matter to a substantive hearing. On 1 March 2024, I gave leave for an Amended Form 86 (“AF86”).
7.
Each of K, B and R are referred to by an initial, as a result of anonymity orders granted by me.
8.
At the substantive hearing, heard over two days: (1) K was represented by Mr Nigel Kat SC, leading Mr
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