Guardianship & Custody: a milestone in co-parenting for same-sex partners

Guardianship & Custody: a milestone in co-parenting for same-sex partners

June 29, 2021

On 21 May 2021, the Court of First Instance handed down the judgment in AA v BB [2021] HKCFI 1401 granting guardianship, joint custody and shared care and control to the non-biological mother of children born to her prior same-sex partner. This marks a significant legal development towards greater equality for the LGBTQ community in Hong Kong.

Many same-sex couples hope to form a family and may resort to reproductive technologies such as donor insemination. However, as same-sex marriage and civil partnership are not recognized under Hong Kong laws, the non-biological parent of a same-sex family necessarily finds herself in a predicament where she is in every respect the mother of her children and yet not seen as such under our laws.  

In AA v BB, the Applicant and the Respondent were in a same-sex relationship during which two children were born to their family through donor sperm insemination. The Applicant is the birth mother of both children. Following their separation, they transitioned into a co-parenting arrangement enabling equal involvement in the children’s lives. They therefore sought to have the Respondent’s status as a parent legally recognized so that both her and her children’s’ rights could be protected against the vicissitudes of life.  

With the benefit of a Social Welfare Report, the Court confirmed the parental role played by the Respondent in the children’s lives and confirmed that it was in the best interests of the children for the Applicant and the Respondent to have joint custody, care and control. The Court further exercised its inherent jurisdiction to appoint the Respondent as a guardian of the children to act and exercise any guardianship rights jointly with the Applicant.

AA v BB marks a significant milestone in Hong Kong in allowing same-sex partners to be granted parental rights over their children. 

Currently, many same-sex families exist amorphously with an invisible parent, enduring practical impediments whenever form and law requires consent from their children’s legal parent/guardian, and having to feel anxious about indeterminate futures with respect to the non-biological parent. AA v BB opens a doorway for same-sex families to achieve at long last, the same status as would be afforded to heterosexual couples, recognizing that same-sex families are really, no different from any other family, and that the best interests of a child is and should always be the overarching priority.

Evelyn Tsao, Partner of Patricia Ho & Associates, represented the Applicant AA.