No rights for unmarried fathers in Hong Kong?

In the popular Netflix movie, Fatherhood, Kevin Hart plays a widowed father, setting out to raise his daughter on his own. As expected, his dedication towards his daughter ultimately prevails and they live happily ever after. Things would have been different if the movie was set in Hong Kong and if his daughter was an illegitimate child. The father’s lack of parental rights would have resulted in the childcare arrangements being in limbo – clearly a far cry from the expected happy ending.

Unlike a child’s birth mother, unmarried fathers currently do not have automatic parental rights over their children. Parental rights refer to those rights or authorities which relate to the upbringing or welfare of the child, such as the child’s school, what religion he identifies with, what medical decisions can be made on his behalf, etc.

The rationale for such discriminatory and unfair treatment towards fathers may be traced back to Hong Kong’s history, whereby it was believed that the lack of parental rights would promote the desire for marriage and prevent the interference of an “undesirable” father meddling in a child’s upbringing.

With the recent rise of parties choosing to practise cohabitation and the surge of children now being born outside of marriage, one would expect the treatment towards unmarried fathers to have improved. This is not the case.

For an unmarried father to obtain parental rights, he will need to seek a court order that deems him as the child’s father (known as a Section 3 Declaration). This applies even if the father’s name is on their child’s birth certificate. Factors the Court will consider include whether there is a stable relationship between the father and the child, the father’s commitment towards the child and any other reasons for the application. It is possible for such applications to be made on a joint basis between the parties to avoid the time and costs of attending a Court hearing. Unfortunately, if the mother does not agree with the father’s application, a substantive hearing will be required.

In practice, this means unmarried partners should jointly apply for a Section 3 Declaration promptly upon their child’s birth. Otherwise, without securing the father’s rights, issues such as the child having no rights to succeed their father’s estate on the father’s intestacy may arise. Further problems include the mother unilaterally leaving Hong Kong with the child, upon the breakdown of her relationship with the father. Fathers will then be left in a difficult position as their lack of legal rights will jeopardise the invoking of the Hague Convention on International Child Abduction, which aims to immediately secure the return of their children to their habitual residence. Urgent applications for the return of the child will then be required, but even if an Order is granted, their enforceability will depend on the then jurisdiction of the mother and child.

Seeing the success of Kevin Hart’s character in Fatherhood, it is sad to envision real-life fathers treating their children similarly whilst having no legal rights to fight for their children once the relationship ends. Unmarried fathers and partners are advised to consult a family lawyer to better understand their rights in order to fully protect both their, and most importantly, their children’s, interests.