Securing equal custody of children for a same sex couple in Hong Kong

Rights for LGBTQ+ individuals and couples are very limited in Hong Kong, and same sex relationships are not recognised by law. This is a particular problem for same sex parents. In a landmark case for Hong Kong's LGBTQ+ community, Jocelyn Tsao managed to secure equal custody rights for same sex parents, paving the way for others. Jocelyn tells us about her experience below.

In May 2021, we received the judgment in the case AA v BB, a High Court case granting equal custody and guardianship rights of two children to the non-biological mother of a same-sex couple family. This was a legal first in Hong Kong and the case holds special significance for me because it was the first pro bono family law case at Withers Hong Kong. I had advocated for our firm to take this up with the firm belief that this is something we must fight for – both to protect the interests of the children as a family lawyer, as well as uphold equal rights for same-sex families. I still recall the excitement I felt at the time when my client first approached me with her predicament, and knowing this was something I wanted to work at in order to break new ground for the LGBTQ+ community.  

The case was a surprisingly smooth ride, even for the novelty of issues raised. I had thought there may be questions pertaining to the same-sex relationship, but to our relief, the judge approached the matter in a very fair-minded manner, aligning with our view that the “best interest of the child” calls for recognition of shared rights of custody and guardianship of the same-sex couple who love and care equally for their children. 

To me, this is just the first step in the path for rainbow families to enjoy the same equal rights and status as their heterosexual counterparts.  Many people in Hong Kong society desire to have children and derive the most joy from family life, and members of the LGBTQ+ community are no different.  If the purpose of family law is to protect families, then rainbow families should be included within the scope of the law’s protection too.