The practice of cohabitation and having children prior to, rather than after, marriage has become popular with the millennials. However, what unmarried fathers may not know is that there is no legal presumption of paternity when their child is born outside of marriage. Fathers in that situation may find themselves in a pickle when the relationship turns sour and the mother decides to leave with the child and relocates to another country.
As the law currently stands, an unmarried father does not have the same legal rights as the mother. To have equal legal rights, he needs to make an application to the court for an order that deems he is the father and entitles him to parental rights (known as Section 3 Declaration, under the Guardianship of Minors Ordinance). There are a few reasons for the discrepancy, mostly due to the varying reasons for children being born out of wedlock ranging from an unintentional birth to a fully committed family arrangement. With more people choosing not to marry and to have a family, there are more cases which fall into the second category, making it patently unfair for the father to not have any legal rights to his child.
Parental rights include custody rights – the right to be consulted over the important decisions in a child’s life, for example which school he goes to, where he lives, what religion he identifies with, what medical decisions can be made on his behalf, etc.
The common problematic scenario happens when the relationship breaks down and the mother decides to leave Hong Kong without consulting the father. This is especially the case when the Covid pandemic and the social-political climate of Hong Kong have motivated ex-patriate parents to relocate to their home country. When the father has legal rights to his child, he can invoke the Hague Convention on international child abduction to immediately secure the return of his child through cooperation between the central authorities of the relevant countries. However, for unmarried fathers who did not apply for a section 3 declaration, invoking the Hague Convention will be difficult or impossible. In this situation, the only remedy would be for the unmarried father to apply to the local court of the child’s habitual residence to secure a return order, but even then he may face certain difficulties, particularly with enforcement. Unmarried fathers are therefore advised to apply for what is known as a section 3 declaration under the Guardianship of Minors Ordinance. Where there is clearly a stable relationship between the father and the child, the court will almost certainly grant this. The court will consider factors like the degree of commitment which the father has shown towards the child; the degree of attachment which exists between the father and the child; and the reasons of the father applying for the order.
However, the fact that the unmarried father does not have formal legal rights does not give unmarried mothers carte blanche to ignore the father’s rights and take their child away without his consent. This kind of conduct will not only be frowned upon by court but there will be repercussions. These days where so many families cohabit rather than marry, it is best to consult a family lawyer who has experience in such cases to make sure that all parties concerned fully understand their rights and responsibilities towards their children.
If you have any queries, please feel free to reach out to your usual Withers contact or Jocelyn Tsao .