Two current Hong Kong instances have highlighted the developing dissonance among own family regulation norms in Hong Kong and other jurisdictions. The first entailed a venture to the Hong Kong Director of Immigration’s refusal to recognize an distant places equal-sex civil partnership as analogous to marriage. The 2d worried a parental order for a kid born distant places as a result of a surrogacy association to an single commissioning couple. These two instances challenged a specific conceptualization of the circle of relatives in Hong Kong regulation: a choice for a heterosexual, married couple as the basis for the own family unit. However, other commonplace law jurisdictions would recognize the candidates’ claims to circle of relatives reputation, as do global human rights concepts. This article explores the scope and intersection of Hong Kong’s family law values, its private international law obligations, and the ability for invoking the general public policy exception in these instances. In doing so, it assessments the volume to which Hong Kong regulation’s conceptualization of the “Ideal Family” can be legitimately imposed to oust the claims of the “Other Family” to felony recognition.
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Asian Journal of Comparative Law , Volume eleven , Special Issue 2: Special Issue on Vietnamese and Comparative Constitutional Law , December 2016 , pp. 343 – 365
DOI: https://doi.Org/10.1017/asjcl.2016.24[Opens in a new window]
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© National University of Singapore, 2016
I. CHALLENGES TO HONG KONG LAW’S CONCEPT OF THE “IDEAL FAMILY”
Recently in Hong Kong, instances have come earlier than the courts that have highlighted the dissonance between Hong Kong’s personal home circle of relatives regulation and that of different jurisdictions. These instances deliver upward push to viable conflicts of legal guidelines troubles and, more extensively, they open up debates at the potential for alternate to the shape and content material of home circle of relatives regulation norms.
In the primary case, QT v Director of Immigration,Footnote 1 Hong Kong’s immigration authorities refused to confer dependant fame on the same-sex civil partner of a woman who were granted a visa to live and work in Hong Kong. The couple’s civil partnership is legally recognized in England and Wales, their us of a of dwelling house, and that they have complied absolutely with the essential formalities of English law. Moreover, considering that 2014, the regulation in their home allows their civil partnership to be converted right into a equal-sex marriage.Footnote 2 The partner of the visa-holder applied for judicial evaluation to challenge 婚姻介紹所邊間好 the Immigration Department’s refusal to recognize her as a dependant of her visa-maintaining partner. The Court of First Instance held that the applicant became unsuccessful on the idea that the Director of Immigration has not discriminated towards the applicant. The courtroom held, among other reasons now not without delay applicable to this text, that a registered civil partnership among ladies isn’t sufficiently analogous to a marriage to be recognized through Hong Kong regulation.Footnote 3 The case is now open to enchantment. It raises the question of whether or not the Court of First Instance’s choice is accurate while considered from the perspective of conflicts of laws responsibilities, specially, the popularity of competing circle of relatives law norms from different jurisdictions.
The 2d case, Re D (Parental Order: s 12 Parent and Child Ordinance (Cap 429)),Footnote four issues a pair’s utility for a “parental order” with regards to their toddler. The infant become born in America as a result of a industrial surrogacy association at a time while the couple were single. Whilst the arrangement became prison in America, each the single repute of the couple and the industrial nature of the association made the surrogacy illegal in Hong Kong.Footnote five Consequently, the opportunity of a statutory “parental order” being made by way of the Hong Kong courts in favour of the commissioning couple is rendered impossible, leaving the couple and the child in a kingdom of criminal limbo. In those proceedings, Hong Kong’s Family Court, which sits at the extent of District Court, heard an application to switch the case up to the High Court, given the gravity and the unprecedented nature of the problems raised. The utility to transfer changed into successful, but to this point the case has not been listed to be heard.