In Hong Kong, the equivalent to the UK’s “parental responsibility” is the legal concept of “custody”, which represents the bundle of rights and authority of parents to make major decisions on behalf of a child concerning their education, development and general welfare.

Unlike the statutory definition in the UK, no specific definition of “custody” exists in Hong Kong legislation; rather, its legal meaning has been established through case law, most notably in the case of PD v KWW [2010] 4 HKLRD 191. Statutorily, the principle of equal “parental rights and authority” is set out in Section 3(1)(b) of the Guardianship of Minors Ordinance (Cap. 13) (GMO), which provides that mothers and fathers have equal parental rights and authority that can be exercised by either parent independently. The court’s statutory powers to grant custody are governed by Sections 3 and 10 of the GMO for non-matrimonial or unmarried situations, and Section 19 of the Matrimonial Proceedings and Property Ordinance (Cap. 192) (MPPO) during matrimonial proceedings such as divorce.

In Hong Kong, “custody” is frequently used as an umbrella term that collectively encompasses three distinct arrangements: (i) custody – the right to make major decisions regarding a child’s education, development and general welfare; (ii) care and control – daily care and physical control; and (iii) access – contact with the non-resident parent. Despite their routine use in family proceedings, these concepts are either not defined or do not even appear in the text of Hong Kong’s primary legislation. While “custody” is mentioned in the MPPO and the GMO, there is no statutory definition explaining what it actually entails. Meanwhile, “care and control”, which is sometimes seen as the most important component of parental right, is not mentioned or defined in the written ordinances, leaving the legal system to rely on judicial interpretation and common law case precedents to govern where children live.

In Hong Kong, a birth mother does not have to meet any special requirements to obtain the parental right because she automatically has the legal right of custody from the moment of her child’s birth under Section 3 of the GMO.

This automatic legal status applies regardless of her marital status, meaning that even if the child is born out of wedlock, the birth mother automatically holds the exact same legal rights and authority as she would if the child were legitimate.

Whether a father automatically obtains custody depends entirely on his marital status at the point of the child’s birth. If the parents are married, the father automatically shares equal custody rights and authority with the birth mother.

However, where a child is born out of wedlock, the father does not possess automatic legal rights as a parent per se and must actively apply to the court under Section 3(1)(d) of the GMO. To succeed in this application, he must satisfy the court of his paternity, after which the court may grant him some or all of the rights and authority the law would allow him as if the child were legitimate. Throughout this statutory process, the court regards the best interests of the child as the first and paramount consideration.

In Hong Kong, a non-genetic parent must secure legal custody through distinct legal pathways, all of which require proving that the arrangement is in the child’s best interests as the court’s paramount consideration, as per Section 3 of the GMO, which is known as the welfare principle.

Adoption

Adoption is discussed in detail in1.7 Adoption.

Foster Parents

Managed by the Social Welfare Department (SWD), Foster Care Services provide temporary, family-based residential care for children under 18 whose parents are unable to look after them, including short-term emergency placements capped at six weeks during crisis situations.

Legally, foster parents do not hold guardianship or adoptive rights over their foster children, nor does it create custody, guardianship or parental status. Under Section 10 of the GMO, standing to apply for child custody is restricted exclusively to the biological parents and the Director of Social Welfare (DSW), meaning foster parents cannot independently apply for custody unless the DSW acts on their behalf.

Guardianship

Under GMO, a privately appointed guardian only obtains parental rights and authority upon legally assuming the office, which requires strict compliance with statutory preparation and activation rules.

First, a separate, standard appointment form must be completed for each individual guardian, containing the names, addresses, and identity card numbers of the appointing parties, as well as the names and identity card numbers of the appointees. The form must formally confirm that the minor’s views have been taken into account as far as practicable in light of their age and understanding, and due consideration must be given to the child’s relationship with the intended guardian. To have legal effect, the document must be dated, signed by the appointer (or by someone in their presence and at their direction), attested by two witnesses, and accepted by the appointee either expressly, ideally by signing the form, or impliedly through conduct.

Once validly appointed, the guardian automatically assumes guardianship upon the appointer’s death only if the appointing parent or guardian held a custody order or lived with the minor immediately before dying, and the minor has no surviving parent or other guardian. In all other circumstances, the appointee has no automatic rights and must formally apply to the court to assume guardianship. In these court proceedings, the court may order the appointee to act jointly with a surviving parent, act to the exclusion of a surviving parent, act only after a specified event, or be removed entirely. Separately, under Section 34 of the Protection of Children and Juveniles Ordinance (Cap. 213), a juvenile court can bypass private appointments entirely and commit the care of a child or juvenile deemed in need of care or protection to any relative or non-relative who is willing to undertake their care.

Surrogacy

Pursuant to Section 12 of the Parent and Child Ordinance (Cap. 429), a married couple, with one of them being a gamete donor, may obtain a parental order to transfer legal parenthood to themselves by satisfying several strict statutory requirements, even where one parent lacks a genetic link to the child.

To qualify, the applicants must be lawfully married, and at least one spouse must have provided the gametes used to create the embryo. Both spouses must be at least 18 years old when the order is granted, and the application must be submitted within six months of the child’s birth. Additionally, at both the time of application and the granting of the order, the child must reside with either or both applicants. At least one spouse must also be domiciled in Hong Kong, habitually resident there for the preceding year, or possess a substantial connection to the territory.

Furthermore, the court must be satisfied that the surrogate mother and the father of the child have freely and unconditionally consented to the order with full understanding. To ensure genuine consent, the surrogate mother’s agreement is legally invalid if given within six weeks of birth, save for a situation where she cannot be found or lacks capacity so that consent is not required at all. Finally, no money or benefit, other than reasonably incurred expenses, may be paid or received in relation to the surrogacy, handover, or order, unless authorised by the court. This restriction applies regardless of whether the surrogacy occurred in Hong Kong or abroad.

As noted in 1.2 Requirements for Birth Mothers and 1.3 Requirements for Fathers, while the birth mother will obtain the right of custody automatically, that of the father solely depends on the parents’ marital status at the time of the child’s birth, rendering their marital status at the time of conception legally irrelevant.

For the birth mother, marital status is entirely irrelevant as she automatically has the rights and authority from the moment of birth regardless of whether she is married.

For the father, however, being married to the mother at the point of birth is critical: married fathers immediately obtain automatic, equal rights and authority alongside the mother. In contrast, if the parents are unmarried when the child is born, the child is legally illegitimate, and the father has no automatic rights and authority. In such cases, the father must actively apply under Section 3(1)(d) of the GMO to establish his paternity and be granted some or all of the rights and authority he would have automatically held had they been married at birth.

As same-sex marriage is not legally recognised in Hong Kong, same-sex couples do not automatically enjoy the same parental rights as heterosexual couples even if both partners consent to co-parenting, and only a biological parent would be the legal parent as of right. Because of this, a non-biological same-sex partner cannot rely on automatic legal status and must instead apply to the court to formalise their parental rights.

In Hong Kong, while current legislation does not automatically grant custody to same-sex partners, the courts evaluate non-biological parents in same-sex families on the same basis as in the heterosexual families, awarding guardianship, joint custody, and joint or share care and control whenever it serves the child’s best interests.

The case of AA v BB [2021] HKCFI 1401 serves as a good example, where the non-biological lesbian spouse was appointed as the guardian of her children and was granted joint custody along with joint care and control of them, following the social investigation reports confirming her profound bond with and parental role toward the children. The result of AA v BB affirms the principle that the primary consideration of the Court is to prioritise the children’s welfare regardless of the parent’s sexual orientation. In a recent case, YCR also known as CRY v YSJ nee SJE [2025] HKFC 96, a lesbian mother was granted joint custody and sole care and control in a relocation application, regardless of her sexual orientation.

These decisions demonstrate that the court’s position on sexual orientation in custody matters is well-established. Ultimately, the cornerstone of Hong Kong family law regarding custody remains the welfare principle – the child’s best interests are the court’s first and paramount consideration, which remains equally applicable to disputes between parents and non-parents (referred to in J & Another v C & Others [1970] AC 668 cited in AA v BB).

Adoption is the legal mechanism by which parental rights and responsibility are permanently transferred from birth parents to adoptive parents. In Hong Kong, all adoptions must comply with the Adoption Ordinance (Cap. 290) (AO), under which the child’s best interests serve as the first and paramount consideration as per Section 8.

Prospective adoptive parents can acquire legal custody by securing an adoption order from the District Court under the AO. The qualifications are set out in Section 5 of the AO. Applications must be made either by married couples jointly or by a single individual – legally excluding unmarried cohabiting couples from applying together. A sole applicant must generally be at least 25 years old, or 21 years old if being a relative, or the parent to the child, or married to a parent of the child. Married spouses making the application must both be at least 21 years old unless one is a biological parent, and sole male applicants are barred from adopting female children unless exceptional circumstances justify the measure. Both the child and the applicants must reside in Hong Kong, and the child must have been under the applicants’ continuous actual custody for a period of at least six months (which is reduced to 13 weeks if one applicant is the birth parent of the child) before the court can make an order.

Beyond these thresholds, the process requires the formal consent of the biological parents, which can only be executed once the infant is at least four weeks old. The potential adoptive parent(s) must also go through a stringent vetting process involving medical checks, criminal background screenings, and a comprehensive home study by a qualified social worker.

Ultimately, before finalising the order, the court must be satisfied that the adopters are fit and proper, that no financial rewards were exchanged, and that the placement strictly serves the child’s best interests.

Under custody orders routinely issued by the Family Court, it is not uncommon that a minor child is prohibited from being removed from the jurisdiction without either the mutual parental consent or court permission. Therefore, if a parent wishes to permanently relocate a child of the family to a new country, they must obtain the consent of the other parent and, if ongoing legal proceedings have been issued, leave from the court under the Child Abduction and Custody Ordinance (Cap. 512). If both parents agree to the relocation of the child, the process is usually smoother in terms of the Court’s approval. Therefore, it is essential for parents to communicate openly and honestly about the relocation, bearing in mind the best interest of the child as the first and paramount consideration.

If a parent is unable to secure the necessary consent for relocation from the other parent, the dispute must be resolved by applying to the court for leave to permanently remove the child from the jurisdiction, or, if the child has already been removed, for leave to remain outside Hong Kong. In determining whether to grant such permission, the court exercises wide discretion, treating the child’s best interests as the first and paramount consideration. Guided by the English landmark case Payne v Payne [2001] EWCA Civ 166 (adopted in Hong Kong through K v W [2006] HKFLR 292), the court will conduct a thorough appraisal of the proposal, evaluating whether the relocation proposal is both genuine and realistic, reviewing the motivations behind the other parent’s opposition, and assessing the impact that a refusal might have on the primary carer.

Where appropriate, the court may adjourn the matter for Children Dispute Resolution (CDR), during which the judge hears from both sides and offers indications and suggestions to the parties. As the same judge presides over both the CDR hearing and any subsequent trial, the parties are strongly advised to be co-operative and reasonable by heeding the judge’s suggestions. If no agreement can be reached during the CDR, the matter will proceed to trial before the same judge.

Alternatively, parents can attempt to bypass a costly and hostile court battle by resolving the conflict out of court through negotiation and family mediation. Despite the high-conflict nature of relocation disputes, a successful mediation can produce a detailed settlement agreement regarding travel, living arrangements, and future contact, which the parents can then submit to the court to be formalised as a consent order.

Due to Hong Kong’s compact size, concepts of relocating across states or distant regions do not apply. A primary caregiver does not need court permission or leave to relocate with a child to another district within the territory. However, it is standard practice to inform the other parent in advance, as maintaining access to both parents remains in the child’s best interests. If an internal move significantly disrupts existing visitation or schooling, the non-custodial parent may apply to the court to adjust custody or access arrangements accordingly.

As noted in 2.1 Whose Consent Is Required for Relocation?, custody orders sometimes contain provisions prohibiting a parent from removing a child from the jurisdiction. Where such an order is in place, the relocating parent must obtain the other parent’s prior consent. Similarly, where legal proceedings are ongoing, the parent seeking to remove the child must obtain leave from the court.

Conversely, in the absence of an express court prohibition or pending legal proceedings, for example in the exceptional situation where sole custody is granted to the custodial parent and no rights of access are granted to the non-custodial parent, the custodial parent may freely remove the child from the jurisdiction without the other parent’s consent.

If a child has been wrongfully removed from Hong Kong, the available legal recourse and the specific procedures to secure their return are fundamentally determined by whether the destination country is a contracting party to the Hague Convention.

The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”), which aims at protecting children from the harmful effects of international abduction by a parent by encouraging the prompt return to the places of their habitual residence, and to secure the effective rights of access to a child, applies in Hong Kong and has force of law through the Child Abduction and Custody Ordinance (Cap. 512) (CACO). The Child Abduction and Custody Ordinance was enacted to implement the Convention in Hong Kong in 1997. The Central Authority handling claims of international child abduction in Hong Kong is the Department of Justice, on behalf of the Secretary for Justice.

Convention Countries

If the child has been taken to a Hague Convention signatory country, the left-behind parent can initiate formal return proceedings. The Department of Justice provides that the wronged parents have the following resorts:

• to send an application for assistance to the Central Authority of Hong Kong, which is the Department of Justice;
• to send an application for assistance directly to the Central Authority of the Contracting State or territory where the child is; or
• to directly commence foreign judicial or administrative proceedings (it is advisable to instruct lawyers for legal representation).

To support this foreign application, the parent can apply to the Hong Kong Court of First Instance for a formal declaration to be provided to the receiving country under Section 10 of the CACO, confirming that the removal was indeed wrongful under Article 3 of the Convention. Furthermore, the left-behind parent can contact the Department of Justice, which will actively co-operate and liaise with the Central Authority of the receiving country to locate the child, protect their safety, and facilitate either a voluntary return or the prompt initiation of foreign court proceedings.

Non-Convention Countries

Conversely, if the child is taken to a non-Hague Convention country, the recovery process is generally more complex, requiring the parent to engage foreign lawyers to pursue return under local domestic laws.

Mainland China

However, a distinct framework exists if the child is taken to Mainland China, which is not a contracting state to the Hague Convention. Under the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (Cap. 639), which came into force on 15 February 2022, a custody order made in Hong Kong can be reciprocally recognised and enforced in the Mainland. Consequently, if a child is taken to the Mainland in breach of a Hong Kong custody order, the left-behind parent may request the child’s return to Hong Kong.

Cost

Article 26 of the Convention prohibits Central Authorities from charging applicants for administrative services, court proceedings, or legal counsel fees, though they are permitted to require payment for expenses incurred in implementing the return of the child. However, the same article provides that a Contracting State can invoke an opt-out clause to exempt itself from covering court or legal counsel costs, except to the extent those expenses are covered by its own domestic legal aid system.

Exercising this mechanism, Section 13 of the CACO provides that neither the Secretary for Justice nor any other authority in Hong Kong will bear the legal costs of Convention proceedings, except where the party qualifies for Hong Kong legal aid. Given the high qualification threshold for legal aid in Hong Kong, which requires applicants to pass both a merits test and a means test, applicants in most situations must bear their own legal costs.

Hong Kong’s Approach to Hague Convention Return Principle

In theory, as noted in 3.2 Steps Taken to Return Abducted Children, Hong Kong aims at securing the prompt return of the abducted children – but what actually happens in real cases is more mixed. In an early case, S. v S. [1998] 2 HKC 316, the judge held that speed is of the essence in abduction cases, refusing to let lawyers cross-examine experts, and indicated that even if a parent proved the child faced a grave risk of physical harm, the court would still exercise its discretion to order the child to be returned because abduction of a child should not be encouraged. In a similar case, LPQ v LYW, HCMP 2831/2014, the court applied the UK’s narrow Re E test – placing the burden on the abducting parent and requiring the risk to be “grave” rather than merely “real”, thereby setting a significantly higher threshold for any parent resisting return.

But in several other cases, parents have successfully avoided returning the child:

• In EW v LP, HCMP1605/2011, the court refused to send the child back because of the unexplained inaction and delay by the father that the child had already settled into a new life in Hong Kong. The court found that summary return of the child could not serve the objection of the Hague Convention nor is it in the interest of the child.
• In LCYP v JEK [2015] 5 HKC 293, the Court of Appeal upheld a refusal to return based partly on the “child’s objection” defence and partly on a re-finding that habitual residence had shifted to Hong Kong.
• In BMC v BGC [2020] HKCA 317, which involved a US Green Card dispute, the court found the child’s habitual residence had never left Hong Kong in the first place and, alternatively, that the father had acquiesced to non-return.

Notably, the most significant escape valve from mandatory return has turned out not to be the Article 13 defences themselves but Hong Kong’s adoption of the modern UK/EU habitual-residence test, which requires only that residence acquire a degree of “stability” rather than a settled, permanent parental intention – making it considerably easier for children to be found already resident in Hong Kong and thus outside the Convention’s reach altogether. Overall, Hong Kong’s doctrine remains strict on paper, but delay, evolving habitual-residence jurisprudence, and fact-specific findings on risk or consent have repeatedly defeated return in practice.

Number of Applications

According to INCADAT – the International Child Abduction Database maintained by the Permanent Bureau of the Hague Conference on Private International Law – there have been at least 11 international child abduction cases in Hong Kong since 1998, yielding the mixed results noted above.

Non-Convention Country Application

If the child is being removed to a non-Convention country, the Convention, and the CACO, do not apply under such circumstances. The Department of Justice advises, in light of such circumstances, that the wronged parent should seek legal advice immediately from the local lawyer(s) of the state that the child has been removed to.

Costs and Average Timescales

Again, predicting the exact timeframe and costs for any given case is difficult as these factors vary significantly depending on the Contracting State’s legal system. Proceedings can easily stall or draw out if the taking parent opposes the application or if the child cannot be located.

This is not applicable as Hong Kong is a signatory to the Hague Convention.