MR C AND ANOTHER v. MR D AND ANOTHER

ADOPTION CASES NO. 2 & 3 of 1992

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H E A D N O T E

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ADOPTION ORDINANCE : CAP.290 - ADOPTION RULES - ADOPTION APPLICATION - SPECIFIC FORM OF CONSENT - APPOINTMENT BY DISTRICT COURT OF GUARDIAN AD LITEM OTHER THAN DIRECTOR OF SOCIAL WELFARE - PAYMENT' BY PROSPECTIVE ADOPTERS TO GUARDIAN AD LITEM -INDEPENDENCE OF GUARDIAN AD LITEM - RULES 8 9 AND 13 OF ADOPTION RULES - DUTY OF GUARDIAN AD LITEM TO INVESTIGATE - EXPERIENCE IN RUNNING CREDIT INVESTIGATION BUREAU AND INVESTIGATING CORRUPTION ON BEHALF OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION NO QUALIFICATION FOR APPOINTMENT AS GUARDIAN AD LITEM TO INVESTIGATE PROPOSED ADOPTION - GUIDELINES TO DISTRICT COURT ON TYPE OF ORGANIZATION OR PERSON SUITABLE FOR APPOINTMENT AS GUARDIAN AD LITEM IN ADOPTION APPLICATION.

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Mr and Mrs C ("the grandparents") lodged an application in April 1992 with the District Court to adopt the two infant daughters of their son ("the father") from his dissolved marriage to their mother. As the adoption application was on the basis of "specific consent" from the father and mother to the proposed adoption, the grandparents, by virtue of Rules 8 and 9 of the Adoption Rules made under the Adoption Ordinance, Cap.290.were entitled to ask the District Court for the appointment of a guardian ad litem ether than the Director of Social Welfare ("the Director"). The person put forward by the grandparents, and appointed by the District Court, as guardian ad litem, Mr D, listed his qualifications for such an apointment in his affidavit in support as four years' experience running a credit investigation bureau, and thirteen years experience prior to that, investigating corruption as an officer of the Independent Commission Against Corruption. Rule 13 of the Adoption Rules under the heading "Duties of Guardian Ad Litem" provides "It shall be the duty of the guardian ad litem to investigate as fully as possible all circumstances relevant to the proposed adoption with a view to safeguarding the interests of the infant ...."

Mr D, in his affidavit filed before his appointment, had fully and frankly revealed that he was being paid $5,000 plus $500 for expenses by the prospective adopters to accept the appointment. His affidavit^-further disclosed tht he had been pa^l'id to accept two similar appointments as guardian ad litem in adoption proceedings in 1991 and, at the time of making his affidavit, had another similar application pending before the District Court.

Because the mother had failed to give her consent to the proposed adoption, the District Court, acting under Rule 17(2) of the Adoption Rules, transferred the proceedings to the High Court.

On transfer to the High Court, the Director intervened in the proceedings, seeking the removal of Mr D as guardian ad litem on the ground that the District Court had erroneously exercised its discretion under Rule 9 by appointing Mr D who was not suitable to be a guardian ad litem in adoption proceedings because he

(i)     lacked appropriate qualifications to carry out the duties required in that office; and

(ii)     was not seen to be independent in safeguarding the interests of the infants because he was making a business'out of being a guardian ad litem, and could not avoid the appearance of being influenced by the need to satisfy the wishes of his clients, prospective adopters.

The director sought the substitution of himself or the Official Solicitor for Mr D as guardian ad litem, and asked for guidelines on who was suitable for appointment as a guardian ad litem in adoption proceedings. Mr D did not oppose such substitution.

Held :    The District Judge's exercise of his discretion in appointing Mr D as guardian ad litem in adoption proceedings was indefensible because of the latter's lack of appropriate qualifications and because he was -- ---not'seen to be independent in the exercise of his duties : R. v. Cornwall. County Council ex parte Cornwall & Isles of Scilly Guardian Ad Litem and Reporting Officers Panel [1992] 1 WLR 427, and Cadman v. Cadman [1982] 3 FLR 275 applied.

In substitution for Mr D, the court appointed the Director as guardian ad litem.

The court gave guidelines for District Judges that, as an alternative to the Director, only voluntary organizations specializing in adoptions or individuals with special training in relation to children such as social :corkers teachers or clinical psychologists shoul.d be appointed as guardians ad litem in adoption proceedings. In the case of such individuals, they should normally only be appointed if they have the backing of an organization with sufficient resources to enable proper investigations to be made.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ADOPTION CASES NO 2 & 3 of 1992

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J U D G M E N T

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1. The present case concerns an application by Mr and Mrs C ("the grandparents") to adopt the two infant daughters, A and B, now aged nine and eleven, respectively, of their son, Mr E, ("the father"), from his now-dissolved marriage to Ms. F, ("the mother").

2. In or about the year 1975, the mother, then single, and the father, who was married to someone else at the time, started cohabiting. They had met at an electronics factory in Kowloon where they both worked, he as an engineer, and she in some lesser capacity.

3. After divorcing his first wife, the father married the mother on 4th September 1981. A few days before that, on 26th August 1981, their first child, the elder of the sisters now up for adoption, was born. There was at first nothing unusual about the way her parents cared for,her. That changed after the couple in February 1983 had their next child,the other daughter who is now up for^- adoption.

4. For unexplained reasons, the couple broke up almost immediately after the birth of that second daughter, and have lived apart ever since, divorcing in 1988.

5. Within a matter of days or^-weeks of the birth of the second daughter, the couple handed both girls over to the father's parents to bring up, a situation which has continued to this day.

6. Fortunately for the girls, their grandparents have enjoyed a stable family life since their marriage as long ago as 1946. They had four children: the son, whose two girls they now want to adopt, and three daughters.

7. The grandparents' family is a close one. The grandparents and their children all keep in touch with each other, although they are scattered around the world, with their son now living and working in Guangzhou - he is now remarried and has three young children by that marriage - a daughter settled in Holland, another in Canada, and the other remaining in Hong Kong.

8. The grandparents themselves now have a foot in two camps. Half the year they reside in Hong Kong where they own a reasonably comfortable, three bed-roomed flat in a popular private residential complex, and the other half they spend in Toronto where they own a spacious house.    

9. This alternating between Canada and Hong Kong by _.the grandparents has been going on since 1989 with a view to their acquiring Canadian nationality. They fall into the category of entrepreneurial migrants who gain entry into Canada on condition-they open a business there. That they have-.done by the grandmother taking a one third share in a newly-opened business in Toronto. That is producing an income of approximately C$25,000 per year for the grandparents. The grandmother had been in a similar line of business in Hong Kong, selling out her share in 1990. The grandparents also own a block of flats in Canada, bringing them in an income of C$3,000 per month.

10. Besides opening a business, entrepreneurial migrants to Canada need to satisfy a residential requirement before qualifying for permanent residence in Canada. Stated broadly, they have actually to reside in Canada for three years to thus qualify. Whilst the three years' period need not be uninterrupted, the migrant will losethe right to land and remain in Canada if absent for more than six months in any year.

11. The grandparents have been confronted with a cruel dilemma. They want to get the right to live in Canada in anticipation of changes in Hong Kong after 1997. On the other hand they do not wish to be separated from their two grand-daughters who, so far, have no entitlement to reside in Canada.

12. During such time as the grandparents are away in Canada, the two grand-daughters carry on residing in the grandparents' Hong Kong flat where they are looked after by a Filipina maid whom the grandparents employ. There is also the grandparents' daughter residing in Hong Kong to keep an eye on her two neices.

   Weekly phone calls are made from Canada by the grandparents to the two grand-daughters to check that all is well.

13. Even while away in Canada, the grandparents make all the decisions concerning the upbringing of the two grand-daughters.

14. There is no suggestion that-the grandparents have tried to take the two girls away from either their father or mother. Far from it. The grandparents are willing to hand the two children back to either the father or the mother provided the parent has a viable plan for the girls' upbringing. The reality is that both parents have abdicated all responsibility for their daughters since mid-1983. The father has only visited them once a year since re-marrying in 1989. Before that, he visited them more frequently, but took no responsibility for them beyond giving money to the grandparents for the girls' support. In fact, he has lived away from Hong Kong since his daughters were entrusted to the grandparents to bring up.

15. The mother has been an equally shadowy figure in the upbringing of her daughters. As far as I can gather, she rarely visited her daughters between 1983 and 1990. For a few months, however, in early 1990, she did show a burst of interest in the girls.

16. At the time the mother and father divorced in 1988, the father got custody, although he did not live in Hong Kong, while the mother was granted reasonable access to their daughters. In 1990, the mother applied to have that order varied by her being granted custody. In connection with that application by the mother, the Children's Custody Unit of the Social Welfare Department investigated the position, and concluded that, as between the mother and the father, it would be in the best' interests of the children for the mother to be granted custody.

17. However, for unexplained reasons, the mother's interest faded, and she, abandoning her custody application, left Hong Kong to live in America in mid-1990.

18. For many months, so such material as is before me indicates, neither her two daughters, nor the grandparents even knew where she was, but, towards the end of 1991, she commenced corresponding with her daughters from America. That correspondence, insofar as it as been brought to my attention, in no way questions that thechildren should continue to be brought up by the grandparents if that is what the grandparents want.

19. By default as it were, the children have finished up with their grandparents because no one else so far has been prepared to shoulder responsibility for them. Neither parent wants to, nor does the aunt living in Hong Kong to whom I have made reference. Nobody else is suggested.

20. Although I have spoken in terms of the grandparents finishing up as care-givers to their grand-daughters by default, I immediately hasten to dispel an notion that there has been anv reluctance at any stage on the part of the grandparents to serve as surrogate parents for their grand-daughters. The grandparents clearly have the deepest affection for their grand-daughters, a feeling which their grand-daughters fully reciprocate towards them. There is nothing more that the two girls want than to live with the grandparents all the time.

21. It is because the grandparents' love is unselfish that they _'would not stand in the way of the girls going back to a parent if that appeared to be in the children's best interests.

    so that their two grand-daughters can be with them the whole time, rather than languishing in Hong Kong for six months of the year while the grandparents are away in Canada fulfilling their immigration time-requirement, the grandparents decided to apply to adopt them. As the children are under the age of fourteen, there would be no impediment under Canadian immigration regulations to their entering Canada, once adopted, with their adoptive parents.

22. With a view to adopting the two girls, the grandparents commenced adoption proceedings in Hong Kong earlier this year.

23. As required by s.4A(1) of the Adoption Ordinance, Cap. 290, ("the Ordinance") and Rule 5 of the Adoption Rules ("the Rules"), the proceedings were started by taking out the prescribed form of originating summons in the District Court. That was done on 24th April 1992.

24. In all adoption proceedings, there has to be a guardian ad litem to safeguard the interests of the child. Adoption has a somewhat chequered history. In the past, there was commerce in children which resulted in unsuitable candidates gaining control over children's lives through adoption. To forestall abuses, the law has developed in a way which seeks to ensure that, on every adoption application, there will be an independent, disinterested individual or entity, qualified to look after the best interests of the child by checking all the circumstances of the proposed adoption, and reporting on them to the court considering the adoption application. That person or entity is the guardian ad litem. The guardian ad litem's duty is to the child and the court alone; never to the adoptive parents.

25. By s.12(3) of the Ordinance, the guardian ad litem is charged "... with the duty of safeguarding the interests of the infant before the Court."

26. The duties of the guardian ad litem are spelt out in Rule 13 and the Second Schedule to the Rules. I now set them out as far as necessary for the purposes of the present case:

"13. It shall be the duty of the guardian ad litem to investigate as fully as possible all circumstances relevant to the proposed adoption with a view to safeguarding the interests of the infant before the Court and to make a report to the Court for that purpose; and in particular it shall be his duty-

(a)     to make inquiries as to all matters alleged in the applicant's statement and as to the additional matters specified in the Second Schedule and to report to the Court upon them;

(b)     to interview (either by himself or by an agent appointed by him for the purpose) every individual being an applicant for the order,or mentioned in the applicant's statement as a person to whom reference may^- be made, or a person on .whom notice of the application is required to be served under rule 16, or, where notice is required to be served on a body of persons, the appropriate officer of such body.

SECOND SCHEDULE

Additional matters subject to investigation and report by guardian litem

PART I

'THE APPLICANT

1.     In the case of a joint application, how long the applicants have been married.

2.     In the case of an application by one only of 2 spouses -

(a)     whether the other spouse consents to the application; and

(b)     why he or she does not join in the application.

3.     What other children (including adopted children) the applicant has.

4.    What is the age and sex of all children living in the home of the applicant, and what is their relationship to the applicant.

5.     What^-number of living rooms and bedrooms are contained in the home of the applicant, and what is the condition of the home.

6.     What are the means of the applicant.

7.     Whether the applicant suffers or has suffered from any serious illness, and whether there is any history of tuberculosis, epilepsy or mental illness in his or her family.

8.     Whether any person specified in the applicant's statement as a person to whom reference may be made is a responsible person and recommends the applicant without reservation.

9.     Whether the applicant understands that an adoption order is irrevocable and that the order if made will render him or her responsible for the maintenance and upbringing of the infant.

PART II

THE INFANT

10.     Whether the infant has any right to or interest in any property.

11.     Whether the infant (if or an age to understand the effect of an adoption order) wishes the order to be made.

PART III

THE PARENTS

12.     Whether the mother consents to the adoption and identifies the birth certificate (if any) attached to the applicant's statement as the birth certificate-of the infant.

13.     Whether the father consents to the adoption.

14.     If the infant is illegitimate, whether an order has been made adjudging any person to be the putative father of the infant, or an agreement to contribute to the maintenance of the infant has been made by a person acknowledging himself to be the father of the infant, and in either case whether that person consents to the adoption.

15.     When did the parent or parents part with the infant, and to whom.

16.     What are the reasons of the parent or parents for consenting to the adoption, and whether his or their consent is given without pressure from other persons.

17.     Whether the parent, or each of the parents, understands that an adoption order is irrevocable, and that the order if made will deprive him or her of all rights in respect of the maintenance and upbringing of the infant.

18.     Where the applicant's statement requests the judge to dispense with the consent of the parent, or either of the parents, on the ground that he or she cannot be found, what steps have been taken to trace him or her."

27. As part of its policy of discouraging traffic in children, the law makes it a criminal offence for a prospective adopter to pay money for the adoption of a child, except with the sanction of the court: see ss.8(1)(c) and 22 of the Ordinance. Likewise, it is a criminal offence to receive money without the court's sanction in connexion with a proposed adoption: s.22 of the Ordinance.

28. A further measure to eradicate improprieties from the^-adoption process is to be found in s.23 of the Ordinance which makes it a criminal offence to advertise the offer, or the obtaining, of a child for adoption, without the written consent of the Director of Social Welfare ("the Director"). The same section makes it an offence for any person to advertise he is willing to make arrangements for the adoption of a child, unless there has been written consent from the Director.

29. In the vast majority of adoption applications, the Director will be the guardian ad litem.

30. For the purpose of considering who should be the guardian ad litem, cases fall into two prescribed classes.

31. The first such class covers the situation where the parents give what the Ordinance and the Rules describe as "general consent" to the adoption of their child. That "general consent" is given by means of prescribed Form 4A, the effect of which is that the parents surrender their child to the Director on the basis that he will approve and select adopters for the child. As a matter of law, the Director is the guardian ad litem in the "general consent" situation, which is far and away the most common type of adoption in Hong Kong.

32. The other prescribed class of adoption concerns those where the parents give what the legislation calls "specific consent" on Form 4, the significance of that being the parents make the child available for adoption by particular adopters.

33. In the "specific consent" situation - and the case before me falls into that class - the Director does not automatically become the guardian ad litem. He will become so if no one else is appointed guardian ad litem, but prospective adopters are entitled to ask the court to appoint someone else (There are other differences between Form 4A "general consent" and Form 4 "specific consent" adoption procedures, but of no materiality for present purposes).

34. The parts.of the Rules contemplating the appointment of someone other than the Director as guardian ad litemare as follows:

"8.(1) Subject to the provisions of rule 9, the Director shall be the guardian ad litem of the infant for the purposes of the application and copy of the summons shall be served on him.

(2)     On the service of a copy of the summons in accordance with paragraph (1), the applicant shall pay to the Director.a fee of $1,93-0 in payment of the proper costs of the Director for acting as guardian'ad litem for the infant:

    Provided that the Director, if he should consider such action is necessary or desirable, may, in his absolute discretion, waive payment of such fee or any part thereof.

9. ... if the applicant desires that some person other than the Director should be appointed to act as guardian ad litem, the originating summons must ask for the appointment of a guardian ad litem and must be supported by an affidavit by the applicant setting out the facts together with the consent to act in writing of the proposed guardian ad litem and the judge may appoint such person as he thinks fit to be the guardian ad litem."

35. No doubt acting on legal advice, the grandparents in the case before me decided to apply for the appointment of someone other than the Director to be the guardian ad litem for their grand-daughters. They did so becausethey were told that adoption was quicker without the Director as guardian ad litem.

36. The correctness of that advice must be open to doubt since the Director cannot be excluded from the adoption process, even where some other person has been appointed guardian ad litem.

37. An essential first step in any adoption proceedings is the lodging with the Director of a prescribed form of notice of intention (Form 1) to apply for an adoption order not less than six months (or such shorter period as the court may allow) before the making of an adoption order: s.5(7)(b) of the ordinance and Rule 3 made under it. Hence the Director gets wind of all proposed adoptions from the outset.

38. Once a date has been fixed with the court for the hearing of the adoption application the Director, in cases where he has not bee appointed guardian ad litem, must be served with notice (in Form 6) of the hearing. At the hearing, the Director may appear to show cause why an adoption order should not be made: Rule 17(1). Thus, if the Director is not satisfied the guardian ad litem has done sufficient to safeguard the interests of the adoptive child, the Director can intervene in the proceedings. Should the Director satisfy the court that the circumstances of the proposed adoption have not been adequately investigated by the guardian ad litem, the practical result will be the adjournment of the adoption proceedings for further enquiries, and the prospective adopters' quest for speed will be thwarted.

39. Whether there is any justification for describing the Director as "slow" in relation to adoption investigations generally is beyond my province, and I lack hard data enabling me to comment either way: Speed or otherwise in relation to any adoption investigation can, of course, only be judged in the light of its actual circumstances, particularly the degree of complexity involved. Prospective adopters dissatisfied with the Director's rate of progress on their application can seek redress through administrative channels, the Ombudsman being an obvious avenue of complaint.

40. The person ("Mr.D") put forward by the grandparents in the District Court for appointment as guardian ad litem under Rule 9 has, in the context of adoption, the somewhat incongruous qualification of now running a credit investigation bureau, his previous experience being the thirteen years from 1974 to 1987 he spent in the Operations Department of the Independent Commission Against Corruption ("I.C.A.C."), investigating corruption. He has a certificate in Security Management from the City and Guilds of London Institute in conjunction with the International Institute of security. That comes from passing tests on the following topics:

The security of corporate assets; Protection of other property; Emergency situations;

Fire prevention and control and health and safety; English law;

Management.

41. How the grandparents came to meet Mr D is not made clear in the affidavit they made under Rule 9 "... setting out the facts ...", on the strength of which they sought his appointment as guardian ad litem.

42. This was not the first time Mr D had been appointed guardian ad litem in adoption proceedings. He is building up a business in it. On the present occasion, he has been paid $5,000 (plus $500 for out-of-pocket expenses) by the grandparents. There has been nothing secret about it. The information was there in the grandparents' affidavit which would have been before the^- District Judge who appointed Mr D guardian ad litem, and sanctioned payment to him. He had twice previously, in 1991, had similar appointments, and another is pending.

43. An essential quality of any guardian ad litem is the ability to act independently, without fear or favour, in the child's best interests. Although Mr D, in his affidavit, makes the self-serving assertion that he will "... exercise independent judgment ..." in carrying out his duty as guardian ad litem, his position as someone in the business of acting as a guardian ad litem paid by prospective adopters undermines any appearance of independence. Were he to make a habit of reporting adversely on the suitability of his paymasters as adoptive parents, little imagination is required to realize that solicitors would soon lose their enthusiasm for recommending his services as a guardian ad litem to their clients. In any one case, it might be said that his recommendation is free from pressure to please the client, since he is paid a flat fee in advance, so that his remuneration does not depend on the outcome being an order in favour of the adopter. To look at each case in isolation, though, would be to ignore the reality that the prospect of future business depends on building up a reputation as one who fulfils the client's wish of securing an adoption order. A guardian ad litem with business needs of his own to serve is not likely to be, and is certainly not seen to be, independent. There is an inherent conflict between his duty to safeguard the welfare of an adoptive child, and his interest in building up his business which requires satisfied adopters.

44. The words of Sir Stephen Brown in relation to guardians ad litem in adoption proceedings in England in Regina v. Cornwall County Council, Ex parte Cornwall and Isles of Scilly Guardians Ad Litem and Reporting Officers Panel (1992] 1 W.L.R. 427, 435G, apply with equal force in relation to the position of a guardian ad litem in Hong Kong:

"It is vital that the independence of the guardian ad litem in carrying out his or her duties on behalf of the child in any proceedings should be clearly recognised and understood. ...

It is important that the courts and the public should have confidence in the independence of the guardians. It is also important that the guardians ad litem themselves should feel confident of their independent status."

And at page 437B:

"I wish to emphasise how vital it is for guardians not only to be seen to be independent but also to be able to be assured themselves of their independence in the carrying out of their duties."

45. Another feature militating against the desirability of adopters selecting a guardian ad litem who is in the guardian ad litem business is that he will not start off by being given information from an independent source. Such a guardian ad litem is likely, in practice, to receive his initial briefing on the case from one of the least impartial sources, namely, the adopter's solicitor or the adopter. Those are the sort of "unilateral" instructions of which the Court of Appeal in England complained in Cadman v. Cadman [1982] 3 F.L.R. 275, 278. Such an introduction to the case carries the risk of colouring the guardian ad litem's attitude towards it from the outset.

46. At the end, too, the guardian ad li.tem will expose himself to undesirable influences if he follows the course adopted by the guardian ad 1-item in the present case, namely, of making his report available to the prospective adopters' solicitors, rather than supplying it to the court alone, as contemplated by Rule 14, which is as follows:

"14. The guardian ad litem and any agent of his and, where a body of persons is appointed as guardian ad litem, every officer of that body shall treat as confidential all information obtained in the course of the investigation, and shall not divulge any part of it to any other person except so far as may be necessary for the proper execution of his duty."

It is up to the court to decide who should see the guardian ad litem's report, and to what extent. A privately retained guardian ad litem, as in the present case, is likely to be inhibited from full and frank disclosure to the court when he knows the report will be seen by the solicitor who commissioned it.

47. It so happens that, by virtue of Rule 17(2)(a), the present case had to be transferred from the District Court to the High Court because the mother has not given her consent to the proposed adoption.

48. Even if the District Court had, however, had jurisdiction to dispense with the mother's consent, the case would still have had to be transferred from the District Court to the High Court in the light of Rule 17(2)(b) which provides:

"If -

...

(b)     any person having a proper interest in the application objects to an adoption order being made, the District Court shall transfer the application to the High Court."

It would be difficult to conceive of anyone with a more "proper interest" in an adoption application than the Director. As the Director has intervened in the court proceedings by taking out a summons for the removal of Mr D as guardian ad litem, the case would inevitably have finished up before the High Court, regardless of whether the mother gave consent. on the first occasion the matter came before me after the Director intervened, I joined him in as a party to the proceedings. That was_. on 31st July 1992. Since then, the Court has been furnished with a wealth of helpful information from the Adoption Unit of the Social Welfare Department.

49. The summons before me now asks that either the Director or the official Solicitor should be substituted for Mr D as guardian ad litem. Mr D has filed an affidavit with the court consenting to his own removal. Neither Mr D, nor anyone representing him, appeared on the hearing of the summons before me as to whether it was preferable to have the Director or the official Solicitor replace him. As Mr D was still the guardian ad litem when that summons was heard before me, he should, strictly speaking, have appeared to assist the court, since he had not yet been released from the duty^- he assumed under s.12(3) of the Ordinance of "... safeguarding the interests ..." of the children when he accepted the appointment to be their guardian ad lit,em. Mr D's non-appearance before the court was illustrative of his short-comings as a guardian ad litem. In Mr D's absence, the Official Solicitor stood in as amicus curiae to ensure that the welfare of the two adoptive children was fully protected in the proceedings before me.

50. There is no complaint from the Director against Mr D in the latter's personal capacity. In fact, I am satisfied from the material before me that Mr D behaved fairly, and did his best to measure up to what is required of a guardian ad litem. He should not, however, have been put forward as a guardian ad litem in the first place, since, in addition to the reasons cited above, he is totally lacking in relevant qualifications or experience. True,   Rule 13 and The Second Schedule, which I set out earlier, use the word "investigate" and "investigation", and there is no denying that Mr D has investigated corruption and carried out credit investigations. However, in the context of adoption, it is simply inconceivable that the law draftsman would for one moment have dreamt that someone whose experience was limited to those areas would be treated as fit to be appointed guardian ad litem for the type of child-welfare investigation Rule 13 contemplates.

51. The-District Judge who appointed Mr D as guardian ad litem under Rule 9 exercised his discretion in a way which is indefensible.

52. Despite Mr D's best efforts, the report he has made to the court under Rule 13 is, unsurprisingly, inadequate, since nothing in his training or experience has provided him with the sort of specialized knowledge of adoptive parents and children necessary to prepare the type of report a court expects.

53. In particular, his report was inadequate on two basic statutory requirements. Firstly, by s.8(1)(a) of the ordinance, the court making an adoption order must be satisfied that any parent understands that the effect of the order will be permanently to deprive him or-her of his or her parental rights. Mr D's report does not adequately explain how that fact was brought home,to the mother. It is insufficient just to state a conclusion, as Mr D did, that "The parents understand very well that the adoption order is irrevocable, and that the order if made will deprive them of all rights in respect of the maintenance and upbringing of the infants".

54. Secondly, his report does not deal in sufficient depth with the wishes of the children, it being a requirement of s.8(1)(b) of the Ordinance that before making an adoption order the court must be satisfied it will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child, having regard to the child's age and understanding.

55. Not only was Mr D deficient in training and experience to be a guardian ad litem, but he lacked the sort of resources Rule 13 presupposes will be available to a guardian ad litem. In particular, the combined effect of Rule 13(b) and Rule 16 requires the guardian ad litem "... to interview (either by himself or by an agent appointed by him for the purpose) ...," inter alia, the mother. As the mother happened to be in the United States at the time Mr D carried out his investigation, and as he had only been paid HK$500 for out-of-pocket expenses, there was, in practice, no way that he, as a one-man show operating in Hong Kong, could bring off the necessary interview. Instead, the best he could do was make a single phone call to the mother. A lone^. operator, such as Mr D, is particularly ill-suited to a case like the present which has many features of an overseas adoption. By contrast, the Director, and presumably other adoption agencies in Hong Kong, have access to Hong Kong's branch of International Social Service ("ISS"), an organization having consultative status with the United Nations, and specializing in international adoptions. Through ISS, the Director can make arrangements for the mother to be interviewed by a social worker in the United States, thus satisfying the requirements of Rule 13.

56. Nor would Mr D have had the resources if the circumstances of the children were such that the court needed, say, the opinion of a psychiatrist or other medical expert on the adoptive parents or children, as not infrequently happens in adoption cases.

57. Besides seeking to be substituted for Mr D as guardian ad litem in the instant case, the Director has had a wider purpose to serve, in that he has sought to use the present proceedings as an opportunity to get guidelines from the High Court on who should be treated as fit for appointment as a guardian ad litem under Rule 9, as an alternative to the Director. The Director's interest in this wider issue in no way precludes him from being, in my view, the person best suited to being guardian ad litem in the present case, and I so appoint him in substitution for Mr D.

58. While the court appreciates having received the benefit of the official Solicitor's arguments on the present summons, it sees no advantage in preferring the Official Solicitor to the Director as guardian ad litem in the present case.

59. Needless to say, this court is in no position to usurp the discretion of District Judges as to whom they appoint as guardians ad litem in particular cases under Rule 9, and it is not the function of this court.-to rewrite the language of Rule 9. I do not, however, feel I am going too far if I point out that_.common sense dictates that only those with special training in relation to children are fitted to fulfil the duties imposed on a guardian ad litem by Hong Kong's adoption legislation. The sort of people I think the legislation has in mind are social workers, teachers and clinical psychologists. That short list is not meant to be exhaustive.

60. Rarely will it be appropriate to appoint an individual not backed by the resources of an organisation which will be available to the guardian ad litem for pursuing proper investigations into the circumstances of the adoptive parents and children.

61. More often than not, it will in practice be appropriate to appoint an organization rather than an individual as guardian ad litem. That an organisation can qualify as a guardian ad litem is explicitly acknowledged by Rule.14 which refers. to "... where.a body.of persons is appointed as guardian ad litem ..." The types of organization I have in mind (apart, of course, from the Department of Social welfare) are voluntary agencies specializing in adoptions.

62. Never will it be appropriate to appoint an individual or organization with any material hope or fear at stake in the outcome of adoption investigations.

63. It was suggested before me in argument that there might be a loop-hole in Hong Kong's adoption legislation if someone as patently ill-suited as a credit bureau investigator can finish up as a guardian ad litem under it. My own view is that the legislation itself cannot be faulted on this score. Only common sense is required in appointing guardians ad litem to ensure the legislation works as intended.

64. Because of the public interest element in the proper working of the adoption system in Hong Kong, I have decided to deliver my judgment_.in open court.