DIRECTOR OF SOCIAL WELFARE v. LPK

HCAD 33/2023&

HCAD 34/2023

[2024] HKCFI 421

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADOPTION PROCEEDINGS NO 33 OF 2023

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AND

ADOPTION PROCEEDINGS NO 34 OF 2023

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(Heard Together)

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D E C I S I O N

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A. Introduction

1.  This is an application by the Director of Social Welfare (“the Director”)  for an order declaring an infant (i)  in HCAD 33/2023, LWY (“the 7^th Child”)  and (ii)  an infant in HCAD 34/2023, LLY (“the 6^th Child”)  free for adoption and dispensing with the consent of the Defendant (“Mother”).

2.  The Mother is the birth mother.  The putative father is TSL (“Putative Father”), who has cohabited with the Mother since 2015.  Both parents are believed to be drug abusers.  Together, they have 7 children.

A1.  The 7^th Child

3.  The 7^th Child, a girl, was born on █████ 2023 and is aged under 1 year.  At the time of her birth, there were traces of drugs in her urine. 

4.  Child neglect was established pursuant to a multi-disciplinary case conference on protection of child with suspected abuse.  Due to the doubtful attitude of the Mother and the Putative Father in tackling their drug problems and lack of care plan for 7^th Child, the 7^th Child was placed in the New Comers Ward of Po Leung Kuk on █████ 2023 since her discharge from hospital.  Her parents have never visited her.

5.  The Director was appointed the legal guardian of the 7^th Child on █████ 2023.

6.  The Infant enjoys stable health and has no health concern.  She has age-appropriate development.  Financially, the caseworker has referred the 7^th Child to apply for comprehensive social security assistance (“CSSA”)  and will act as her appointee in managing her welfare money.

A2.  The 6^th Child

7.  The 6^th Child, a girl, was born on █████ 2021 and is aged 2. At the time of her birth, there were traces of drugs in her urine.

8.  Child neglect was established pursuant to a multi-disciplinary case conference on protection of child with suspected abuse.  Due to the doubtful attitude of the Mother and the Putative Father in tackling their drug problems and lack of care plan for the Infant, the Infant was placed in the Children Residential Home of Hong Kong Society for the Protection of Children since her discharge from the New Comer’s Ward of Po Leung Kuk on █████ 2023.  Her parents have never visited her.

9.  The Director was appointed the legal guardian of the 6^th Child on █████ 2022.

10.  The Infant enjoys stable health and has no health concern.  She has age-appropriate development.  Financially, the caseworker acts as her appointee in managing her money from CSSA.

11.  On 22 November 2023, the Director took out an originating summons in respect of the 6^th and 7^th Child, respectively, on the grounds that the Mother has abandoned and/or neglected them, that her consent to free them for adoption is unreasonably withheld, and that in all the circumstances of this case, her consent ought to be dispensed with. 

12.  The originating summonses have been served on the Mother on 23 November 2023 at her last known address but she has not acknowledged service and is absent at this hearing.

13.  On 22 November 2023, the Director made this application by originating summons on the grounds that the Mother has abandoned and/or neglected the Infant, that her consent to free the Infant for adoption is unreasonably withheld, and that in all the circumstances of this case, her consent ought to be dispensed with. 

14.  The originating summons has been served on the Mother on 23 November 2023 at her last known address but she has not acknowledged service and is absent at this hearing.

B.  Legal principles

15.  Under section 5(5)(a)  of the Adoption Ordinance, Cap 290 (“the Ordinance”), an adoption order shall not be made without the consent of every person who is a parent of the infant. 

16.  Section 2 defines “parent”, in relation to a child who is born out of wedlock, to mean (a)  his mother; (b)  in the case of a child whose father is entitled to exercise any right or authority in relation to the child by virtue of an order of a court under section 3(1)(d)  of the Guardianship of Minors Ordinance (Cap 13)  (“GMO Order”), his father.

17.  However, the court may make an order declaring an infant free for adoption if it is satisfied that:

(1)  The parent has “abandoned, neglected or persistently ill-treated the infant;

(2)  The parent cannot be found or that his consent is unreasonably withheld; or

(3)  The parent’s consent ought, in all the circumstances of the case, to be dispensed with.

See sections 5A(1)  and (2)  and 6(1)  of the Ordinance.

18.  In Re C (Adoption: Consent) [2012] 1 HKLRD 308, §§25 and 26, Poon J (as he then was)  explained the meaning of “abandonment” and “neglect”:

“25. Abandonment is a morally reprehensible desertion of the child. When a parent abandons his child, he is disregarding his parental duty completely. He simply gives up the child and has left it to its fate. …

26.  Neglect involves a very serious dereliction of parental responsibility.  When a parent neglects a child, he fails to make adequate arrangements for the care and nurturing of the child, such as the provision of adequate and proper food, nursing, clothing, medical aid, accommodation, education or other special needs of the child.”

19.  In Director of Social Welfare v YKK [2021] 4 HKLRD 30, B Chu J adopted a two-stage process in this type of application:

(1)  Is adoption in the best interests of the child?

(2)  If so, is a ground or grounds of dispensation of the consent to the adoption required under section 5(5)(a)  of the Ordinance proved on the balance of probabilities?

20.  The Court shall have regard to the Adoption Checklist when considering whether adoption is in the best interest of the children: DSW v YPC [2020] 5 HKLRD 233, §§69-75, B Chu J.

21.  The fact that the Court is satisfied that any necessary consent should be dispensed with does not make the Court a rubber stamp to allow the freeing application: DSW v HJX [2021] 1 HKLRD 519, §30. 

C.  Stage 1: is adoption in the best interests of the Infant?

22.  I have considered the Adoption Checklist. 

23.  The Mother was born and brought up in Hong Kong.  She is the only child of the family.  Her mother passed away when the Mother was 9 years old.  Her father remarried.  The Mother was brought up by her paternal grandmother and paternal aunt. She seldom had contacts with her maiden family and the relationship with the family members was aloof.  She refused to reveal the means of contact with them.

24.  The Mother quitted schooling without completing Form 3.  She started abusing drugs since the age of 18 and even during her pregnancies.

25.  The Mother and the Putative Father have 7 children but none of them are under the parents’ care.

	Name	Date of Birth	Age & Sex	Current education	Remarks
1	█████ (████)	██.██.2016	██	██ student	CSSA recipient; urine toxicology results of both child and Mother were positive with methamphetamine when the child was born; global developmental delay. Freed for adoption in HCAD 19/2023 by order dated 21 July 2023 by B Chu J
2	█████ (████)	██.██.2017	██	██ student	CSSA recipient, urine toxicology results of Mother were positive with methamphetamine when child was born; suffers from right renal pelvis.  Freed for adoption in HCAD 20/2023 by order dated 21 July 2023 by B Chu J
3	█████ (████)	██.██.2018	██	██ student	CSSA recipient; urine toxicology results of both child and Mother were positive with methamphetamine when child was born; developmental delay. Freed for adoption in HCAD 21/2023 by order dated 21 July 2023 By B Chu J
4	█████ (████)	██.██.2019	██	██ student	CSSA recipient; urine toxicology results of both child and Mother were positive with methamphetamine when child was born; global developmental delay.  Freed for adoption in HCAD 27/2022 by order dated 17 March 2023 of Au-Yeung J
5	█████ (█████)	██.██.2020	██	/	CSSA recipient; urine toxicology results of both child and Mother were positive with methamphetamine when child was born; suspected developmental delay.  Freed for adoption in HCAD 26/2022 by order dated 17 March 2023 of Au-Yeung J
6	LLY (█████) subject child	██.██.2021	██	/	CSSA recipient; urine toxicology results of child and Mother were positive with methamphetamine when child was born.  Pending application for a freeing order in HCAD 34/2023
7	LWY (█████)  subject child	██.██.2023	██	/	Residing at foster home; urine toxicology results of both child and Mother were positive with amphetamine and methamphetamine when child was born. Pending application for a freeing order in HCAD 33/2023

26.  The Mother rarely responded to the Director’s contacts and always defaulted in interviews. She refused to give any consent for any of her Child’s proposed adoption and yet she declined to talk about their welfare plans.  It appears that her last contact with the caseworker was on █████ 2023. After birth of the 7^th Child, the mother left the hospital before the caseworker could visit her.

27.  The Putative Father is not a parent within the meaning of section 2 of the Ordinance and has not indicated an intention to apply for a GMO Order despite being advised by the caseworker of the right to apply.  He is not a person whose consent to free the Children for adoption is required.  In any case, he has not responded to the caseworker’s attempts to discuss the Children’s matters. 

28.  The Putative Father was born and brought up in Hong Kong.  He is the elder of 2 siblings.  His parents were divorced.  He quitted schooling without completing Form 2.  He started abusing drugs in his adolescence.  He has committed an offence against a person in 2005 and had been imprisoned for drug offences from 2008 and 2009; and 2013 to 2015.  He claimed not to have taken drugs since 2016.  Nothing further is known about his current position. 

29.  Both the Mother and the Putative Father were used to living on CSSA.  Neither of them have committed themselves to leading drug-free lives, taking up parental roles, maintaining bonding with their children, or visiting them.  Only the Mother is on CSSA currently.

30.  The paternal grandmother was aware of the Putative Father having several children under the Director’s care. However, she had no intention of taking care of the children.  She requested the caseworker not to contact her again about the affairs in relation to the children.  Her telephone line has since been out of service.  Her view towards the present application could not be ascertained. 

31.  No other relative is available to assist in taking care of the children.

32.  The 6^th Child has always lived in an institution.  The 7^th Child has also lived in an institution but has been under foster care since █████ 2024.  Both are too young to understand the concept of adoption and so their views cannot be ascertained.  They do not have any memory of their siblings, not to say any bonding with the original family.  They are unlikely to have separation issues with their siblings or indeed, anyone, were they freed for adoption.

33.  It is essential for the 6^th and 7^th Child to secure a stable and permanent family or families, which can meet their development needs and facilitate their healthy growth.  Change to another institution when a child reach 3 years old in necessary, since she will exceed the age limit of the current residential placement.  Foster care depends on availability of foster parents and is not a permanent measure.  Frequent change of carer and living environment would be unfavourable to the development of such young children. 

34.  Given their young age and good health, the 6^th and 7^th Child’s chances of local and overseas adoption are optimistic.

35.  In my view, a permanent home with an adoptive family or families can provide lifelong and stable support for the 2 Children which institutional life cannot give.  There is little risk of harm in placing them under adoption.  Adoption is thus in their best interest.

D.   Stage 2: grounds for dispensation with consent of the parent

36.  The Mother has never taken care of the 6^th and 7^th Child (and indeed any of her 7 children).  The Mother has never visited them or shouldered her parental responsibilities or shown any concern over their welfare.  She seldom discussed or even refused to discuss the 6^th and 7^th Child’s welfare plan with the case worker.  She has also defaulted numerous appointments arranged by the Director for discussion of the two Children’s welfare.  She failed to enquire about their conditions, not to mention arranging for food, nursing, clothing, accommodation, education or the like.  She has plainly abandoned or neglected the two Children.

37.  The Mother does not have fixed abode, stable job or source of income.  She relies on CSSA.  There is no realistic likelihood that she will be able at any time in the foreseeable future to offer a safe and beneficial family environment for the two Children.  The Mother has not consented to the present application but took no steps to discuss the welfare plan of the Infant.  Her attitude towards the other children is the same.  I find that her consent to free the 6^th and 7^th Child for adoption is unreasonably withheld.

38.  The Mother simply lacks ability and capacity to provide for the two Children.  She has already deprived them of the love of a family.  The older the two Children get, the greater the chance of seeking adoption diminishing.  Under the Adoption Checklist, delay of the court or adoption agency in coming to a decision in relation to a child is likely to affect the child’s best interests.  There should be no more delay and I consider it appropriate, in all the circumstances, to dispense with the consent of the Mother.

E.  Other considerations

39.  As stated in paragraph 21 above, the Court should not rubber stamp freeing applications even if all the legal requirements are met.

40.  I have in HCAD 26 and 27/2022 (“the Related Cases”)  raised a concern as to the human rights of the children as follows:

“29. My greater concern is that these 6 children have been living in different institutions or with foster families, have never met one another and are not even aware that they have siblings. The reasons are twofold: they have to be placed according to the age requirement of an institution and the pandemic prevented face-to-face meetings.

30. Whilst this Court understands the difficulties faced by the Director and that she might not have foreseen so many children born to the same parents (or the same mother), the Court invites the Director to consider the human rights of abandoned/neglected child with one or more siblings. In particular, the right to protection of family under Article 14 of the Hong Kong Bill of Rights Ordinance, Cap 383 may be engaged. One cannot exclude the possibility that children, by nature or by proper guidance, may be willing and able to build their own families with siblings despite being abandoned or neglected by their parent(s). I shall reserve my views on the law until a proper occasion in future. The Court (sic, should be “invites”)  the Director to consider placing the children of this family yet to be adopted in the same institution or at least arrange regular meetings for them.”

41.  It is not clear if the Director has considered the issues in the preceding paragraph.  For 2 reasons, I find it to be important for the Court to consider the human rights of the subject Children before deciding whether to make a freeing order in the present case and (in future)   adoption orders in the Related Cases:

(1)  The present cases are special as they involve 2 among 7 children, the oldest being 7 only.  The 7^th child was born shortly after this Court granted freeing orders in respect of the 4^th and 5^th children in the Related Cases.  The Mother is aged 33; and the Putative Father 36.  Given the Mother’s lack of birth control in the past, one cannot exclude the possibility of more children to come.

(2)  This case is not the only one where a mother gives birth to more than one child.  In a recent case where this Court had to handle 2 international adoption applications, there was a mother who gave birth to 11 children, by 7 men.  Two children were luckily adopted together by a couple in the USA.[1]  Other children were adopted and have, understandably, lost trace with their siblings.  Some children are waiting to be adopted.

42.  These cases that came before me raise concerns in my mind as to whether or not children born of the same mother have had access to their siblings, at least before adoption was carried out, and their rights to a family that the society should protect.  It is not clear how common it is for mothers to give birth to more than 2 children which need freeing orders.

43.  I therefore give the following directions:

(1)  The Official Solicitor be invited to be the next friends of the 7 children born out of the Mother in this case. 

(2)  The Official Solicitor shall file and serve on the Director a Report by 5 April 2024 to address the following issues:

(a)  Whether there are human rights in relation to the children, especially the right to protection of family under Article 14 of the Hong Kong Bill of Rights Ordinance, Cap 383, which are called into question in the present case;

(b)  Whether any of those rights have been breached;

(c)  What are some of the minimum measures to ensure that those rights can be safeguarded (eg regular meetings of the children, putting them into one residence with day care by institutions / foster parents, putting them into as few institutions as possible)?

(3)  For the purpose of preparing the Report, there be leave to the Official Solicitor and Director to have access to the papers in the Related Cases.  The Official Solicitor shall also have power to investigate facts that may be relevant to her preparation of his report.

(4)  The Director may file and serve an affidavit in response within 2 months of the service of the Official Solicitor’s Report.

(5)  The originating summonses are adjourned for call over to a date to be agreed between the parties, with 30 minutes reserved. 

(6)  All the adoption applications (whether local or international)  in relation to the subject infants in HCAD 26, 27, 33 and 34/2023 shall be placed before this Court in the first instance. 

(7)  For adoption applications (whether local or international)  in relation to the subject infants in HCAD 19 and 20/2023, the Director shall alert the assigned judge to this Decision.

(8)  Liberty to apply.

44.  I thank Ms Wong and Ms Fong █████ (social work officer)  for their assistance.