THE DIRECTOR OF SOCIAL WELFARE v. HSP

HCMP 598/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 598 OF 2013

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R U L I N G

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Introduction

1. There are two sets of proceedings before this court:

(i)   An originating summons issued by the Director of Social Welfare (“Director”) on 26 March 2013 in these proceedings HCMP 598 of 2013, seeking orders under the Adoption Ordinance (“Ordinance”) in relation to the proposed adoption of a child HY (“1^st Proceedings”), with Mr Huang being the defendant.

(ii)  An originating summons issued on behalf of HY and 2 of her half siblings, YY and M, by representative of Mother’s Choice, a non-profit community organisation on 6 August 2013 under HCMP 1907 of 2013, for the 3 children to be made wards of court and for various orders relating to their proposed adoption (“2^nd Proceedings”), with the Director named as 1^st defendant and the mother of all 3 children the 2^nd defendant (“Mother”).  

2. Initially the Director sought an order under section 5(5) (a) of the Ordinance seeking that the consent of the defendant Mr Huang, the legal father of HY, be dispensed with (“Dispensation Order”) and for an order that HY be freed for adoption under section 5A of the Ordinance (“Freeing Order”).  This court handed down a preliminary ruling in the 1^st Proceedings on 9 August 2013 (“Ruling”), in relation to among other things, service out of jurisdiction and the definition of a “parent” in section 5 (5) (a) under the Ordinance.

3. Since the Ruling, the Director was informed that the  originating summons in the 1^st Proceedings had been successfully served through Mainland Judicial Authorities personally on Mr Huang on 24 July 2013 at the address of the Uncle and Aunt of Mr Huang.  He was absent during the subsequent hearings on 29, 30 July 2013 and also 9 August.  Mr Huang was also served by post in relation to the hearing on 3 September 2013 during which he was again absent.  So far, he had not filed any affirmations/documents to oppose the Director’s applications.

4. Mr Huang was married to the Mother at the time of HY’s birth, and indeed at the time of the respective births of the other 2 children, YY and M, and is presumed to be their father under section 5 of the Parent and Child Ordinance Cap 429.

5. In the Ruling, I have already set out my reasons and my conclusion that the presumption, whether under common law or under section 5 of the Parent and Child Ordinance Cap 429 is rebuttable on a balance of probabilities[1].

6. During the resumed hearing, instead of proceeding with the original applications for a Dispensation Order and a Freeing Order, the Director sought a declaration from this court for any presumption that Mr Huang was the father of HY to be rebutted (“Presumption”).

7. So far as Mother’s Choice is concerned, they supported the Director’s application in relation to HY, and indeed sought the same declaration in respect of not only HY but also the other 2 children, and their application was in turn supported by the Director.

The Rebuttal of the Presumption

8. In the Ruling, I mentioned that according to Mr Huang’s own evidence in the Family Court Proceedings, the marriage was consummated after the marriage, ie after 21 January 2006, and HY was born in August 2006[2]. I further mentioned therein that the Mother had told the Case Worker she had lost contact with the biological father of HY since November 2005 and that Mr Huang was not the biological father[3]. Further, according to an affirmation of the ISS Worker filed on 1 August 2013, when he pointed out to Mr Huang that he was not the biological father of HY, Mr Huang did not deny that he had no blood relationship with HY[4].

9. Since the Ruling, the Director filed further evidence from the Case Worker, stating that Mr Huang had told the previous Case Worker that he did not have pre-marital sexual intercourse with the Mother. More importantly, the Director filed a declaration dated 28 August 2013 from the Mother[5] stating that the biological father of HY was one Mr Lau with whom the Mother had lost contact since November 2005 and that Mr Lau did not know of the birth of HY, and that the Mother had no means of contacting Mr Lau.  The Mother confirmed that when she married Mr Huang, she was already pregnant but did not inform Mr Huang, and that she and Mr Huang only had sexual intercourse after the marriage.  She further confirmed that it was not possible for Mr Huang to be the biological father of HY and that Mr Huang was clearly aware of this.  The Mother also said she lost contact with Mr Huang since about middle of 2006.

10. Although it seems from Mr Huang’s own affirmation filed in the Family Court Proceedings that he only lost contact with the Mother in about April 2007, the evidence from the Mother was clearly that Mr Huang was not the biological father of HY.  There was no evidence filed by Mr Huang, or otherwise, to deny what the Mother said.

11. I have referred in the Ruling to what P Chan J, as he then was, said in the case of Kwan Chui Kwok & Anor v Tso Wai Chun & Ors[6] and that whether a person was the lawful and natural child of his parents must be approached from a common sense point of view, having regard to the evidence available and all the relevant circumstances.  The starting point must be the conduct of the parents and that the best person to know must be the Mother.  As I have also said in the Ruling, the standard of proof in rebutting the Presumption is on a balance of probabilities.

12. Having considered all the evidence filed by the Director and also from the Mother’s Choice, and in particular the Mother’s declaration, I am satisfied that on a balance of probabilities, that the Presumption is rebutted and that Mr Huang is not the biological father of HY.

13. Hence, so far as section 5(5) (a) of the Ordinance or the application for the Dispensation Order is concerned,  Mr Huang is not a person whose consent to an adoption order is required under that section, and it is thus not necessary for this court to make any Dispensation Order, namely to dispense with the consent of Mr Huang.

14. The “parent” to which section 5(5) (a) of the Adoption Ordinance refers is the biological father, but in the case of a father in relation to an infant born out of wedlock, under section 2 of the Ordinance, this means his father who 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.

15. There is no such order made under section 3(1) (d), and indeed in the present case, according to the Mother, the real biological father Mr Lau did not know of the birth of HY, or of HY’s existence.  It is thus not possible for Mr Lau to apply for such any order under the above section without knowledge of HY’s existence.  Anyway, this is a matter for the Director’s further consideration since so far there is no application in relation to Mr Lau before this court.

16. So far as the two younger children YY and M, are concerned, their birth mother is also the Mother, and thus they are HY’s half siblings.  Again, by reason of the fact that the Mother and Mr Huang were still legally married at the time of their respective births, the Presumption applies and Mr Haung was presumed to be their father.

17. YY was born on 12 October 2010 and M was born on 28 January 2013. The Mother had also made a declaration in respect of each child.  According to her, the biological father of YY is a man called Ah Chun, and that she had forgotten his full name and that she had lost contact with Ah Chun even before the birth of YY.  As she was still legally married to Mr Huang at the time, she had put down “Huang” as YY’s surname.  So far as M is concerned, according to the Mother’s declaration, M’s biological father is a Mr Leung whom she met in early 2012, and that again she had lost all contact with Mr Leung before the birth of M, and further she had requested the Births Registry to amend the birth record of M, for M to adopt the Mother’s own surname.

18. Since Mr Huang’s own affirmation showed he last had contact with the Mother in about April 2007, he could not have been the biological father of either YY or M.

19. Having considered all the evidence, I am satisfied on a balance of probabilities that the Presumption is again rebutted, namely that Mr Huang is not the biological father of either YY or M.

20. Hence, as with HY, so far as section 5(5)(a) of the Ordinance or the Dispensation Order is concerned,  Mr Huang is not a person whose consent to an adoption order is required under that section, and it is not necessary for this court to make any Dispensation Order in respect of YY or M.

Freeing Order 

21. Both Mr Pao, Counsel for the Director in the 1^st Proceedings, and Ms Irving, Counsel for Mother’s Choice in the 2^nd Proceedings took the view that if the Presumption is rebutted, then since the Mother has already signed the necessary consent forms for the 3 children to be adopted, it is not necessary for the court to make any Freeing Order for the 3 children.

22. I have raised the issue during the hearing that whether the 3 biological fathers of the children should be at least notified of the proposed adoption plans and I will leave this issue for the Director and Mother’s Choice to consider.

23. I also raised my concern during the hearing that HY’s clear preference to remain with her Foster Parents who have cared for her for the past 7 years shortly after her birth and that HY has regarded herself as one of the members of her foster family although she is aware of her temporal status there[7].  I understand that the Foster Parents do not wish to formally apply for an adoption order in respect of HY, but have expressed willingness to care for HY until she is 18 years old.  I have asked the Director and Mother’s Choice to consider whether there is any alternative proposal for HY, apart from adoption, such as whether it is possible for the Foster Parents to apply for a custody or guardianship order under the Guardianship of Minors Ordinance Cap 13, which may indicate more commitment than remaining as foster parents.  

24. HY is now 7 years old, and from the evidence filed so far, HY appears to be of the age and maturity and understanding that due consideration should be given to her wishes and opinions under section 8 (b) of the Ordinance if the court is asked to make an adoption order.  It has also been fully set out in Article 4 of the 1993 Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, attached as Schedule 3 of the Ordinance, that for any Convention Adoption to take place, the competent authorities of the State of origin referred therein have to ensure that certain matters have been complied with.  Further, if any adoption is to take place against HY’s wishes, it may well be that HY will need to be independently represented by say, the Official Solicitor[8].  

25. I will leave the Director to further consider my above concerns, as HY and the other children are now wards of this court and any future adoption plans will need to be endorsed by this court.

26. Finally, I would like to thank all Counsel for their helpful submissions to this court in this difficult case.