DIRECTOR OF SOCIAL WELFARE v. LPK

HCAD 26/2022

[2023] HKCFI 802

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADOPTION PROCEEDINGS NO 26 OF 2022

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BETWEEN

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J U D G M E N T

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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, LLY (“the Infant”) free for adoption and dispensing with the consent of the Defendant (“Mother”).

2.  The Infant was born on               2020 and is aged   . The Mother is the birth mother. The putative father is TSL (“Putative Father”), who has cohabited with the Mother since 2015. Both are believed to be drug abusers.

3.  The Mother has given birth to 6 children, all with Mr T as the Putative Father.

	Name	Date of Birth	Age & Sex	Current education	Remarks
1	X             X            (           )	2016	X	xx student	CSSA recipient, residing at Precious Blood Children’s Village; urine toxicology results of both the child and her Mother were examined positive with methamphetamine when the child was born; suffers from global developmental delay.
2	X             X            (          )	2017	X	/	CSSA recipient, residing at Kinder Section of Po Leung Kuk; urine toxicology results of the Mother were examined positive with methamphetamine when the child was born; suffers from right renal pelvis.
3	X (       X)	X 2018	X	/	CSSA recipient, residing at a foster home; urine toxicology results of both the child and his Mother were positive with methamphetamine when the Infant was born; suffers from developmental delay.
4	X (        X)	X 2019	X	/	CSSA recipient, residing at Children’s Residential Home of the Hong Kong Society for Protection of Children; urine toxicology results of both the child and her Mother were examined positive with methamphetamine when the child was born; suffers from global developmental delay.
5	LLY (       X), the Infant	X 2020	X	/	CSSA recipient, residing at Babies Section of Po Leung Kuk; urine toxicology results of both the Infant and her Mother were positive with methamphetamine when the Infant was born; suspected developmental delay.
6	X (        X)	xXXx 2021	X	/	CSSA recipient, residing at New Comer’s Ward of Po Leung Kuk; urine toxicology results of both the child and her Mother were examined positive with methamphetamine when the child was born.

4.  As child neglect was established pursuant to a multi-disciplinary case conference on protection of child with suspected abuse, the Director was appointed the legal guardian of the Infant on            X              2021.

5.  Due to the doubtful attitude of the Mother and the Putative Father in tackling their drug problems and lack of plan for the Infant, the Infant was placed in the New Comers Ward of Po Leung Kuk upon her discharge from hospital since X             2021. She was then transferred to the Babies’ Section of Po Leung Kuk on X             2021 and has since resided there. Her parents have never visited her.

6.  The Infant has gradual improvement in her body weight and has stable health, although she is suspected to be suffering from developmental delay. She requires regular medical follow up due to respiratory problem. She is receiving individual training in Po Leung Kuk for occupational therapy and physiotherapy. She is living on comprehensive social security assistance (“CSSA”).

7.  On 4 November 2022, 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.

8.  The originating summons has been served on the Mother but she has not acknowledged service and is absent at this hearing.

B. Legal principles

9.  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.

10.  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.

11.  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.

12.  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.”

13.  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?

14.  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.

15.  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?

16.  I have considered the Adoption Checklist.

17.  The Mother was born and brought up in Hong Kong. She was 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 has contact with her maiden family and her relationship with those family members is distant. She refused to reveal the means of contact with her maiden family to the caseworker.

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

19.  The Mother has never taken care of the Infant (and indeed none of her 6 children). She rarely responded to the Director’s contacts and always defaulted in attending interviews. She refused to give any consent for any of her children’s proposed adoption and yet she declined to talk about their welfare plans. She became almost unreachable since about X             2020 until about X              2021 when she gave birth to her 6^th child, another infant who is the subject of an application for a similar freeing order.

20.  When the caseworker visited the Mother at the hospital on       X             2021, the latter showed no interest in her children’s current condition and even forgot their names. She claimed to wish to discuss with the Putative Father (then imprisoned) about the children and refused to consent to the freeing of the children for adoption. She has failed to appear at an appointment on X             2021 and thereafter.

21.  The Mother suddenly made a call on X            2022 after office hours, saying that she intended to visit her children. However, she again failed to appear at the interview on X             to discuss her drug withdrawal treatment program.

22.  X             2022 was the last call that the caseworker had with the Mother. However, the Mother did not show concern over the Infant and passed the phone to a male who claimed to be the Putative Father. The Putative Father spoke in foul language and said that all issues relating to the children were no longer related to them.

23.  The Putative Father is not a parent within the meaning of section 2 of the Ordinance and has no intention to apply for a GMO Order despite being advised by the Director of such a right as late as on                     X         x        2021. He is not a person whose consent to free the Infant for adoption is required.

24.  In any case, the Putative Father has not responded to the caseworker’s attempts to discuss the children’s matters. He 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 offences against a person and offences related to drugs, and have been imprisoned for drug offences. He claimed not to have taken drugs since 2016. He was unable to take care of the Infant as he was uncertain about the Mother’s capacity in child care due to her unsettled drug problem. Little is known about his current position.

25.  Both the Mother and the Putative Father are 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.

26.  The paternal grandmother was aware that the Putative Father has 6 children, but she had no intention of taking care of them. The caseworker has no contact information of the Mother’s family members.

27.  The Infant has always lived in an institution. She is too young to understand the concept of adoption and so her views cannot be ascertained. Since the Mother has never visited the Infant, the latter does not have any recollection of her childhood with the Mother, not to say any bonding with the original family.

28.  The evidence discloses that the Infant has 5 other siblings born of the same parents. Usually, the Court will deal with their freeing orders at the same time. However, for the older children, clinical psychologist reports have to be obtained before applying for a freeing order. Having taken legal advice, the Director decided to make applications to the Court for these 2 younger ones first. I appreciate the Director’s concern as to time and that there should be no delay in this matter. Practically, it is also unlikely for adoptive parents to adopt all 6 children.

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 unites 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.

31.  For the present case, it is a fact that the Infant will not have separation issues with her siblings were she freed for adoption.

32.  It is essential for the Infant to secure a stable and permanent family, which can meet her development needs and facilitate her healthy growth. She has to change to another institution when she reaches 3 years old, since she will exceed the age limit of the current residential placement. Frequent change of carer and living environment will be unfavourable to the development of such a young child.

33.  Given her young age and good health, the Infant’s chance of local and overseas adoption is optimistic.

34.  In my view, a permanent home with an adoptive family can provide lifelong and stable support for the Infant which institutional life cannot give. There is little risk of harm in placing her under adoption. Adoption is thus in her best interest.

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

35.  The Mother has never shouldered parental responsibility. She has no stable job, no income and no fixed accommodation. She has never visited the Infant and has plainly abandoned and neglected her. She has no welfare plans for the Infant. The Mother’s own life is not in order, has no plans for change and is plainly incapable of taking care of the Infant. She has been acting unreasonably in withholding her consent to free the Infant for adoption.

36.  The Mother has already deprived the Infant of the love of a family. The older the Infant gets, 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. Conclusion

37.  The 2-stage test is satisfied.  There is no factor which points against a freeing order.  I therefore order that the Mother’s consent be dispensed with and that the Infant be freed for adoption.

38.  I thank Ms Wong for her assistance.