DIRECTOR OF SOCIAL WELFARE v. HJX

HCMP 67/2020

[2020] HKCFI 3127

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 67 OF 2020

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D E C I S I O N

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Introduction

1.  This is an application by the Director of Social Welfare (“Director”) seeking the following orders:   

(1)  Service of the originating summons and subsequent court documents on the defendant (“D”) be dispensed with;

(2)  Any presumption that D is the father of CMC under section 5 of the Parent and Child Ordinance (Cap 429) (“PCO”) be rebutted;

(3)  Further or alternative to paragraph (2) above, any consent of D or the putative father of CMC as required by section 5(5) of the Adoption Ordinance, Cap 290, (“AO”) be dispensed with;

(4)  CMC be freed for adoption (“Freeing Application”).

2.  The applications in (1) – (3) above were subsequently dealt and this decision is in relation to the Freeing Application, which has been directed to be dealt with on paper.

Background

3.  CMC was born on 7 February 2011 in Hong Kong. Her mother (“Mother”) had a history of substance abuse and had criminal record, and Mother has 4 children who were born out of her relationship with different males.  Her 1^st child has been adopted. Her 2^nd child is being taken care of by Mother’s paternal aunt.  CMC is her 3^rd child and her 4^th child is the subject of another freeing order application filed separately by the Director and this Court had granted an order for the 4^th child to be free for adoption.  

4.  CMC was made the Director’s ward on 14 June 2012 under the Protection of Children and Juveniles Ordinance, Cap 213.

5.  Mother formally relinquished her parental rights over CMC and gave her consent to CMC’s adoption on 27 June 2017.  On the same day, she also declared that the man named on CMC’s birth certificate as her father (“Father”) is a Hong Kong Chinese male with whom she had sexual intercourse around April 2010, and that she had forgotten who he was and had not kept in touch with him.

6.  Father was later contacted by the Director and he had also made a declaration on 18 April 2018 formally relinquishing his parental rights, if any, over CMC and gave his consent to her adoption.

7.  It then transpired that Mother was married to D at the time of CMC’s birth.  D is a Chinese national from Mainland China. Mother and D were married on 5 August 2009 and although according to Mother, they had separated, their marriage still subsists today.

8.  The Director was not able to contact D, who under section 5(1)(a) of the PCO is presumed by law to be the father of CMC.

9.  After the issue of the originating summons herein on 15 January 2020, on 15 May 2020, the Director issued an ex parte summons under Order 11 rule 5 and Order 65 rules 1&5 of the Rules of the High Court, Cap 4A (RHC), Rule 16 of the Adoption Rules, Cap 290A and inherent jurisdiction of the Court for service of the originating summons and other court documents on D be dispensed with or alternatively be effected by way of substituted service by advertisement in Wen Wei Po and that such service be deemed good for the purpose of these proceedings.

10.  The Director had further obtained from the Immigration Department copies of the movement records of D of his entry and exit from Hong Kong during the periods from 1 January 2009 to 31 December 2015 and from 1 January 2016 to 6 August 2019.  Such records revealed that D last left Hong Kong on 20 October 2016 and thereafter until 6 August 2019, he did not re-enter Hong Kong.  Thus, D was not in Hong Kong from 2 November 2009 to 15 August 2010, during which period CMC was conceived by the Mother. Mother was confirmed by the Director that she was all along was in Hong Kong during the entire period from 2 November 2009 to 15 August 2010.

11.  Having considered the circumstances of this case, on 30 June 2020, this Court granted an order for service on D of the originating summons and all court documents to be dispensed with. 

12.  The originating summons was fixed for a 1^st hearing before this Court on 13 August 2020.  On that day, having considered all the above, this Court granted the Director’s applications in paragraphs 2 and 3 of the originating summons, namely the presumption that D is the father of CMC under section 5 of the PCO be rebutted, and that further or alternative, D’s consent as CMC’s putative father as required by section 5 (5)(a) of the AO be dispensed with. 

13.  This Court then adjourned the Freeing Application which was directed to be dealt with on paper and further directed CMC, who was then about 9½ years old, be separately represented by the Official Solicitor (“OS”), subject to OS’s consent, and that OS was to submit a report within 2 months and that the Freeing Application to be dealt with on paper.

14.  OS consented to represent CMC and submitted a report on 14 October 2020 (“OS Report”) which had included OS’s observations under the “Adoption Checklist” based on section 1(4) of the Adoption and Children Act 2002 (“2002 Act”).  As set out in this Court’s decision in The Director of Social Welfare v YPC [2020] HKCFI 2290 :

“Section 1 of the 2002 Act stipulates that in “coming to a decision relating to the adoption of a child”, the following provisions shall apply:

(1)  the paramount consideration must be the child’s welfare (which in our case has been amended to “best interests” in 2012), throughout his life – section 1(2) of the 2002 Act;

(2)  the court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child’s welfare [or in the case of Hong Kong, best interests] – section 1(3) of the 2002 Act;

(3)  the court or adoption agency must have regard to the following matters (among others):

(a)  the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding),

(b)  the child’s particular needs,

(c)  the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,

(d)  the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant,

(e)  any harm (within the meaning of the Children Act 1989 (c 41)) which the child has suffered or is at risk of suffering,

(f)  the relationship which the child has with relatives, [with any person who is a prospective adopter with whom the child is placed], and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—

(i)  the likelihood of any such relationship continuing and the value to the child of its doing so,

(ii)  the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,

(iii)  the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.

section 1(4) of the 2002 Act”

15.  The above Adoption Checklist factors set out in section 1 (4) of the 2002 Act are not exhaustive nor binding on the courts in Hong Kong but as has been said, the list provides structure for decisions and ensures that all welfare elements are take into account[1].

16.  Although OS has considered the matters under the Adoption Checklist, it seemed that those factors were only considered in relation to a local adoption.  As this Court’s understanding is that there may be a plan for an intercountry adoption or a “Convention Adoption” under Part 5 of the AO (“Intercountry Adoption”) for CMC, the OS was then asked to clarify whether CMC’s views in relation to an Intercountry Adoption have been canvassed and also whether the Adoption Checklist Factors have been considered by the OS in relation to an Intercountry Adoption.

17.  OS sought further clarification from this Court and on 27 October 2020, this Court directed the OS to (i) obtain CMC’s wishes and feelings under the Adoption Checklist Factors in relation to the possibility of an Intercountry Adoption, having also regard to Articles 4(d) of the Convention (Schedule 3 of the AO); and (ii) to address all the other factors in the Adoption Checklist Factors in relation to the possibility of an Intercountry Adoption.

18.  It was not under 27 November 2020 that OS wrote with their further observations (“Further Report”).  To summarise, due to the inconsistent views expressed by CMC, it is apparent that CMC has not absorbed the concept of Convention Adoption and is yet in a position to give relevant valid consent, and OS is of the view that an Intercountry adoption is not an appropriate option at this stage.

The relevant legal principles

19.  Section 5A(1) of AO sets out as follows:

“(1) Subject to subsection (2), where on an application made by the Director, the Court is satisfied that any consent required by section 5(5)(a) should be dispensed with, it may make an order declaring an infant free for adoption. (emphasis added)

(2) An application in respect of an infant may be made by the Director under subsection (1) only if under any Ordinance the Director is the legal guardian of the infant or the infant is in the care of the Director.

(3) Before making an order under this section, the Court shall notify every person whose consent is to be dispensed with and who can be found (other than a person who is incapable of giving his consent) of the application under subsection (1) and give every such person an opportunity of being heard.

(4) On the making of an order under this section—

(a) all rights, duties, obligations and liabilities of the parents or guardians of the infant, referred to in section 13(1), shall vest in the Director as if the order were an adoption order and the Director were the adopter;

(b) the Director or an accredited body may place, subject to the provisions of this Ordinance, the infant for adoption; and

(c) section 5(5)(a) shall not apply.”

20.  On my reading of the above section 5A(1), even if the Court is satisfied that any necessary consent should be dispensed with, in my view, the Court still retains a discretion as to whether to make an order declaring an infant free for adoption (“Freeing Order”).  There have no authorities submitted to this Court by the Director or the OS which indicate otherwise, nor have there been any authorities submitted as to under what circumstances the Court may or may not make a Freeing Order.

21.  Further, according to my understanding, in a case such as the present case, or where an order is being sought to dispense with the consent of a parent, after a Freeing Order is granted, the child concerned will then be arranged for placement for adoption, whether for a local adoption (where an adoption order will be made by the Courts in Hong Kong) or for an Intercountry Adoption (where an adoption order will be made in the country where the adoptive parent/s are).

22.  In England and Wales, as seen in the judgment of Sir James Munby, the then President of the Family Division in Re B-S [2013] EWCA Civ 1146[2], care orders of a child are made in accordance with section 31 of the Children Act 1989 (“1989 Act”) and placement and adoption orders are made in accordance with sections 21 and 46 respectively of the 2002 Act.  The court in England cannot make a placement order unless either the parent has consented or the court is satisfied that the parent’s consent should be dispensed with[3], and the court cannot dispense with a parent’s consent unless either the parent cannot be found, or lacks capacity to give consent, or the welfare of the child “requires” the consent to be dispensed with[4].  Section 1(2) of the 2002 Act then sets out that in deciding whether or not to make a placement order the paramount consideration of the court must be the child’s welfare “throughout his life”, and section 1(4) sets out the Adoption Checklist referred to earlier.  Further, under section 21(4) of the 2002 Act, a placement order continues in force until it is revoked under section 24 or an adoption order is made.

23.  Although our statutory provisions are differently worded and there are no similar provisions in our AO as sections 1(2) – (4) of the 2002 Act, I find the views expressed by the then President in Re B-S, and also by the UK Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911 to which the President had referred to, are of assistance in a court’s approach towards a child’s placement for adoption.

24.  Re B-S was a case in relation to an appeal by a mother against the refusal to grant her leave to oppose the adoption of two of her children in UK.  The then President had referred to the UK Supreme Court decision in In re B in which it has been said that, orders contemplating non-consensual adoption-care orders with a plan for adoption, placement orders and adoption orders are “a last resort” to be made “only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare”. 

25.  Further, in paragraphs 26- 28 of his judgment in Re B-S, the then President had set out 3 important points emphasised by Lord Neuberger in Re B, namely :

(i)  although the child’s interests in an adoption case are paramount, the court must never lose sight of the fact that those interest include being brought up by the natural family, ideally by the natural parents, or at least one of them, unless the overriding requirements of the child’s welfare make that not possible (Re B, paras 77,104);

(ii)  as required by section 1 (3)(g) of the 1989 Act and section 1(6) of the 2002 Act, the court “must” consider all the options before coming to a decision (Re B, para 77);

(iii)  the court’s assessment of the parents’ ability to discharge their responsibilities towards the child must take into account the assistance and support which the authorities would offer (Re B, para 105).

26.  Re B-S was a case which involved a non-consensual adoption.  Although the present case is not in relation to a non-consensual adoption in that both natural parent have given their consent, and although there are no equivalent statutory provisions in Hong Kong as section 1 (3)(g) of the 1989 Act or section 1(6) of the 2002 Act, in my view, the point in (ii) above is equally applicable to an adoption application in Hong Kong, namely the courts should consider all the options before coming to a decision in relation to an adoption order or a Freeing Order, which will lead to a placement of the child for adoption.

27.  As seen in some cases in England, other options include long term foster care.  In Re S-F (A Child) [2017] EWCA Civ 964, the local authority in England had appealed in relation to the Family Court’s refusal to make a placement order in respect of a 4 year old boy.  As seen in the judgment of Sir Ernest Ryder, Senior President, there were 3 realistic options before the Family Court about which the court heard evidence at the contested hearing.  The options were (i) continued care of the child by his parents (with or without a statutory order); (ii) long term fostering with the child’s existing respite carer; or (iii) adoption.

28.  The judge in the Family Court preferred long term fostering to adoption.  The Local Authority’s appeal was dismissed although Sir Ernest Ryder, the Senior President, had in his judgment referred to the limited evidence upon which the judge made his decision.

29.  Sir Ernest Ryder had also referred to Re V (Children) [2013] EWCA Civ 913 in which Black LJ, as she then was, had allowed an appeal by local authority against an order that two girls aged 9 and nearly 5 should remain in long-term foster case and the refusal of placement orders.  Black LJ held the judge was wrong to conclude that long-term fostering would serve the interest of the two children and she substituted the order with care orders with care plans for adoption and placement orders.  She had made the following observations in paragraph 96 of her judgment:

“(i)  Adoption makes the child a permanent part of the adoptive family to which he or she fully belongs. To the child, it is likely therefore to “feel” different from fostering. Adoptions do, of course, fail but the commitment of the adoptive family is of a different nature to that of a local authority foster carer whose circumstances may change, however devoted he or she is, and who is free to determine the caring arrangement.

(ii)  Whereas the parents may apply for the discharge of a care order with a view to getting the child back to live with them, once an adoption order is made, it is made for all time.

(iii)  Contact in the adoption context is also a different matter from contact in the context of a fostering arrangement. Where a child is in the care of a local authority, the starting point is that the authority is obliged to allow the child reasonable contact with his parents (section 34(1) Children Act 1989).  The contact position can, of course, be regulated by alternative orders under section 34 but the situation still contrasts markedly with that of an adoptive child. There are open adoptions, where the child sees his or her natural parents, but I think it would be fair to say that such arrangements tend not to be seen where the adoptive parents are not in full agreement.  Once the adoption order has been made, the natural parents normally need leave before they can apply for contact. 

(iv)  Routine life is different for the adopted child in that once he or she is adopted, the local authority have no further role in his or her life (no local authority medicals, no local authority reviews, no need to consult the social worker over school trips abroad, for example).”

30.  Suffice to say, the facts of each case are different.  In the present case, neither the Director nor the OS had lodged any written submissions or authorities for the Freeing Application.  This Court has referred to the above cases in England merely to illustrate that in a Freeing Application, all options should be canvassed by the Director, and by the OS (in a case where the child is separately represented by the OS), and that pros and cons of each option should be set out in their reports and/or any supporting affirmations for the Court’s consideration.  In my view, even in a case when a child’s natural parents have both consented to the child being adopted or their consent has been dispensed with, the Director should put forward all options for the Court’s consideration.  This is particularly so in a case concerning an older child who has expressed views of his/her own in relation to an adoption.  There have also been no authorities lodged by the Director or the OS in relation to a case involving a child who does not consent to his/her adoption.   

31.  Anyway, one should not expect the Court to simply rubber stamp the Freeing Application.  With all said in mind, I will now turn to the facts and evidence in the present case.

Discussion

32.  There was only one supporting affirmation filed on behalf of the Director, which contained very little background information on CMC.

33.  As said earlier, there had been care proceedings under the Protection of Children and Juveniles Ordinance, Cap 213 as a result of which CMC became the Director’s ward and under his care.  As further seen in the supporting affirmation, there appeared to have been a Freeing Order made previously in relation to CMC on 20 December 2013 in the Family Court under FCMP 289/2013[5].

34.  It is not clear whether there had been any Social Investigation Reports prepared for submitted in the previous care proceedings or the Family Court proceedings.  There was an “Intake Report” prepared by a Government Psychologist Chan Yuk Lun (“Psychologist”) dated 2 September 2019 (“Intake Report”) produced by the Director. According to the Intake Report, CMC has been taken care of by her foster mother Mrs Chan since July 2011, and that CMC was diagnosed with borderline delay at 3 years 4 months old.  Prior to preparing the Intake Report, the Psychologist saw CMC during 3 sessions in the month of August 2019, namely the 1^st, the 9^th and the 16^th August 2019. 

35.  During those 3 sessions, CMC was observed to have spontaneous interaction with Mrs Chan and that they seemed to enjoy a stable and warm relationship.  The observations made by the Psychologist at the time was that CMC was in need of more help and time to digest the concepts related to adoption and to understand them in more concrete ways[6].  On the other hand, the Psychologist regarded it as crucial to take into consideration CMC’s need for lifelong guidance to face future challenges, as far as permanency was concerned, and that such guidance was best to be provided by caregivers from a permanent family and thus adoption as a permanency option should be given priority.

36.  There was no further updated report at the time of the hearing before this Court in August.  Further as the Psychologist was of the view that CMC was in need of more help and time to understand the concepts of adoption, this was also one of the reasons why the Court decided to direct CMC to be separately represented by the OS.

37.  In the present case, CMC has been under the foster care of Mrs Chan for some 9 years, which meant not long after she was born.  She has established a close relationship with Mrs Chan.  It is said in the OS Report that the present foster home is not meant to be a permanent placement for CMC, but there is no evidence of any views from Mrs Chan, or any reason why the present foster home arrangement cannot continue until, say, CMC reaches majority.  There is also no evidence as to whether any long term foster care arrangement is possible.  In fact, there is no sufficient evidence that all possible options have been canvassed, nor is there any evidence on pros and cons of each option.

38.  There is also no evidence as to whether any approach has been made to Mother’s family or Father’s family as to whether any of CMC’s family members will be interested in caring for her. As set out earlier, Mother’s 2^nd child was being cared for by Mother’s paternal aunt.   Although in the OS Report, it is stated that CMC has no memory of having any connection with her biological parents and/or half-blood siblings, there has been no evidence as to whether it is possible to have both CMC and her half brother to be placed together for foster care or for adoption.

39.  In particular, there is no evidence as to how CMC’s needs will be met in future, and her ability to adapt and to integrate with a new family, and in particular, if for an Intercountry Adoption, her ability to integrate will depend on her language ability to communicate with her new family.  Further, there seems also to have been no consideration as to whether CMC will suffer any psychological harm if removed from her present foster parents and her present environment and placed in an entirely new foreign environment. 

40.  As for CMC’s wishes and feelings, Article 12(2) of the United Nations Convention on the Rights of the Child recognizes that a child does have views which should be given due weight in accordance with his age and maturity and “for this purpose the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child either directly or through a representative or an appropriate body in a manner consistent with the procedural rules of national law”.  In light of CMC’s age, I am of the view that due weight should be placed on CMC’s own wishes and feelings.  

41.  In fact, I find it surprising that if it is indeed the Director’s plan for an Intercountry Adoption for CMC, why this has not been canvassed with CMC earlier.  What is clear is that CMC has expressed inconsistent views and from what I could gather, she has pointed out that she does not want to be adopted by parents with whom she cannot not communicate for the reason that her English is not good. 

42.  Finally, as mentioned earlier, there has already been a Freeing Order made by the Family Court on 20 December 2013, which seemed to be prior to the Mother’s consent and/or the Father’s consent being obtained, and which seemed to be for a local adoption.  It is not clear as to what has happened in those proceedings or since the Freeing Order made therein.    

Conclusion

43.  In short, there has been a total lack of information before this Court.  I am aware that there has already been a long delay before this matter was brought before this Court, and any delay is not in the interests of CMC.  However, having considered the circumstances of this case, the lack of sufficient evidence, in particular on the possible options, and in light of CMC’s own wishes and feelings and OS’s views in the Further Report, I am not satisfied at this stage that making the Freeing Order for an Intercountry Adoption is in the welfare or the best interests of CMC throughout his life.

44.  I am therefore of the view that the Freeing Application should be adjourned sine die with liberty to restore, with no order as to costs and this is the order I hereby make.