DIRECTOR OF SOCIAL WELFARE v. LPK

HCAD 19/2023

[2023] HKCFI 2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADOPTION APPLICATION NO 19 OF 2023

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HCAD 20/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADOPTION APPLICATION NO 20 OF 2023

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HCAD 21/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADOPTION APPLICATION NO 21 OF 2023

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(Heard Together)

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REASONS FOR DECISION

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INTRODUCTION

1.  Before the Court were 3 originating summonses issued by the Director of Social Welfare (“Director”) as guardian appointed for the 3 children for them to be freed for adoption under section 5A of the Adoption Ordinance, Cap 290 (“Ordinance”), and for an order to dispense with any consent of the defendant required under section 5(5)(a) of the Ordinance.

2.  The defendant is the natural mother of the 3 children respectively aged 7, 6, and 5 who were born out of wedlock.  According to their mother, their father is one TSL, whose name appears as father on the birth certificates of 2 out of the 3 children and who is the father of also 4 other children born out of his relationship with the defendant.  The defendant reportedly married a Mr Tsang in November 2012 but there were no children born out of that marriage.  According to the defendant, she and Mr Tsang separated over 10 years ago in 2013 and they were divorced in June 2018.  The Director had sought a declaration that any legal presumption that Mr Tsang was the father of the 3 children under section 5 of the Parent and Child Ordinance, Cap 429 be rebutted.

3.  Having considered the affirmations, reports and other supporting evidence produced by the Director, and having considered the “Adoption Checklist”, this Court was satisfied that adoption is in the best interests of all 3 children and that the grounds under section 5(5)(a) of the Ordinance were also satisfied.  At the hearing, I granted an order for them to be freed for adoption and that any consent of the defendant mother be dispensed with.  I also declared that any legal presumption that Mr Tsang was the father of the 3 children be rebutted.

4.  At the hearing, this Court also imposed an undertaking upon the Director in the event of a Convention adoption (as defined in the Ordinance), being considered for the 3 children.  After the hearing and upon further consideration, the Court has now amended the undertaking to read as follows:

“Upon the Director undertaking to the Court to continue to provide counselling and information to the child in accordance with Article 4 (d) of Schedule 3 of the Adoption Ordinance, Cap 290, and to obtain his/her consent to the specific adoption concerned in the event of a Convention adoption, where such consent is required, and/or his/her wishes and opinions to the specific adoption and to inform the Court of any changes in the child's consent, wishes and opinions , until such time when the Court makes an order under section 23B of the Adoption Ordinance , Cap 290 to pass the care and control of the child to a person authorized by the Director with a view to a Convention adoption of the child by a person not residing in Hong Kong”. (“Undertaking”)

5.  I set out my reasons hereinafter for imposing the Undertaking.

THE HAGUE CONVENTION ON PROTECTION OF CHILDREN AND CO-OPERATION IN RESPECT OF INTERCOUNTRY ADOPTION (“1993 ADOPTION CONVENTION”)

Brief background

6.  The 1993 Adoption Convention was concluded on 29 May 1993 and People’s Republic of China signed and became a contracting party to the 1993 Adoption Convention on 30 November 2000, which was ratified on 16 September 2005.  The Adoption Convention came into effect in Mainland China on 1 January 2006.

7.  In accordance with the Basic Law of the Hong Kong SAR, the Central People’s Government decides that the 1993 Adoption Convention applies to Hong Kong SAR.

8.  Amendments were then introduced to the Ordinance to include new provisions in relation to an adoption under the 1993 Adoption Convention (“Convention adoption”).  

9.  Schedule 3 of the Ordinance sets out those articles of the 1993 Adoption Convention which shall have the force of laws in Hong Kong subject to the provisions of Part 5 of the Ordinance.

10.  The commencement date of those new provisions in the Ordinance in relation to Convention adoption was 25 January 2006.

Article 4

11.  Article 4 of the 1993 Adoption Convention states as follows:

“Article 4

An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin—

(a)  have established that the child is adoptable;

(b)  have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child’s best interests;

(c)  have ensured that—

(1)  the persons, institutions and authorities whose consent is necessary for adoption, have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin,

(2)  such persons, institutions and authorities have given their consent freely, in the required legal form, and expressed or evidenced in writing,

(3)  the consents have not been induced by payment or compensation of any kind and have not been withdrawn, and

(4)  the consent of the mother, where required, has been given only after the birth of the child; and

(d)  have ensured, having regard to the age and degree of maturity of the child, that—

(1)  he or she has been counselled and duly informed of the effects of the adoption and of his or her consent to the adoption, where such consent is required,

(2)  consideration has been given to the child’s wishes and opinions,

(3)  the child’s consent to the adoption, where such consent is required, has been given freely, in the required legal form, and expressed or evidenced in writing, and

(4)  such consent has not been induced by payment or compensation of any kind.”

Explanatory Report by G Parra-Aranguren, 31 December 1993

12.  At the time of the conclusion of the 1993 Adoption Convention, there was an explanatory report prepared by G Parra-Aranguren dated 31 December 1993, which explained in detail the background of each article (“Explanatory Report”).

13.  In paragraph 108 of the Explanatory Report, it is explained that the “introductory phrase” of Article 4 defines the responsibilities to be discharged by the State of origin and no Convention adoption shall be granted, unless the competent authorities of the State of origin have verified compliance with those specific conditions set out, namely (a) the adoptability of the child, (b) respect of the “Subsidiarity Principle”[1]; (c) the obtaining of the necessary consents of other persons other than the child, and (d) if required, the wishes, opinions and/or consent of the child. These conditions represent minimum safeguards that cannot be disregarded, it being understood that for the granting of the adoption, additional requirements might be imposed by the Contracting State where it takes place.  These minimum safeguards were considered necessary to “ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights.”

14.  Insofar as Article 4 (d) is concerned, as explained in paragraph 156 of the Explanatory Report, the “introductory phrase” of sub-paragraph (d) is aimed to develop the principles contained in Article 12 of the UN Convention on the Rights of the Child (“CRC”).

15.  Article 12 of the CRC states as follows:

“1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2.   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.”

16.  Further, as set out in paragraph 156 of the Explanatory Report, to fulfil this responsibility, the competent authorities of the State of origin have to take into account “the age and degree of maturity of the child”.

17.  Earlier, in paragraph 130 of the Explanatory Report , in relation to Article 4 (c)(1), it has been explained by the learned author that the consents shall be given after appropriate counselling and to facilitate compliance with this condition, and to facilitate compliance with this condition, Article 9(c), prescribes that the Central Authorities of the Contracting States are to take, directly or through public authorities or other bodies duly accredited in their States, all appropriate measures, in particular to “promote the development of adoption counselling and post-adoption services in their States”.

18.  In addition to the above comments made by the learned author in relation to Article 4(c)(i), as observed by the learned author in paragraph 160 of the Explanatory Report, Article 4(d)(1) requires due counselling and information “of the effects of the adoption”.

19.  The learned author explained that Article 4(d)(1) shall be understood similarly as Article 4(c)(1), ie to give counselling and information of the effects provided by Article 26 (a) and (b); also as to whether the adoption terminates the pre-existing legal relationship between the child and his or her mother and father, and as the case may be with his or her family, as mentioned by of Article 26(c), and the possibility of its conversion as permitted by Article 27.

20.  Articles 26 and 27 have not been included in our Schedule 3 of the Ordinance but they have been given effect by amongst others sections 20F and 20G of the Ordinance.  Section 20F of the Ordinance sets out, subject to sections 20G and 20H of the Ordinance, a Convention adoption shall for the purposes of the Ordinance and all other Ordinances, have the same effect as an adoption order validly made in accordance with the Ordinance in respect of a “full adoption”, and shall have no other effect.

21.  “Full Adoption” in section 20G(2) of the Ordinance is then defined to mean “an adoption by virtue of which the adopted person falls to be treated in law as if he were not the child of any person other than the adopter”.  

22.  The general effects of adoption orders have also been set out under Part 3 of the Ordinance.

23.  In paragraph 161 of the Explanatory Report, the learned author had further stated that:

“161. As already remarked, the consent of the child, having regard to his or her age and maturity, shall be given not to the adoption in general, but for the specific adoption in a particular case, since it would be against his or her fundamental rights to have the child adopted without even knowing who the adoptive parents are going to be.”

24.  As Article 4(d)(1) only imposes the obtaining of the consent of the child “where required ”; the determination of the cases where it must be obtained shall be decided by the applicable law of the State of Origin.  

25.  It was further explained in paragraph 164 of the Explanatory Report that Article 4(d)(2) prescribes that even though the consent of the child is not always required, the competent authorities of the State of origin shall give consideration to the “child’s wishes and opinions”, it being understood that it is not enough to permit the child to express himself/herself, but to have his/her wishes taken into account. 

26.  Under section 3(1)(a)(iii) of our Guardianship of Minors Ordinance, Cap 13, in relation to custody or upbringing of a minor, it is mandatory for the Hong Kong court to have regard the best interests of the minor as first and paramount consideration and in having such regard, shall give due consideration to, amongst other things, the views of a minor child if, having regard to the age and understanding of the minor and to the circumstances, it is practicable to do so.

27.  Further, as pointed out by the learned author of the Explanatory Report, Article 4(d)(2) should be read in conjunction with Article 16(c), requiring that once the Central Authority of the State of origin is satisfied that the child is adoptable, it shall ensure that the consents have been obtained in accordance with Article 4.

CONCLUSION

28.  As previously stated by this Court, in considering the child’s best interests in an adoption, the matters in the Adoption Checklist[2] should be considered. 

29.  Having considered the comments and explanations in the Explanatory Report, and having regard to Article 12 of CRC, I am of the view that: (i) even though there is no statutory requirement in Hong Kong to obtain the consent of the child to an adoption, depending on the age and degree of maturity of the child, the child should receive counselling and information of the effects of an adoption, in particular effects of a Convention adoption; (ii) his consent and/or wishes and/or opinions to the specific adoption should be considered and taken into account.

30.  For these reasons and in light of my above views, I have imposed the Undertaking as amended.

31.  Although the present applications were heard in chambers not open to public, I authorise these Reasons to be published and uploaded to the Judiciary Legal Reference website, unless written objection with reasons from the Director are received by this Court within 7 days.