DIRECTOR OF SOCIAL WELFARE v. HPL AND ANOTHER

HCAD 12/2020

[2021] HKCFI 3874

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADOPTION APPLICATION NO 12 OF 2020

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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 3 Children, (T, L, and H) free for adoption and dispensing with the 1^st and 2^nd Defendants’ consent.

2.  The 3 Children were all born to the 1^st Defendant (“Mother”) and the 2^nd Defendant as putative father (“Putative Father”) whose name appears on the birth certificates of the Children:

(1)  T, a girl, was born on 25 May 2007 and is now aged 14.

(2)  L, a boy, was born on 31 March 2009 and is now aged 12.

(3)  H, a girl, was born on 11 January 2011 and is now aged 10.

The Defendants were cohabitees when the Children were born.

3.  The Mother has not contacted the Children since October 2015.  In view of the Mother’s inability to take care of the Children, the Director was appointed legal guardian of the Children on 29 January 2016.

4.  On 27 November 2020, the Director made this application by originating summons on the grounds that the Mother has abandoned and/or neglected the Children, that the Mother cannot be found and that in all the circumstances of this case, the Mother’s consent ought to be dispensed with.  The Director does not consider the Putative Father to be a person whose consent to adoption orders for the Children is required.

5.  The originating summons and affirmations have been served on both the Mother and the Putative Father.  Neither of them have responded or appeared at this hearing.

B.    LEGAL PRINCIPLES

6.  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. 

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

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

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

(iii)  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.

8.  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.”

9.  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”) his father.

10.  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?

11.  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.

C.    THE PARENTS OF THE CHILDREN

12.  There can be no dispute that the Mother is the birth mother.

13.  The Putative Father has never applied, nor indicated an intention to apply, under section 3(1)(d) of GMO for a court order to give him any right or authority over the Children.  He does not fall within the definition of parent under section 2 of the Ordinance and, hence, not a person whose consent to free the Children for adoption is required.

D.   STAGE 1: ADOPTION IS IN THE BEST INTEREST OF THE CHILDREN

14.  T was physically abused, with multiple bruises, when she was about 4 months old.  She has since been placed in out-of-home care.

15.  L was placed under the care of a children’s residential home since he was 2 months old when the Mother and Putative father were imprisoned.  He has since been placed in out-of-home care. 

16.  H has been in out-of-home care since she was 5 months old.  The maternal grandmother took care of H from January 2015 to until she gave up in November 2015 due to her own health and her view that the Mother should take up the responsibility.

17.  Currently, T and L are staying in the same foster home, whilst H is in another. The Children have been attending regular gatherings arranged by the caseworker since 2019. The 2 elder Children are on closer terms between them than with H.

18.  The Children are healthy, save that T and L have been diagnosed with ADHD in 2017 and require medical follow up and medication.

19.  None of the Children have idea or affection towards their parents or any relative of the original family. 

D1.  T and L’s views towards adoption

20.  T and L first knew about the idea of adoption in 2018.  Since then, they have started to discuss and have made joint decisions on adoption. They are receptive to the idea of adoption.

21.  According to the current foster mother, T has more experience of staying out, such as camping with schoolmates and is more independent and adaptive to novel situations.  On the other hand, the foster mother observes that T seems to be less careful in making decisions and L may be able to remind T to think carefully before acting.

22.  According to the clinical psychologist, it is likely that T and L will be able to form a new bond with others in future, including adoptive parents.

D2.  H’s views towards adoption

23.  H strongly dislikes the Mother for abandoning her.  H basically shows acceptance to the adoption plan although she does not have full comprehension of the adoption issue.  She emphasizes that she wants adoptive parents who would love and care for her and never abandon her.

24.  H has initially rejected the idea of adoption as she did not want to separate from her foster mother.  She has become more receptive to the idea upon given more information.  She harboured worries about adoption but was quick in coming up with strategies to solve them.

25.  In a recent assessment on 11 January 2021, H has given verbal consent to adoption by people who love and care for her.  During a further assessment on 2 September 2021, H expressed excitement at the prospect of being adopted and her previous hesitation and doubts were gone.  She has a preference for overseas adoption.  She wants to have adoption with T and L, whether overseas or locally.  However, she is also willing to be adopted alone without them, whether overseas or locally.

D3.  Clinical psychologist’s assessment

26.  The Children have been assessed by clinical psychologist to be ready and willing for adoption to the following extent:

(1)  For L, the presence of T is of utmost importance; he must be with T whether the adoption is overseas or local.

(2)  For T, she does not want to be adopted alone but accepts being adopted with L or H.

(3)  For H, she accepts adoption, either with her siblings or alone.

D4.  The Director’s proposals

27.  A permanent home with an adoptive family can provide lifelong support for the Children, whereas foster care is not of long term and will cease when each child reaches the age of 18 or when the foster parents become unavailable.  The Children understand this.

28.  T and L prefer local to overseas adoption, whilst L prefers overseas adoption more than local.  Even with overseas adoption, H wishes to maintain contact with her siblings.

29.  The Director suggests that local adoption should first be attempted as the Children will have more opportunities for mutual support, less language barrier and it would be easier for the Children to integrate into the new environment.  Overseas adoption will be attempted if there no available local adoptive family.  Any language barrier would be dealt with by preparation before the Children’s departure.  When the Children are of more mature age, they would have the basic skills for problem solving and adapting to new environment.

30.  The Director considers that following proposal to be in the best interest of the Children:

(1)  T and L be adopted by the same family either locally or overseas, if the adoption of all 3 Children together cannot be arranged; and

(2)  H be adopted alone either locally or overseas, if adoption of all 3 Children together cannot be arranged.

D5.  Applying the Adoption Checklist

31.  The caseworker and clinical psychologist have prepared very helpful reports.  It could be seen that the Children were explained the concept of adoption and its difference from foster care.  The caseworker and clinical psychologist have explored the various combinations of adoption overseas or locally, and adoption of 3 siblings jointly or individually.  The Children understand and were able to express their preference, their worries and their strategies to cope with challenges.  They look forward to being adopted together and tend to hold positive expectations about life after adoption. 

32.  Given their respective age and their informed views, the Court gives great weight to their views.  It is apparent that the Children maintain good relationship among themselves and this factor is a “particular need” of the Children in this case.  As far as possible, any adoption proposal should meet and not undermine that need.

33.  Having regard to the fact that the Children have no affection to the original family or relatives, it is unlikely that their ceasing to be a member of the original family will have adverse effect or create harm on the Children.

34.  H may have attachment to her foster parents but she appears to be able to formulate “strategies” to maintain contact after adoption.  I do not anticipate major problems arising in this aspect.

35.  Having considered the Adoption Checklist, I am of the view that the Director’s proposals in paragraphs 29 and 30 above are in the best interest of the Children.

E.    STAGE 2: GROUNDS FOR DISPENSATION OF CONSENT

E1.  Background of the Mother and the Putative Father

36.  The Mother had had behaviour problem when she was a girl.  She has 5 children including the 3 Children in this case.  She got married at the age of 18 and gave birth to a son.  She separated from her husband and has lost contact with the husband and son.  She then gave birth to the 3 Children. After separation with the Putative Father in 2012, the Mother gave birth to another son with her boyfriend in September 2014.  The relationship with the boyfriend ended in 2015.  Whereabouts of the 5^th son is unclear.

37.  The Mother had been sentenced to imprisonment repeatedly since around 2007 and after the Children were born.  She is believed to be an occasional drug user and has been sent to a Drug Addiction Treatment Centre in the past.

38.  The Putative Father is known to be a drug addict and has been in and out of prison. 

E2.  Abandonment and neglect

39.  The Mother has not contacted the Children since October 2015.  Even in the past, she rarely visited the Children.  She has not turned up for scheduled meetings and failed to keep her promise to prepare home restoration for the Children despite reminders from the caseworker.  She has totally disregarded her parental duties over the Children.  She has declined visit by the caseworker in 2016 whilst she was in prison.  She has become untraceable since November 2016.

40.  Her past attitude towards at least the first 4 children she gave birth to shows that the Mother has no regard for the Children’s welfare and her inability to take care of them.  She has plainly abandoned and/or neglected them.

41.  The Mother’s irresponsible attitude and lack of trace have delayed the Children from having the chance to receive love and care from an adoptive family.

42.  The Putative Father has been uncontactable by caseworkers since 2012. He has been served with the court documents and correspondence regarding this application but he has never filed an acknowledgement of service nor responded.  He has never turned up in the past to discuss about the welfare of any of the Children.  He plainly has no interest in the Children, no intention to exercise any parental rights over them, and has never taken up any parental responsibility.

E3.  Parents cannot be found

43.  The Director has taken all reasonable steps to find the Mother through the use of phone calls, emails, notices in newspaper and radio broadcasts, visits to her last known addresses, making enquiries with her family members, conducting address search with government departments, and search of movement record with the Immigration Department, but to no avail. 

44.  The Director has also tried to trace the Putative Father by advertisement, broadcast, public notice, contact with the paternal grandfather but to no avail.

E4.  Consent ought to be dispensed with

45.  Since the Mother has abandoned and/or neglected the Children and cannot be found, it is in all the circumstances reasonable to dispense with her consent. 

46.  Likewise, the Putative Father has abandoned and/or neglected the Children.  Even if he is the birth father, it is in all the circumstances reasonable to dispense with his consent.

E5.  Other relatives who may be able to take care of the Children

47.  The maternal grandmother, maternal aunt and uncle were not willing to take care of the Children as they considered that to be the responsibility of the Mother.

48.  Specifically, the maternal grandmother (aged 66) was contacted in December 2019.  She did not object to the proposed adoption of T and L and no comment on the adoption plan for H.  She indicated that she was unable to take care of H.  Indeed, she has not maintained any contact with the Children since about 2016.

49.  Likewise, the maternal uncle and paternal grandfather agreed to the adoption of T and L.

50.  There is thus no relative who can take care of the Children.

51.  In my view, placing the Children in a stable family/families and having them taken care of by adoptive parents is in their best interests.

F.    CONCLUSION

52.  Having regard to the above analyses, I make an order that the 1^st Defendant’s consent be dispensed with and that the 3 Children be freed for adoption on the terms set out in paragraphs 29 and 30 above with priority for local adoption.  There shall be expedited processing of the adoption procedure, having regard to the ages of the Children.

53.  The Director asks that for privacy reasons, the Court should make separate sets of orders for each of the Children to facilitate processing of adoption.  I so order.

54.  I thank Ms Fong, the caseworker Ms Cha Suk Han, and the clinical psychologists Ms Kitty Wong and Mr Chan Yuk Lun for their assistance.