DIRECTOR OF SOCIAL WELFARE v. HKL AND ANOTHER

HCAD 6/2023

[2023] HKCFI 1123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADOPTION PROCEEDINGS NO. 6 OF 2023

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JUDGMENT

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INTRODUCTION

1.  This is an application made by the Director of Social Welfare (“the Director”) pursuant to section 5A of the Adoption Ordinance (Cap.290, Laws of Hong Kong) (“the Ordinance”) for an order declaring an infant, HHY (“the Infant”), be freed for adoption, dispensing with the consent of the 1^st respondent as required under section 5(5)(a) of the Ordinance and for a declaration that the presumption that the 2^nd respondent is the father of the Infant be rebutted pursuant to section 5 of the Parent and Child Ordinance (Cap. 429, Laws of Hong Kong) (“PCO”).

BACKGROUND

2.  The Infant was born on xx June 2020, and is now around 2 years and 10 months old. Madam XXXXXXX (“Mother”) is the Infant’s mother.

3.  The 1^st respondent is stated to be the father on the Infant’s birth certificate. According to Mother, the Infant was born out of her intimate relationship with the 1^st respondent, despite the fact that Mother married another man, the 2^nd respondent, on xx December 2009 and remained to be so at least up to April 2022. Mother alleged that she had separated with the 2^nd respondent for over 7 years, had not maintained any contact with him and has no idea as to his current whereabouts. Mother’s family members also stated that they had never met the 2^nd respondent and knew nothing about him.

4.  The Infant was the second child of Mother and the 1^st respondent, and she has an elder brother (“Brother”) and a younger sister (“Sister”). The Infant has never met Brother or Sister who are now around 7 years old and 10 months old respectively.

5.  Records reveal that Mother and the 1^st respondent are drug addicts. Mother has a history of taking ketamine and cocaine for years. The 1^st respondent has a history of abusing ketamine and he also admitted that he maintained the habit to take drugs. Both of them have drug-related criminal records. In particular, the 1^st respondent was sentenced to 10 years’ imprisonment at the age of 21 for manufacturing dangerous drugs. He kept taking drugs even after he was released from prison in 2015.

6.  The Infant’s urine toxicology tests were positive for cocaine and metabolities at birth. Considering that Mother continued to take drugs without having any thought on the possible harm to the Infant during pregnancy, a Multi-disciplinary Case Conference on Protection of Child with Suspected Maltreatment was held on 23 June 2020, and it was concluded that this is a child maltreatment case, and the type of maltreatment behaviour was child neglect.

7.  Upon the Infant’s discharge from the hospital, she was admitted to Tuen Mun Children and Juvenile Home. While Mother initially escorted the Infant to receive immunization and follow-up appointments between July and December 2020, she soon lost interest in the welfare of the Infant. Having visited the Infant once on 16 June 2021, Mother paid no further visit to the Infant afterwards.

8.  By an order dated 25 August 2020 and an Amended Order dated 25 May 2021 made by the Eastern Juvenile Court, the Infant was put on a Care or Protection Order for 18 months and was committed to the care of Po Leung Kuk.

9.  On 25 October 2021, Mother gave consent for the Infant to be adopted and thus relinquished her parental rights, by signing a Statutory Declaration and Form 4A.

10.  On 9 November 2021, the applicant was appointed as the legal guardian of the Infant.

11.  On 19 January 2023, the applicant filed the present application to free the Infant for adoption on the following grounds:-

(1)  In respect of the 1^st respondent:

(a)  he has abandoned and/or neglected the Infant;

(b)  his consent has been unreasonably withheld; and

(c)  in all the circumstances of this case, his consent ought to be dispensed with;

(2)  In respect of the 2^nd respondent:

(a)  the presumption of paternity under section 5 of the PCO should be rebutted, such that his consent under section 5(5)(a) of the Ordinance is not required; and

(b)  further or alternatively, his consent ought to be dispensed with as (i) he has abandoned and/or neglected the Infant; (ii) he cannot be found; and (iii) in all the circumstances of this case, his consent ought to be dispensed with.

12.  On 20 January 2023, this Court ordered that service on the 2^nd respondent of the Originating Summons and other Court documents filed herein be dispensed with.

THE LEGAL PRINCIPLES

Presumption as to paternity

13.  Under section 5(1)(a) of the PCO, a man shall be presumed to be the father of a child if he was married to the mother of the child at any time and if there arises by virtue of that marriage a presumption of law that the child is the legitimate child of that man.

14.  Such a presumption may be rebutted by proof on a balance of probabilities: Section 5(2), PCO.

15.  In Kwan Chui Kwok & Another v Tao Wai Chun & Others [1995] 1 HKC 374, P Chan J (as his Lordship then was) had the following to say at 412:

“[…] Where, as in the present case, there is no scientific evidence or evidence from the parents, the question of whether a person is the lawful and natural child of his parents is by no means an easy one. It must be approached from a common sense point of view, having regard to the evidence available and all the relevant circumstances in the light of the so-called presumption of legitimacy. In my view, the starting point in such a case must be the conduct of the parents. In the normal case, the parents would apply for a birth certificate for their child from the Registry of Births and Deaths. This would be an important piece of evidence going to show the legitimacy of the child. If the birth certificate was obtained within a few days of the birth of the child, this would be, to some extent, a “contemporaneous” document. But I think the importance of this lies in the fact that the parents had taken the trouble of applying for the birth certificate and this act or conduct would amount to a declaration against their own interests. I say this because acknowledging to be the parents of the child, the parents had imposed upon themselves the duty and the responsibility to take care of the child and to bring it up. Furthermore, by doing so, the parents had in effect conferred upon the child a right to inheritance in the case of intestacy upon their deaths. […]”

Freeing application

16.  Under section 5(5)(a) of the Ordinance, an adoption order shall not be made without the consent of every person who is a parent of the infant.

17.  The consent required under the said section 5(5)(a) of the Ordinance may be dispensed with by the Court pursuant to an application made under section 5A of the Ordinance, and whereupon the Court may make an order declaring an infant free for adoption.

18.  However, it should be noted that if an application in respect of an infant is made by the Director, the Court should only make an order freeing an infant for adoption if under any Ordinance the Director is the legal guardian of the infant or the infant is in the care of the Director: section 5A(2) of the Ordinance.

19.  In Director of Social Welfare v YKK [2021] 4 HKLRD 30, [2021] HKCFI 2078, Bebe Chu J adopted a two-stage process in a freeing application:

(1)  Is adoption in the best interest 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?

20.  It is now trite that, as far as stage 1 is concerned, the Court shall have regard to the Adoption Checklist when considering whether adoption is in the best interest of the child. The Adoption Checklist has been set out in Director of Social Welfare v YPC [2020] HKLRD 233, [2020] HKCFI 2290 at [69]:

“[…] s.1 of the [Adoption and Children Act 2002] 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 – s.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] – s.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).”

21.  In relation to stage 2, the Court may dispense with any consent required by section 5(5)(a) of the Ordinance pursuant to section 6(1) thereof if it is satisfied that:

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

(2)  Where a person is liable by virtue of an order or agreement to contribute to the maintenance of the infant, that person has persistently neglected or refused so to contribute;

(3)  The parent cannot be found or is incapable of giving his consent or that his consent is unreasonably withheld; or

(4)  The parent’s consent ought, in all the circumstances of the case, to be dispensed with.

22.  In Re C (Adoption: Consent) [2012] 1 HKLRD 308, Poon J (as Poon CJHC then was) explained the meaning of “abandonment” and “neglect” as follows:

“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: Watson v Nikolaisen [1955] 2 QB 286, 295 (Lord Goddard)

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.”

23.  His Lordship also took the view that, to invoke the ground of “nowhere to be found” under section 6(1)(c) of the Ordinance, the Director must have taken all reasonable practicable steps to locate the respondent: Re C (Adoption: Consent) (supra), at [29].

24.  In Director of Social Welfare v DT [2008] 3 HKLRD 192, Hartmann J (as he then was) held that:

“27. S.6(1) of the Adoption Ordinance provides that this court may dispense with the mother’s consent if her consent is unreasonably withheld. I am enjoined by the statute, therefore, to consider whether, in all the circumstances, the refusal by the mother to give her consent is – judged objectively – unreasonable. In his speech in In re W. (an infant) [1971] AC 683, in considering the English statutory provision to the exact same effect as s.6(1), Lord Hailsham described the test in the following terms :

‘From this it is clear that the test is reasonableness and not anything else. It is not culpability. It is not indifference. It is not failure to discharge parental duties. It is reasonableness, and reasonableness in the context of the totality of the circumstances. But, although welfare per se is not the test, the fact that a reasonable parent does pay regard to the welfare of his child must enter into the question of reasonableness as a relevant factor. It is relevant in all cases if and to the extent that a reasonable parent would take it into account. It is decisive in those cases where a reasonable parent must so regard it.’

28. What is or is not reasonable is, of course, a question of fact and degree.

29. In my view, the test – in this case – may be expressed in the following question. Recognising that, if at all possible, for the benefit of both parties, a mother should be able to raise her own child, is the mother nevertheless, in declining to give consent, refusing to acknowledge the realities that point so clearly to her inability – past, present and future – to be able to care for her child and, in that refusal, is she prejudicing the child’s manifest best interests and thereby acting unreasonably?”

25.  Even if the Court has decided to dispense with the consent required under section 5(5)(a) of the Ordinance, it does not necessarily mean that the Court must make a freeing order as a matter of course. In this regard, what Bebe Chu J reminded in Director of Social Welfare v HJX [2021] 1 HKLRD 519, [2020] HKCFI 3127 as follows is instructive:

“30. […] 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. […]”

26.  With the above in mind, I will now turn to consider the applications in the present case.

DISCUSSION

Presumption as to paternity of the 2^nd respondent

27.  By virtue of section 5(1)(a) of the PCO, the 2^nd respondent is presumed to be the father of the Infant. However, this presumption may be rebutted. In the circumstances of the present case, I am satisfied that this presumption is rebutted on a balance of probabilities, for the following reasons:

(1)  According to Mother, the Infant was born out of her intimate relationship with the 1^st respondent;

(2)  According to Mother, she had no contact with the 2^nd respondent for over 7 years;

(3)  The 1^st respondent as opposed to the 2^nd respondent was registered as the father of the Infant on her birth certificate;

(4)  No evidence suggests that the 2^nd respondent has had any contact with the Infant since she was born in 2020.

28.  That being the case, consent is not required to be sought from the 2^nd respondent for the purpose of section 5(5)(a) of the Ordinance.

The two-stage test: Stage 1

29.  As explained, at this stage, the Court has to consider the Adoption Checklist which I will do below.

The Infant’s ascertainable wishes and feelings

30.  As the Infant is still less than 3 years old, she is too young to comprehend the meaning and implication of adoption.

The Infant’s needs

31.  As the Infant is in her formative years, it is essential for her to be provided with a permanent and stable family environment instead of growing up in different residential care settings with changing carers.

The likely effect on the Infant being adopted

32.  It appears that the Infant does not have any recollection of Mother nor her birth father. She has never met the 2^nd respondent. Over the past two years, she has been under the care of Po Leung Kuk Babies’ Section (“PLKBS”). Therefore, if adoption is arranged, it would not have any significant adverse impact on her.

The Infant’s characteristics

33.  The Infant is gentle and reserved in personality. In August 2022, She was assessed to have borderline global developmental delay in cognition and mild delay in oral language and motor skills. As at November 2022, both her weight and height fell within the normal range of the growth chart. She enjoys good health and is able to follow the normal routines of PLKBS without the need of any special assistance. She is expected to be able to adapt to most home environments with ease.

The Infant’s relationship with relatives and other relevant persons

34.  The Infant has had no bonding with her original family since her birth. All along, no member of her original family has taken part in her welfare arrangements. No one in her original family (including her grandparents and maternal uncle) is willing to take care of her. She has established no relationship, not to mention close relationship, with any of them. She also has never met her siblings.

35.  Having considered all the circumstances of the present case, I am of the view that adoption would be in the best interest of the Infant.

The two-stage test: Stage 2

36.  As Mother has given her consent and given the presumption of the 2^nd respondent’s parental relationship with the Infant has been rebutted, the only question here is whether the consent from the 1^st respondent should be dispensed with.

37.  Since the birth of the Infant, the 1^st respondent has never taken up his parental duty and responsibility. Although he had attended the court hearing for Care or Protection Order on 28 July 2020, arranged day leave for the Infant on 7 October 2020 and paid a visit to her on 5 May 2021, he was not involved in her essential welfare matters including medical appointment, placement arrangements and financial contribution. He has never taken any initiative to contact the case worker to update the condition of the Infant or discuss her welfare plan. Despite the fact that the case worker has repeatedly invited him to attend interviews in October 2021 and discuss the Infant’s welfare plan and to attend court hearing at the Eastern Juvenile Court on 8 November 2021, the 1^st respondent made no response and did not turn up.

38.  In view of the aforesaid circumstances, I am satisfied that the 1^st respondent has simply given up the Infant and has left her to her fate. He has abandoned the Infant. The requirement under section 6(1)(a) of the Ordinance is therefore satisfied. The consent from the 1^st respondent should thus be dispensed with.

39.  That being the case, without disrespect to counsel, I do not propose to consider the other grounds under section 6(1) of the Ordinance relied on by the applicant.

Other options

40.  In discharge of her duty, the applicant has set out the pros and cons of all options for the raising of the Infant for the Court’s consideration.

41.  Having considered those options, I am satisfied that the Court should exercise its discretion and accede to the present application.

ORDER

42.  By reasons of the aforesaid, I make the following orders:

(1)  A declaration that the presumption that the 2^nd respondent is the father of the Infant under section 5 of the PCO has been rebutted;

(2)  The consent of the 1^st respondent as required by section 5(5)(a) of the Ordinance in respect of the Infant be dispensed with;

(3)  The Infant be freed for adoption.

COSTS

43.  There be no order as to the costs of this action.