Mrs B AND ANOTHER v. THE OFFICIAL SOLICITOR AS GUARDIAN AD LITEM FOR C

HCAD 8/2021 &
HCMP 1722/2020

[2021] HKCFI 3534

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADOPTION CASE NO 8 OF 2021

(Transferred from FCAD No 16 of 2021)

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AND

MISCELLANEOUS PROCEEDINGS NO 1722 OF 2020

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J U D G M E N T

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APPLICATION FOR ADOPTION ORDER

1.  On 19 February 2021, the Infant (“C”) was made a ward of court and leave (“s.23A leave”) was granted to the Applicants to make arrangements for the adoption of C pursuant to section 23A of the Adoption Ordinance, Cap 290 (“AO”). 

2.  Before me is the originating summons filed on 16 March 2021 by the Applicants for adoption of C and to deward her.

3.  This is a private local adoption in that the Director of Social Welfare (“Director”) is not the applicant.  The prospective parents and the infant to be adopted are in Hong Kong.  The applicants are not relatives of the infant.

4.  The relevant background to this case has been set out in §§8‑23 of my judgment dated 19 February 2021 in the wardship proceedings in HCMP 1722/2020 (“HCMP Judgment”) and shall not be repeated here.  I shall update below the position since that time.

The Infant

5.  C is now aged 15 and has been studying in Grade 10 since August 2021. She continues to reside with the Applicants, her Aunt and Uncle at the same residence of the Applicants. 

6.  C is grateful for the arrangements made by the Applicants for her to study in Hong Kong.  She is happy and is looking forward to the adoption.  Her plans are to study in the USA after completion of Grade 12.  She understands that it would be easier for the Applicants to arrange the same following the adoption (and in fact following application for her US citizenship).

7.  C has spent almost 2/3 of her life in the care of the Applicants since the age of 6. She has in substance regarded them as her primary carers and parental figures.  She has expressed her identity as a member of the Applicants’ family.  She has had excellent performance at school.  She was observed by the Director and the Official Solicitor to have strong bonding with the Applicants.  She has sufficient maturity to form her own views, and the Court would give them great weight.

8.  To have C become a member of the Applicants’ family is in her best interests in all respects, including her daily care, education, exposure to opportunities, love and respect.  After all, this has been the de facto state of affairs for about 9 years before this application.

9.  The adoption will formalize C’s relationship with the Applicants.  It will bring benefits to her in terms of permanent status as any biological child of the Applicants, US citizenship, study and travel arrangements. 

The Applicants

10.  The Applicants continue to support C.  Their quality of care of her has been high.  The bonding between them and C is mutual.  The position has remained the same as set out in the HCMP Judgment.  The Applicants have no plans to change their jobs or retire and have no significant health issues. Their financial position remains stable and they have the means to care for C.

Birth parents

11.  The birth parents, living in      remain supportive of this adoption and have given their written consent in Form 4. They have not taken up much parental role since C has lived with the Aunt and Uncle when she was about 3 months old.  Yet C has been maintaining contact with the birth parents through facebook or video calls.  The adoption order will have little adverse effect on their relationship with C even if, in law, C were to cease being a member of her original family.

The Aunt and Uncle

12.  The Aunt has worked for the Applicants for a very long time and she is just like part of their family.  She expressed her gratitude to the Applicants for the love of C.  The Aunt and the Uncle cannot provide anything close to what the Applicants have been providing C with (and indeed no other relative can). The Aunt and Uncle support the adoption.

Views of the Director

13.  The Suitability Assessment Report dated 19 January 2021 prepared by the Director showed the Applicants to be suitable to adopt C.  The updated report dated 27 October 2021 revealed no significant changes and the Director made the same finding as to suitability of the Applicants.

Views of the Official Solicitor

14.  The Official Solicitor has filed a report on 20 January 2021 in HCMP 1722/2020 when the Applicants sought leave to make arrangements for adoption.  For the present proceedings, she has filed the 2^nd and 3^rd reports dated 28 October and 29 November respectively.

15.  The Official Solicitor recommends the adoption.  She is of the view that continuation of the wardship order may not serve any useful purpose.

Legal Principles

16.  Under section 8 of AO:

“(1) The Court before making an adoption order shall be satisfied—

(a) that every person … whose consent is necessary under this Ordinance, and whose consent is not dispensed with, has consented to and understands the nature and effect of the adoption order for which application is made, and in particular in the case of any parent understands that the effect of the adoption order will be permanently to deprive him or her of his or her parental rights;

(b) that the order if made will be in the best interests of the infant, due consideration being for this purpose given to the wishes and opinions of the infant, having regard to the age and understanding of the infant;

(ba) that section 5AA or 27A(2) (as the case may be) has been complied with and that, taking into account the information obtained by the Director from the Commissioner of Police, the applicant is a fit and proper person to be granted the adoption order; and

(c) that the applicant has not received or agreed to receive, and that no person has made or given or agreed to make or give to the applicant, any payment or other reward in consideration of the adoption except such as the Court may sanction.

(1A) The Court, in making an adoption order shall consider whether it is in the interests of the infant that his original identity should be disclosed to him, having regard to the views of the prospective adopter, the opinion of the Director and also to the age and understanding of the infant.

(2) The Court in an adoption order may impose such terms and conditions as the Court may think fit, and in particular may require the adopter by bond or otherwise to make for the infant such provision (if any) as in the opinion of the Court is just and expedient.”

Analyses

17.  Section 8(1)(a) of AO is satisfied in that the birth parents have given true consent to the adoption and understands the nature and effect of the adoption order and that it would permanently deprive them of their parental rights.

18.  Section 8(1)(ba) has been complied with in that the Director and Official Solicitor’s Reports show the Applicants to be fit and proper persons to be granted the adoption order.  

19.  Section 8(1)(c) has been complied with in that the Applicants have not received or agreed to receive any reward in consideration of the adoption.

20.  C has, in person, expressed to the Court her agreement to the adoption.  There is no issue as to disclosure of her original identity to her under section 8(1A) of AO.

21.  No one objects to the application.  Applying the best interest test under section 8(1)(b) of AO and the “adoption checklist” in Director of Social Welfare v YPC [2020] 5 HKLRD 233, at §75, B Chu J, I am of the view that adoption by the Applicants is in the best interests of C and no terms need to be imposed under section 8(2) of AO.  Accordingly, I grant the adoption order.  I also make an order to deward C.

PROCEDURE IN RELATION TO PRIVATE LOCAL ADOPTION

22.  I just want to deal with a few matters on procedure for guidance of similar future applications.  All references to Rules hereunder are to the Adoption Rules (“AR”), unless otherwise specified.

Procedure for seeking leave under section 23A of the Adoption Ordinance (“leave application”)

23.  If the child is not a ward of court, the leave application should be made in the District Court.  There is no need to use wardship proceedings solely for the purpose of seeking s.23A leave where there appears to be no objection from anyone (including the infant) to the proposed arrangement and no other reason why the infant requires the protection of a wardship judge: M v WP [2021] HKCFI 2699, at §28, B Chu J.

24.  If the child is a ward of court,

(1)  And if the applicants are the same as in the wardship proceedings, application for leave to make adoption arrangements should be done in the existing wardship proceedings. 

(2)  And if the applicants are not already parties to existing wardship proceedings, the better approach is for the applicants to issue the leave application by separate HCMP proceedings, to be fixed for hearing before the wardship judge.  This is because the leave application may arise some years after the wardship issues have been resolved.  Using separate HCMP proceedings will avoid the need to add interveners and avoid breaching confidentiality in making file searches as in Re G [2020] 4 HKLRD 276, at §§31, 35 & 36, B Chu J.

25.  The present leave application was decided before M v WP with an element of urgency, having regard to the need to apply for US citizenship for C.  For similar cases in future, it will not be necessary to use wardship proceedings, if it is anticipated that all the potentially interested persons will not have objection or is likely to cooperate.

Commencement of adoption proceedings

26.  After s.23A leave is granted for private local adoption, the application shall be made in the District Court: section 4A(1) of AO.  There is no provision for making this application in the Court of First Instance. 

27.  There should be strict compliance with statutory requirements as an adoption order affects the infant for life and permanently affects parental rights and responsibilities.  The Court has to ensure that it has all the relevant information before making the order and that all persons having interest in the infant’s welfare have been given notice and an opportunity to make representation.

28.  The relevant statutory forms under the AR have to be used: Form 1 (notice of intention to apply for an adoption order, Rule 3).  Form 2 (originating summons) under Rule 5, Form 3 (statement in support), in this case, and Form 4 (birth parents’ specific consent to adoption).

29.  In the present case, Form 1 did not adhere to the statutory form in that the Annex to Form 1 giving authorization to the Commissioner of Police to do a criminal check on the Applicants and release the results to the Director was omitted.  That was not acceptable. 

30.  Whilst in the leave application, matters have been expedited due to the urgency, and the Applicants have been subject to a criminal check with results showing clear records before s.23A leave was granted, the Annex must still be attached to Form 1.  Having regard to the time lapse between the criminal check and the actual application for adoption, there has to be an updated criminal check, to ensure best protection to the infant.

Guardian ad litem

31.  In Form 2, the proposed adopter shall be the applicant and the infant shall be the respondent:

(1)  Pursuant to Rule 8, the Director shall be the guardian ad litem of the infant for the purpose of the application and a copy of the originating summons shall be served on him.

(2) Pursuant to rule 9, another person may be appointed as guardian ad litem in the place of the Director.  The Court may appoint the Official Solicitor to be guardian ad litem if it is in the interests of the infant to do so.

32.  Hence, even in a private local adoption, the Director still has a role to play:

(1)  To ascertain the consent of every person who is a parent or guardian of the infant or who is liable by virtue of any order or agreement to contribute to the maintenance of the infant, although the Court may dispense with any consent so required.

(2)  To decide the placement: the Director has to check the criminal record of the prospective parent to assess that person’s suitability to be a parent.  After that, the Director may proceed with the infant’s placement.

(3)  To make placement and application for adoption: the Director would observe and investigate during the placement whether the proposed adoption is in the best interest of the infant and make a report to the Court; the prospective parent would lodge the relevant forms applying for an adoption order.

M v WP, §§25 & 3.

33.  It has to be remembered that the guardian ad litem owes duties to the infant and to the Court and bears statutory duties under the AR.  By way of example, Rule 13 requires the guardian ad litem to investigate as fully as possible all circumstances relevant to the proposed adoption with a view to safeguarding the interests of the infant before the Court and to make a report to the Court for that purpose.  In particular, it shall be the duty of the guardian ad litem:

“(a) to make inquiries as to all matters alleged in the applicant’s statement and as to the additional matters specified in Schedule 2 and to report to the Court upon them;

(b) to interview (either by himself or by an agent appointed by him for the purpose) every individual being an applicant for the order, or mentioned in the applicant’s statement as a person to whom reference may be made, or a person on whom notice of the application is required to be served under rule 16, or, where notice is required to be served on a body of persons, the appropriate officer of such body.

34.  Schedule 2 to AR requires the guardian ad litem to investigate and report on specific matters concerning the applicant, the infant and the birth parents.  Those matters are relevant to the Court’s consideration under section 8 of AO.

35.  Accordingly, before suggesting anybody other than the Director to be the guardian ad litem, the applicant has to consider whether that person has the resources and ability to investigate and properly report on matters in accordance with statutory requirements. 

36.  In the present case, the court has appointed the Official Solicitor to be guardian ad litem for C at the suggestion of the Applicants.  C has the opportunity of applying for US citizenship at least 6 months before she reaches the age of 16 (ie on or before      2021), which would bring benefits to her were she to study in the USA.  Things need to be expedited so as not to lose that opportunity.  It was thought that having the Official Solicitor, who was involved in the wardship proceedings and leave application may speed up the adoption proceedings having regard to her familiarity to the background and part of the investigation she had already made in the leave application.

37.  The case of M v WP was not drawn to my attention before the Official Solicitor was appointed, despite the fact that Mr Azan Marwah and Withers were also legal representatives in that case.

38.  Having considered M v WP, I am of the view that in future, in a similar local adoption case like the present, it would not be necessary to appoint the Official Solicitor as guardian ad litem unless there are special reasons.  The Director should be left to make his own independent investigation as authorized by the law and form an independent view of the application, taking into account policy issues if appropriate.  Any past report of the Official Solicitor in the leave application, if deemed necessary, can be disclosed to the Director, with leave of the Court.

39.  If the Official Solicitor (or anybody else) is really appointed as guardian ad litem in the adoption proceedings, she has to remember her duties under the AO and AR.  Most often, her past reports in wardship proceedings or the leave application would have focused on the welfare of the infant and the adoption checklist.  However, the scope of duties and independent investigation under Rule 13 and Schedule 2 of AR are much wider and have to be undertaken after the s.23A leave was granted.  It is not enough simply to update the past reports.

40.  Further, the parties in the wardship proceedings and the adoption proceedings may be different.  For example, in Re G, the birth mother was a party to the former but not the latter.   The foster parents were not parties to the wardship proceedings initially.  The Official Solicitor may have acted for someone other than the infant, eg a mentally incapacitated person.

41.  Therefore, the Official Solicitor, as guardian ad litem in the adoption proceedings, must be alert to any potential conflict in her roles and be careful not to disclose confidential matters in one set of proceedings to parties in another.

42.  In the present case, the first 2 reports of the Official Solicitor have not fully discharged the investigation duties under Rule 13 and Schedule 2. The Official Solicitor could not just rely on the 2 reports of the Director, which were principally for assessment of the Applicant’s suitability adoptive parents.  The Director’s report made after grant of the s.23A leave has not even mentioned contact with the birth parents.

43.  Rule 13 requires the Official Solicitor to interview the persons stated therein, in particular, (a) the birth parents and (b) the referees mentioned by the Applicants.  These were not done.

44.  With regard to the birth parents, Forms 4 in this case were produced by the Applicants and not the Director.  The 1^st report of the Director merely stated that the birth parents understood the “effect” of an adoption without defining what the effect was.

45.  Paragraph 17 to Schedule 2 requires the Official Solicitor to ascertain if each of the parents understands “that an adoption order is irrevocable, and that the order if made will deprive him or her of all rights in respect of the maintenance and upbringing of the infant”.  This is a mandatory consideration of the Court under section 8 of AO and is not a formal requirement that can be waived.  This is because the birth parents’ consent may not be an informed one, or they may have changed their minds in the meantime.  They should be given an opportunity to show cause under Rule 17(1) why an adoption order should not be made and the case shall be transferred to the Court of First Instance under Rule 17(2). 

46.  With regard to the referees, they are character references of the Applicants as suitable parents and can provide objective views as to the family/living circumstances of the Applicants.  (See also §8 of Schedule 2, Part I.)

47.  Schedule 2, Part I requires the Official Solicitor to ascertain, amongst others, if the applicant understands “that an adoption order is irrevocable and that the order if made will render him or her responsible for the maintenance and upbringing of the infant”.  This is to ascertain if the applicant has given true and unreserved consent to the adoption.  It is not a formality that the Court can waive, however much the Court appreciates the kindness and integrity of an applicant. 

48.  Schedule 2, Part II requires the Official Solicitor to ascertain, amongst others, whether the infant has any right or interest in any property. This piece of information is relevant so that the Court would know whether the adoption would bring into issue exploitations of the infant and what directions may be necessary to protect the infant’s property.  This is indispensable investigation.

49.  In the present case, the Official Solicitor’s 3^rd report dated 29 November 2021 has remedied the deficiencies. In the special and urgent circumstances of this case, having regard to the 9 years of continuous quality care of C by the Applicants with the help of the Aunt and Uncle, the Court waived the interview of the referees.

Notice of hearing

50.  Under Rule 15, after the guardian ad litem has prepared a report for the Court, it is for the applicants to obtain an appointment for hearing.  However, it is for the guardian ad litem to issue the notice of hearing under Rule 16(b) (Form 6).  This is because, after making the investigation report, the guardian ad litem would be in the best position to know who is supporting or objecting to the application, who needs to be served and whether it is necessary to apply for dispensation with service of particular persons.

51.  The Director (if he is not the guardian ad litem) may appear before the court to show cause why an adoption order should not be made pursuant to Rule 17(1) of the AR.  That is a right, which could be exercised after he has been served with the guardian ad litem’s report and Form 6.

52.  In the present case, the Official Solicitor has failed to serve Form 6 on the Director until 22 November 2021, the day before the supposed disposal of this application.  This was an irregularity but the Court waived it as the Director was served with all the relevant papers before Form 6 was issued.

Venue for hearing the adoption application

53.  The District Court is the proper venue.  Even though there is an existing wardship order, there is nothing to prevent the District Court from independently deciding the merits of an adoption application.

54.  The adoption application may be transferred to the Court of First Instance at the request of any party to the proceedings or on the motion of the District Judge: section 4A(2).

55.  Pursuant to Rule 17(2) of AR, the District Court shall transfer the application to the Court of First Instance where (a) any person whose consent is required under section 5(5)(a) of the AO fails to give consent; or (b) any person having a proper interest in the application objects to the adoption being made. 

56.  If the infant is a ward of court, depending on whether there was a prior order to deward him or her when granting s.23A leave, a summons can be issued by a party to the wardship proceedings to deward the infant after the adoption order is made.

Consolidation of proceedings.

57.  In the present case, the adoption proceedings were properly transferred by Her Honour Judge Melloy to the Court of First Instance.  In ordering the transfer, the learned judge also ordered the adoption proceedings “to be consolidated with HCMP 1722/2020”.

58.  With respect, it is not necessary to order consolidation at all.  The 2 sets of proceedings serve different purposes although the applicants are the same in this case.  Further,

(1)  In the wardship proceedings, the infant is not named as a party: Order 90, rule 6(1) of the Rules of the High Court.  The parties to those proceedings could be different to those in the adoption proceedings.  An example is Re G.

(2)  In adoption proceedings, the infant is a necessary party and must have a guardian ad litem: Rule 8 or 9 of AR.

59.  To consolidate means that the parties can have access to documents in both sets of proceedings.  It did not pose problems in the present case with common applicants.  However, in a situation like Re G, it would be most undesirable for eg the prospective parents to have access to papers in the wardship proceedings about the conflict between the parties, and for the parties in the wardship proceedings to have access to the Director’s report investigating eg the health and means of the prospective parents.

60.  The proper procedure, rather, is that upon transfer of the adoption proceedings to the Court of First Instance, a direction be made for the matter to be heard by the wardship judge.

Procedure on transfer to the Court of First Instance

61.  Upon transfer to the Court of First Instance, Withers, acting on behalf of the Applicants issued a case management summons under Order 78, rule 5 of the Rules of the High Court, Cap 4A.  Without disrespect, a case management summons (with the resultant need to file timetabling questionnaires etc) is more appropriate for proceedings commenced by writ.

62.  For adoption proceedings, it is more appropriate to adhere to the AR upon transfer.  The applicant do obtain a date of hearing pursuant to Rule 15 and the guardian ad litem do issue a notice of hearing under Rule 16.  The Court will give all necessary directions at the hearing.

Conclusion

63.  I grant an order authorizing the Applicants to adopt C and to have C dewarded. 

64.  Pursuant to Rule 20 of AR, the Registrar of the High Court shall send a sealed copy of the order to the Registrar of Births and Deaths and to the Applicants within 7 days after the order has been passed and entered.

65.  In terms of general procedure and subject to any directions of the Court:

(1)  The application for leave to make adoption arrangement under s.23 of AO should be made in the District Court.  Wardship proceedings should not be used solely for the purpose of a leave application.  If the child is a ward

(a)  And if the applicants are the same as in the wardship proceedings, the leave application should be done in the existing wardship proceedings.

(b)  And if the applicants are not already parties to existing wardship proceedings, the applicants should issue the leave application by separate HCMP proceedings, to be fixed for hearing before the wardship judge.

(2)  There should be strict adherence to the statutory requirements in an adoption application.

(3)  After s.23A leave is granted, an adoption application shall be commenced and heard in the District Court.  The application may be transferred to the Court of First Instance at the request of a party or on the motion of the District Judge.  The application shall be transferred to the Court of First Instance where consent required was not given or the adoption application is contested.

(4)  Upon transfer, there is no need for an order to consolidate wardship proceedings with the adoption proceedings.

(5)  Upon transfer, there is no need to take out a case management summons pursuant to Order 78, rule 5.  The applicant should obtain a hearing date under Rule 15 of AR.  The guardian ad litem should issue the notice of hearing under Rule 16 of AR.

(6)  In principle, the Director should be the guardian ad litem for the infant in adoption proceedings.  If the applicant suggests that someone else (including the Official Solicitor) should be the guardian ad litem, the applicant should satisfy the Court that that person has the resources and ability to discharge his investigatory duties under the AO and AR.

(7)  Apart from applying the adoption checklist, the report to be produced by the guardian ad litem should satisfy statutory requirements, in particular those under Rule 13 and Schedule 2 to the AR.

(8)  After the guardian ad litem has prepared his/her report, the appointment for hearing should be obtained by the applicant under Rule 15; whereas the notice of hearing should be issued by the guardian ad litem in Form 6.

(9)  If the infant is a ward, a summons to deward the infant may be taken out in the wardship proceedings after the adoption order is made.

66.  I thank counsel, the Director and the Official Solicitor for their assistance.