DIRECTOR OF SOCIAL WELFARE v. L

HCMP 972/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 972 OF 2006

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J U D G M E N T

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Introduction

1. The defendant in this matter, an unmarried woman, is the mother of three young children.  For the greater part of their lives, the three children – all under the age of five – have been in the care of the Director of Social Welfare and have had limited contact with their mother.  Indeed, in or about the past two years, there has been no contact at all.  The mother has been diagnosed as suffering from mild grade mental retardation. 

2. The Director has formed the view that there is no realistic possibility that the mother’s circumstances will ever enable her to take the children back into her care or enable her to build any sort of abiding relationship with them.  In the circumstances, to spare the children from having to spend their formative years in social welfare institutions, the Director believes that they should be made free for adoption.

3. The mother, however, after some initial uncertainty, is now of the view that the children must remain ‘her children’ and should not be made free for adoption.  She has therefore refused to give her consent to the children being put up for adoption as required by s.5(5)(a) of the Adoption Ordinance, Cap.290.

4. The Director contends that the mother has withheld her consent unreasonably.  For this reason, the Director has come to this court to seek orders in terms of s.5A of the Ordinance dispensing with the mother’s consent and declaring the children to be free for adoption.

5. If I make the orders that are requested, it will mean that, despite the mother’s opposition, all of her ‘rights, duties, obligations and liabilities’ in respect of the children will be vested in the Director who may then proceed, without further reference to her, to place the children for adoption.

6. What are sought therefore are orders of profound consequence for the mother and her children.

The interest of the father of the two eldest children

7. Although not cited as a defendant, it is accepted that the father of the mother’s two eldest children is Mr C.  Mr C has attended court in the company of the mother to assert his own rights, as he sees them, in respect of his two children.  He too opposes the Director’s desire to have the children made free for adoption.

8. Mr C, who is in his early fifties, has been diagnosed as suffering from a personality disorder.

9. Neither Mr C nor the mother are currently employed or have any recent history of employment.  It appears that the handicap that burdens each of them makes it difficult for them to hold down any form of long term employment.

10. I pause at this juncture to say that it is a pity in many ways that neither the mother nor Mr C, the father, have had the benefit of legal representation.  Both, as I have said, labour under intellectual handicaps.  I have considered adjourning this matter to see if it is possible to obtain legal representation for them.  The issues, however, are stark and, having heard from the parties, I know that my course is clear.  In the circumstances, I believe it best to proceed to resolve this matter without further delay.

11. As for the father’s asserted interest, it is accepted that he and the mother have never married.  In terms of our law, therefore, the two children are illegitimate.  In terms of s.3(c) of the Guardianship of Minors Ordinance, Cap.13, when a child is illegitimate, the father has no rights in respect of that child unless and until he makes an application to court and the court is satisfied that he should be granted rights in respect of the child.  To this end, s.3(d) of the Ordinance states that —

“the Court of First Instance or a judge of the District Court may, on application, where it is satisfied that the applicant is the father of an illegitimate child, order that the applicant shall have some or all of the rights and authority that the law would allow him as father if the minor were legitimate.”

12. I am satisfied that, by his actions, the father has in substance sought to make an application pursuant to s.3(d).  I am further satisfied – certainly in respect of the proceedings now before me – that the father should be granted all such rights in the two children as if they were born in a marriage between him and the mother.  Accordingly, to put it succinctly, I have heard equally from the father and given equal weight to his submissions.

S.6(1)(c) of the Adoption Ordinance : the relevant law

13. It is fundamental that in an open, democratic society a mother’s relationship with her children will only be permanentlysevered when there are good and pressing reasons for taking such an exceptional step; effectively when, in all the circumstances, there is no other reasonable alternative.  In short, when, viewed objectively, it is the only reasonable course of action to take.

14. As to when this court may take such profound action, s.6(1) and (2) of the Ordinance provides that —

“	The Court may dispense with any consent required by section 5(5)(a) if it is satisfied-
	(a)	in the case of a parent or guardian of the infant, that he has abandoned, neglected or persistently ill-treated the infant;
	(b)	in the case of a person liable by virtue of an order or agreement to contribute to the maintenance of the infant, that he has persistently neglected or refused so to contribute;
	(c)	in any case, that the person whose consent is required cannot be found or is incapable of giving his consent or that his consent is unreasonably withheld,
	or if it is of opinion that such consent ought, in all the circumstances of the case, to be dispensed with.
(2)	The Court may dispense with the consent of the spouse of an applicant for an adoption order if satisfied that the person whose consent is to be dispensed with cannot be found or is incapable of giving the consent or that the spouses have separated and are living apart and that the separation is likely to be permanent, or if it is of opinion that such consent ought, in all the circumstances of the case, to be dispensed with.”  [my emphasis]

15. Thankfully, in Hong Kong at least, the applications which the Director has been forced to make are rare.  There is not therefore any local jurisprudence on the subject.  That being said, I do have the benefit of a 1971 judgment of the House of Lords which, in my view, is directly on point.  In that judgment – In re W (An Infant) [1971] AC 683 – the House construed the meaning and intent of provisions of s.5(1) of the Adoption Act 1958, those provisions being in almost exactly the same terms as our s.6(1)(c).  In so far as relevant s.5(1) of the Adoption Act 1958 reads :

“The court may dispense with any consent required by paragraph (a) of section 4(1) of this Act if it is satisfied that the person whose consent is to be dispensed with —

(a) has abandoned, neglected or persistently ill-treated the infant; or

(b) cannot be found or is incapable of giving his consent or is withholding his consent unreasonably.”  [my emphasis]

16. In his speech, Lord Hailsham emphasised that the test laid down was an objective test of ‘reasonableness’.  It was not a test of culpability or of callous or self-indulgent indifference or of a failure of parental duty.  It was not for the courts, he said, to ‘embellish, alter, subtract from or add to’ words which the legislature had employed without ambiguity.

17. As to the manner in which the test of reasonableness was to be applied, Lord Hailsham (at 698E) said that the words of Lord Denning MR in his 1962 judgment in In re L (An Infant), unreported, were now to be considered authoritative :

“In considering the matter I quite agree that: (1) the question whether she is unreasonably withholding her consent is to be judged at the date of the hearing; and (2) the welfare of the child is not the sole consideration; and (3) the one question is whether she is unreasonably withholding her consent.  But I must say that in considering whether she is reasonable or unreasonable we must take into account the welfare of the child.  A reasonable mother surely gives great weight to what is better for the child.  Her anguish of mind is quite understandable; but still it may be unreasonable for her to withhold consent.  We must look and see whether it is reasonable or unreasonable according to what a reasonable woman in her place would do in all the circumstances of the case.”

18. Lord Hailsham accepted, however, that cases in which a parent’s consent would properly be set aside would be exceptional, each case of course depending on its own facts and circumstances.  But, even if it was exceptional, the test to be applied in determining whether the decision should be made remained the objective test of reasonableness.

19. Lord Hailsham concluded with the following words of caution :

“… it does not follow from the fact that the test is reasonableness that any court is entitled simply to substitute its own view for that of the parent.  In my opinion, it should be extremely careful to guard against this error.  Two reasonable parents can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable.  The question in any given case is whether a parental veto comes within the band of possible reasonable decisions and not whether it is right or mistaken.  Not every reasonable exercise of judgment is right, and not every mistaken exercise of judgment is unreasonable.  There is a band of decisions within which no court should seek to replace the individual’s judgment with his own.”

20. In my judgment, bearing in mind that s.6(1) of the Hong Kong statute is clearly drawn from the English legislation, Lord Hailsham’s judgment speaks to the correct interpretation of our section and to the manner in which its provisions are to be applied by Hong Kong courts.

21. That being stated, I move now to consider the facts of the present case.

Background

22. As I have said earlier, the mother, who is in her mid-thirties, has been diagnosed as suffering from mild grade mental retardation.  While she may wish to be a good mother, medical opinion is that she, as an individual, does not have the ability – intellectually or psychologically – to deal with the everyday responsibilities of caring for her children.  A psychiatric assessment in November 2005 found that her ability even to care for herself was limited.

23. As I have also said, the father has been diagnosed as suffering from a personality disorder.  He too apparently has a limited ability to care for himself.  He is said to hoard rubbish.

24. Both the mother and the father have a history of street sleeping.  Indeed, during the course of the hearing the mother, who was at all times engagingly frank, admitted that street sleeping was a habit shared by herself and the father and one to which it was possible they may return.

25. At this juncture I must stress that an intellectual, emotional or physical handicap is never – of itself – conclusive in matters of this kind.  That would be abhorrent to all right thinking people.  What may properly be taken into account is no more than the effect of such a handicap on an individual parent, each case being considered in the light of its own circumstances.

26. I turn now to consider the three children.

27. The eldest child is H, a boy, who was born in August 2001.  Within six months of H’s birth, he was made the subject of a care and protection order.  He was found to be under-nourished and not well cared for by the mother and the father.  A social welfare case report written in January 2002 recorded that the mother only fed the child once a day, normally around eight at night, not having the energy or inclination to feed him at other times.  The domestic accommodation was found to be deeply unsatisfactory.  In this regard, the author of the report wrote :

“Due to the father’s indulgent behaviour in collecting stuff from the street as well as rearing 3 dogs inside the common room and kitchen, the living environment in terms of ventilation and hygiene are considered poor.  Upon caseworker’s repeated persuasion and intervention, the father showed only superficial response and removed part of his boarding discarded items from his present abode.  However, the whole living environment is still far from satisfactory.”

28. In the result, H was committed into the care of a residential crèche and has lived in institutions of similar kind since that time.

29. The second child is T, a girl, who was born in September 2002.  Within days of the birth, the mother was found by a psychiatrist to lack the necessary skills to care for her daughter and she too was made the subject of a care and protection order.  T has therefore lived all of her short life in social welfare institutions.

30. The third child is W, a boy, who was born in May 2005.  The father of this child is unknown.

31. It appears that in the latter part of 2004 the mother and father began street sleeping again.  During this time, according to the mother, a stranger offered her $30 for sex and she agreed.  That was how she fell pregnant with W.

32. While pregnant, the mother agreed that the child, when born, should be adopted and signed a declaration of initial consent.  At the same time she signed declarations of initial consent to give up H and T for adoption.  Later, however, she changed her mind in respect of all three children.

33. I am told that, after the birth of W, the mother continued to sleep on the streets.  On 27 May 2005, within a couple of weeks of the birth, the child was made a ward of court and placed into the care of the Director.

34. The mother and father are now back in accommodation but, according to the social welfare authorities, it is not – in the way it is kept – a suitable place for raising children.  Madam Ko Man Lai, a Social Work Officer, visited the apartment in November 2005.  She recorded her impressions as follows :

“During a home visit … they were found to have kept a lot of scraps at home.  They petted seven cats in a cage that made their home very smelly.  Worse still, they continue to keep a lot of scraps and pet several dogs and cats on the roadside under a flyover near their home vicinity that caused environmental nuisance.  They excused that they had to keep watching on the scraps and stuffs on the roadside so they could not spare any time to visit the infants.”

35. In her affirmation, Madam Ko expressed the view that, despite counselling, she believed that the motivation of the mother and father to make material changes to their style of living remained low.

36. The records show that the mother and father have not visited the two eldest children since about October 2004, a period of some two years.  There is no record of the mother ever visiting the youngest child.

37. It needs to be said that the mother and father have not been prevented from visiting their children.  Indeed, the opposite appears to be the case.  They have been encouraged to visit and at one time made reasonably regular visits to the two eldest children.

38. For about the past two years, however, the mother and father appear to have been defeated by the comparatively simple logistics of organising and carrying out a visit.

39. In the result, of course, for whatever reason, the mother and the father must now be strangers to the children.

The Director’s view

40. If I may summarise it, the Director’s case appears to be as follows :

(i)	For almost all of their young lives the children have lived in welfare institutions.
(ii)	Although opportunities have been offered to the mother and the father to foster a relationship with the children, they have not been taken up.
(iii)	The mother and the father have been counselled to try and improve their caring skills but with no success.
(iv)	There is, in the circumstances, no realistic prospect of either the mother or the father – separately or together – being able to change their mode of living sufficiently to forge any beneficial relationship with the children.
(v)	It is not in the interests of the children for them to spend all their formative years in institutions.
(vi)	Even if the mother and father can be encouraged to visit the children on a regular basis, itself improbable, the children will still be condemned to remain in those institutions because the mother and father will never possess the required motivation or skill to be able to care for the children.
(vii)	Adoption therefore offers the only hope for the children to be raised as members of a loving, close and responsible nuclear family.
(viii)	Although the mother and father will undoubtedly miss the children, they have lived entirely independently of the children for about the past two years and, if there was no change, would simply continue to do so.
(ix)	In all the circumstances, reasonable parents in the place of the mother and father would not withhold their consent to adoption.

The position of the mother and father

41. When the hearing commenced, I was informed by the mother that she and the father have now booked a date to be married.  That date is 29 August of this year, in just a couple of week’s time.  The relevant papers were put before me as proof.  Although I was not told why the decision has now been taken to marry, I accept that, in part at least, it was intended to demonstrate that they wish to change their mode of living for the better.

42. But what plans, if any, do the mother and father have for the children?

43. The mother was unable really to speak of any plan.  She would take further counselling, she said, but no more than that.

44. The father said that, once he was able to speak to his mother, she would take care on the children, at least the two eldest children.  The father admitted that his mother was already extended in caring for the children of one or more of his siblings.  He asserted, however, that some arrangement could be made.  Unfortunately, I am advised that the mother; that is, the maternal grandmother of the two eldest children, has not in the past recognised the children and has made it plain to the welfare authorities that she is not willing to assist in caring for them.  The father did not appear to deny this.

45. To be frank, I do not think that either the mother or the father expect at this time, or even within the near future, to be able to take the children back in their care.  It seemed to me, and the impression was a strong one, that they were content enough with things the way they were, that is, with the status quo, and saw no reason for change, certainly not by taking the children from them.  Even if the children were to be raised by the state, they should nevertheless remain ‘their children’.

Conclusion

46. In my judgment, while the mother and father would like the status quo to continue, it cannot be allowed to do so.

47. The probabilities very firmly indicate that if the status quo is allowed to prevail, the children will be condemned to spending all of their formative years in social welfare institutions.  As good as those institutions may be, they cannot be a satisfactory substitute for a close, loving, family environment.

48. Is there any realistic likelihood that the mother and the father will be able at any time in the foreseeable future to offer a safe and beneficial family environment for the children?  Sadly, on the evidence before me, I do not think there is any such likelihood.

49. At best perhaps – and even that, I think, is unlikely – the parents, by means of regular counselling, may be motivated to make occasional visits to the children.  But how will that benefit the children in any real way?  While the welfare of the children is not the sole criteria, I do not see how a reasonable mother or father could find that to be a satisfactory compromise.

50. As I said earlier, the issues in this matter are stark.  The decision I must make, I think, is clear.

51. I have compassion for the mother and the father.  They appear to be essentially decent, warm hearted people.  The manner in which they devote themselves to the stray cats and dogs in their area illustrates this.  But history has shown that they are not motivated to changing their way of living and that way is simply not compatible with the raising of one child, let alone three.

52. Objectively, it is plain, I think, that any reasonable parent in the position of the mother and the father would accept that they are not able adequately to raise a family and that the welfare of the children can only be served by one course of action; namely, by putting them up for adoption.

53. I appreciate that the decision I make will perplex the mother and the father and cause them pain.  But in this case, which I find to be an exceptional case, I must grant the orders sought by the Director.