DIRECTOR OF SOCIAL WELFARE v. YKK

HCMP 767/2020

[2021] HKCFI 2078

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 767 OF 2020

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J U D G M E N T

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INTRODUCTION

1.  This is an application by the Director of Social Welfare (“Director”)  under section 5A of the Adoption Ordinance, Cap 290, (“Ordinance”) for an order dispensing with the consent of the defendant (“D”), who is the putative father of the child YY (“Child”), and declaring the Child free for adoption.

2.  The Director sought to dispense with D’s consent under section 6(1) of the Ordinance, on the grounds that (i)  D had abandoned and/or neglected the Child under section 6(1)(a)  and (ii)  D’s consent was unreasonably withheld under section 6(1)(c)  of the Ordinance, and that in all the circumstances of this case, D’s consent ought to be dispensed with.

3.  The Director’s application is supported by 2 affidavits of Mr Lau Chun Wai Raymond (“Mr Lau”), a social work officer at the Ngau Tau Kok Integrated Family Service Centre (“Family Service Centre”)  filed on 3 June 2020 and 5 February 2021.

4.  D opposes the Child’s adoption.  He is currently detained at the Hei Ling Chau Correctional Institution.  At the 1^st hearing before this Court on 18 March 2021, it transpired that the Child, who is currently in a foster home, showed reluctance to be adopted and to remain at the foster home. As a result thereof, this Court directed that the Child be separately represented by the Official Solicitor (“OS”)  subject to his consent, and to submit a report 7 days prior to the next hearing.  Subsequently, OS consented to represent the Child.

5.  Ms Christine Wong, Government Counsel, appeared for the Director in these proceedings and Mr Ted Lee of the OS office appeared for the Child.

BACKGROUND 

Events leading to the Care and Protection Order

6.  The Child was born in March 2014 at the United Christian Hospital.  She is now about 7 years and 4 months old.  On her birth certificate, her mother is stated to be a Ms Wu[1] who was also to be the informant of her birth, and D is stated to be her father.  The Child was born out of Ms Wu’s cohabitation with D.

7.  As seen in the social welfare report later in this judgment, Ms Wu and D became drug abusers in their teens and they had a history of on and off imprisonment in the past.  Ms Wu was reported to have a teenage son born out of her previous relationship and all along, the son was living with Ms Wu’s mother.  Later, Ms Wu cohabited with D and they resided with D’s family in a public housing unit occasionally.  Both Ms Wu and D were recipients of comprehensive social security assistance (CSSA).

8.  Reportedly, Ms Wu used illicit drugs during her pregnancy and the Child had withdrawal symptoms after birth and was required to receive morphine for a few days during her hospitalization.

9.  In view of her parents’ drug problems, a joint child welfare meeting was held on 2 April 2014 to discuss the Child’s discharge plan from the United Christian Hospital.  The Child’s parents and D’s mother, namely the Child’s paternal grandmother (“Madam Fung”)  attended that meeting with various social workers and the associate consultant and the ward nurse of the hospital.  Notwithstanding the Child’s parents showing discontent towards the suggestion, the other attendees of the meeting concluded that the Child would benefit from out-of-home care in view of her parents’ active drug problem, lack of insight into their child care adequacy and lack of family support in child care and recommended that a Care and Protection Order was necessary for protection of the welfare of the Child. 

10.  It appeared that the Child’s parents then moved out from D’s family home sometime in April 2014, and had since been living apart from D’s family. 

11.  The Director applied for a Care and Protection Order and at a hearing on 5 May 2014, which was attended by both Ms Wu and D, a Care and Protection Order was made by the Kowloon City Juvenile Court (“C&P Order”)  and the Child was then committed to the care of Po Leung Kuk (“PLK”)  with 12 month’s supervision by a social welfare officer.  A progress hearing was fixed on 23 September 2014 and a progress report was submitted on 19 September 2014 (“Progress Report”)  by the then social worker in charge of the case Ms Tam Ka-yan (“Ms Tam”).

The Progress Report

12.  As seen in the Progress Report, the Child was born with neonatal narcotic withdrawal syndrome and other related physical problem/s and she was required to attend various medical follow-up appointments at various hospitals.  It appeared that after the hearing and the C&P Order, the Child was accompanied by her parents, Madam Fung and Ms Tam to attend the Pamel Youde Nethersole Eastern Hospital for treatment and it was observed that at that time the parents were concerned about the Child and were able to take care of the baby at the hospital.

13.  Thereafter, the Child was arranged to stay at the PLK New Comers Ward.

14.  On 10 June 2014, Madam Fung and the Child’s paternal aunt escorted the Child to an appointment at the United Christian Hospital, but Ms Wu and D failed to show up and the assessment on Child’s hearing could not be conducted without her parents’ consent.  Ms Tam reported that she had tried to contact the Child’s parents by means of correspondences and telephone contacts but in vain.  Ms Tam reported that according to Madam Fung, she only saw the couple once in early September 2014 and that as she refused to let them into her home for fear they would take away valuable things from her home, the couple then left.

15.  Although a long term residential placement was available for the Child in August 2014 from the PLK Babies Section, as the Child’s parents could not be located, the placement was then held up.  It was reported that Madam Fung had visited the Child twice to thrice a week at PLK while the paternal uncle and aunt visited her on occasions during the then supervision period.  Madam Fung herself is a comprehensive social security assistance recipient, and that she had financial difficulties and that as the Child’s parents could not be contacted to apply for social security assistance for the Child, in the end, Madam Fung agreed that the Child be better placed continuously under the care of PLK at that stage.

16.  Ms Wu and D did turn up at the progress hearing on 23 September 2014.  The C&P Order was then continued unchanged and that a further progress hearing was fixed on 28 April 2015 with a further progress report to be submitted prior to that hearing. 

The social welfare report

17.  Thereafter, Ms Tam submitted a social welfare report on 21 January 2015 (“SWR”).

18.  Ms Tam reported in the SWR that during the supervision period, Ms Wu and D only appeared on the days of the court hearings, ie 5 May 2014 and 23 September 2014, and that thereafter, Ms Tam could not locate them.  

19.  Ms Tam reported that after the court hearing on 23 September 2014, the Child was admitted into the PLK Babies’ Section on 8 October 2014 and that Ms Tam had visited her regularly.  Further, Madam Fung had visited the Child and kept frequent contacts with Ms Tam and viewing that Madam Fung was trustworthy, Ms Tam recommended her to act as the Child’s CSSA appointee in September 2014 to manage the Child’s financial matters. 

20.  On the other hand, Ms Wu and D had not visited the Child since her admission to the PLK Babies Section.

The Director’s appointment as legal guardian of the Child

21.  After the hearing on 23 September 2014 and upon obtaining the SWR, the Director then decided to make an application on 23 January 2015 to amend the C&P Order and to appoint the Director himself to be the legal guardian of the Child.

22.  According to Ms Tam, Ms Wu was explained this intended application by the Director at the hearing on 23 September 2014, and that she showed her understanding and did not oppose this plan.  Further, according to Ms Tam, Madam Fung and D’s brother (the Child’s paternal uncle)  were invited to an interview with Ms Tam on 25 October 2014 and that they showed understanding and accepted the proposal with counselling.

23.  However, there was no indication in the SWR that D had agreed to the plan.

24.  Anyway, the Director’s application was granted and on 23 January 2015, the C&P Order was amended and the Director was appointed the legal guardian of YY.

Events leading to the present application

25.  According to Mr Lau’s 1^st affidavit, that after the Director was appointed to be the Child’s guardian, despite various attempts made by the social worker Ms Tam, Ms Wu could not be located.

26.  Eventually, the Social Welfare Department was informed that Ms Wu was found unconscious at her home on 13 July 2016 and sadly passed away at the hospital on the same day due to adverse effects on morphine and methamphetamine.

27.  Prior thereto, D had been located in August 2015 and was found to be serving a custodial sentence at Pak Sha Wan Correctional Institution.  Ms Tam visited D on 20 November 2015 and discussed the Child’s welfare with him. D informed Ms Tam that it was his intention to take care of the Child and disagreed with the welfare plan of freeing the Child for adoption.  He then undertook to decide on whether to make an application for parental rights and authority under the Guardianship of Minors Ordinance, Cap 13 (GMO) before end of February 2016, and had signed an undertaking to this effect.

28.  D was later discharged in February 2016 and he and Madam Fung started to meet with the Child at the office of the Social Welfare Department of the Family Service Centre under supervision once a month from March 2016 to June 2016 and from August 2016 to September 2016.  It was reported that D could not be contacted other than the family gatherings at the Family Service Centre and that notwithstanding repeated reminders, D had not taken any legal action regarding the Child’s guardianship and care.

29.  Madam Fung was contacted by Ms Tam on 21 May 2016 and Madam Fung reported that D only returned to her home occasionally and she did not know where he lived.

30.  D was later interviewed by Ms Tam on 23 November 2016 at the Family Service Centre during which she discussed the Child’s welfare plan with D.  D said he had applied for legal aid, but his application was rejected.  Although Ms Tam explained again the procedure of adoption, D insisted that he would apply for the Child’s guardianship.

31.  In May 2017, D was detained at Lai Chi Kok Reception Centre for an offence.  On 10 May 2017, Ms Tam visited him at the Reception Centre and discussed the Child’s welfare plan with him again.  D reiterated his intention to apply for the Child’s guardianship in future.

32.  On 19 May 2017, D was sentenced to a 17 month imprisonment and he was discharged from the prison in March 2018.

33.  D was interviewed by Ms Tam again on 21 July 2018 at the Family Service Centre and he repeated his wish to resume care of the Child and disagreed to the adoption arrangement.  H said he planned to work to support the Child’s living while enlisting his sister’s assistance in child care. However, it was reported that thereafter D was difficult to reach and he defaulted on subsequent scheduled office interviews with Ms Tam, and that he failed to support maintenance, pay visit or have any concrete care plan for the Child.

34.  Prior to the issue of the originating summons herein, D was reportedly last contacted over the phone by the then case worker Ms Chang Man-yi on 4 September 2019.

35.  As for the Child’s other family members, her maternal grandmother had never visited her and had all along expressed her difficulty in taking care of the Child.  After Ms Wu’s death, the Child’s maternal grandmother stated her limitation to take care of the Child and agreed to the Director to decide the permanency welfare plan for her.

36.  As for Madam Fung, by now she is about 75 years told.  Madam Fung had visited the Child frequently when she was at PLK, and after the Child was placed in a foster home, gatherings were arranged between Madam Fung and the Child at the Family Service Centre.  It was reported that her attitude towards the Child’s welfare plan was ambivalent and was assessed not to be a suitable carer owing to her old age and poor walking ability.  She however had expressed wish to take care of the Child with the assistance of the Child’s paternal aunt and paternal uncle.

37.  Ms Tam had contacted the paternal aunt and uncle after the Child ’s birth to discuss her welfare plan.  It was reported by Ms Tam that they had never expressed their readiness of availability to take care of the Child.  It was reported that on 31 August 2017, Ms Tam had tried to leave a message at the paternal aunt’s voice mail but no response was received from her.  The paternal uncle was reached on 1 September 2017 but he claimed he had to discuss with the paternal aunt for the Child’s permanency welfare plan and subsequently they decided not to look after the Child due to personal reasons.  There was an undertaking signed by the paternal uncle on 16 October 2018 to this effect.

38.  The originating summons was eventually issued by the Director on 3 June 2020.  By then, it was found that D was detained at the Hei Ling Chau Addiction Treatment Centre in Hei Ling Chau and D was served with the originating summons there.

39.  The 1^st appointment hearing was initially fixed on 23 July 2020 before another Judge.  On 6 July 2020, D made an application for legal aid and the hearing was then vacated.  His application was rejected again.  As mentioned, the 1^st hearing took place before this Court on 18 March 2021.  D informed this Court at the 2^nd hearing on 15 June 2021 that he would only be released on 2 May 2022.

THE EVIDENCE

40.  In Mr Lau’s 1^st affidavit, he had produced the Progress Report and the SWR but those reports were prepared 5 or 6 years ago when the Child was less than one year old and was at PLK.  Although Mr Lau’s 1^st affidavit contained details of the Director’s attempts in locating the Child’s parents and of obtaining their views and views from the Child’s extended family, there was no updated information on the Child’s care arrangements for the past 5 or 6 years, which was not helpful at all.  In particular, there has been no information as to when the Child was first placed in her present foster home. 

41.  On 5 February 2021, Mr Lau filed a 2^nd affidavit and produced a psychological report received on 10 November 2020, which was prepared by Lim Kwai Tat Amanda (“Ms Lim”), a clinical psychologist of the Social Welfare Department, in relation to the Child (“1^st Psychologist Report”).  Ms Lim opined that [the Child] was not prepared for adoption and that her continuous stay in the foster family is regarded as being beneficial for her long-term psychological well-being.

42.  What can be gleaned from the 1^st Psychologist Report was that the Child had been referred for psychological service since September 2018 and until the date of the report which appeared to be a period of two years (“Assessment Period”).  It was during the Assessment Period that Ms Lim and the Child’s current foster mother (“Foster Mother”)  had jointly explained to the Child about her family background and her status as a foster child.  It was reported by the Foster Mother that the Child appeared to have little memory of her biological father and paternal grandmother and Ms Lim had reported that the Child had never mentioned them during the sessions with her.

43.  Ms Lim further reported that during the discussion of a prospective adoptive family, the Foster Mother had told the Child that she was aging and had physical illness and she could not look after her forever.  Ms Lim said she herself had also explained to the Child about the implication of an adoptive family and that she would have a permanent family with both parents, and possibly siblings as well and that the family would love and take care of her. Nonetheless, most of the time, the Child would respond briefly yet adamantly that she did not want it. 

44.  Ms Lim further reported that while the Foster Mother had mentioned her reservation in taking care of the Child in the long run, she changed her mind in later sessions and that she felt deeply touched by the Child who constantly indicated her deep attachment to her and her family.  The Foster Mother then indicated that she was willing to keep the Child with her (together with the foster sister as the Foster Mother had fostered another girl)  until they turn 18.  The Foster Mother also has a son of her own who is working.

45.  Given the Child’s consistent expression of her reluctance to accept an adoptive family, Ms Lim opined that the Child is not prepared for adoption.

46.  Thereafter, two social workers, one from the Family Service Centre and one from the Christian Foster Services were arranged to interview the Foster Mother and they provided a further report of “supplemental information” on 29 December 2020, to clarify what the Foster Mother had told Ms Lim (“Supplemental  Information”).  The Foster Mother was reported to have clarified what she had said to Ms Lim, amongst which, that her present physical condition was fine and that she could care for the Child until her adoption but if there were to be a change in the Foster Mother’s health condition, this would affect her physical strength and stress and/or if the Child when growing up could not get on with the foster family, the Foster Mother said she would then consider terminating the foster arrangement.

47.  It is not clear why those social workers were arranged to interview the Foster Mother again after Ms Lim submitted the 1^st Psychological Report.  In any event, those social workers are not clinical psychologists and there was also no further discussion with the Child in relation to the Foster Mother’s clarification.

48.  On 27 May 2021, the Director produced another updated psychological report on the Child (“2^nd Psychological Report”), this time from a different clinical psychologist Ms Sara Siu Ngar Lam (“Ms Lam”)  instead of from Ms Lim.  Although the Child still said no when asked whether she would like to have new parents, Ms Lam opined that this was related to her general sense of insecurity.  The Child maintained her wish for the Foster Mother to look after her until she turns 18 and when asked if Foster Mother would no longer be capable of looking after her, the Child had said then she would prefer to be adopted.  Ms Lam thus opined that the Child did not totally resist the idea of adoption and that with more understanding of the reality, the Child may become more receptive to the idea of adoption.  Ms Lam also opined that it was questionable as to whether the Foster Mother fully understood the Child’s psychological needs, and that it was possible that with follow-up psychological intervention, the Foster Mother would have more understanding of the Child’s emotional needs.

THE OS REPORT 

49.  As mentioned earlier, it was at the 1^st hearing on 18 March 2021 that this Court was alerted to the 1^st Psychological Report and directed that OS be appointed for the Child.

50.  Mr Lee submitted his report on behalf of the OS on 4 June 2021 and reported that the Foster Mother is presently the Child’s primary carer and that the Foster Mother has confirmed that she has no intention to adopt the Child but has indicated her willingness to take care of the Child until she turns 18, and there is no evidence to suggest that the Foster Mother is suffering from any physical and mental health condition which hinders her ability to continue looking after the Child.  Nor is there evidence of any change in the relationship between the Child and the foster family.

51.  Mr Lee saw the Child on 12 April 2021.  She was accompanied by her present caseworker Ms Tse Kit Wah of the Family Service Centre.  Mr Lee was told that the Child was seen by the new clinical psychologist Ms Lam on 7 April 2021 who had explained to the Child about adoption.

52.  As revealed in the OS Report, the Child addressed the Foster Mother as “Auntie” and her son as “Elder Brother” (“Elder Brother”).  As mentioned, there is another girl fostered by the Foster Mother (“Foster Sister”), who is about 8 years 6 months old.  The Child is now attending primary 1 at a local school and the Foster Sister attends primary 3 at the same school.  The Child was reported to be attached in particular to the Foster Mother and the Elder Brother.

53.  When asked whether she understood what adoption meant, the Child had answered that she did not know and that she could not remember if any one had discussed adoption with her.  She did not want to know what adoption was.

54.  When asked about her father and whether she had met her father before, the Child remained silent and shook her head and claimed she had not met her father.  She further told Mr Lee that she was neither willing to see her father nor wished to know about him.

55.  When told by Mr Lee that as the Foster Mother would grow old and might not be able to look after her and the Foster Sister, the Child had replied that Elder Brother could take up the responsibility although she had not enquired if he was willing to do so.  When Mr Lee suggested to the Child that there may be some kind and nice people such as another auntie and uncle who wished to take care of her, the Child’s response was no and she answered that she wanted to stay with the Foster Mother, Elder Brother and the Foster Sister only and did not want any change and that she requested Mr Lee to inform the Judge.  Mr Lee reported that towards the end of the interview, the Child had repeated her wish to stay with the Foster Mother.

THE HEARING ON 15 JUNE 2021

56.  At the hearing before this Court on 15 June 2021, D maintained his opposition to the Director’s application and asked whether he could see the Child upon his release.  There were no other submissions made by him. 

57.  The Court had asked both Ms Wong and Mr Lee to submit further authorities to assist the Court and the Court then reserved its decision.

THE PROPER APPROACH IN SECTION 5A APPLICATIONS

District Court or Court of First Instance of the High Court

58.  Under section 2 of the Ordinance, “Court” in the Ordinance means either the Court of First Instance (“CFI”)  or the District Court (Family Court)  save in Part 5 and section 23B, the “Court” means the CFI.

59.  Thus, applications under Part 5 and section 23B of the Ordinance are in the exclusive jurisdiction of the CFI.  Further, as set out in Rule 14A of the Adoption Rules, an application by a parent under section 5(5D)  of the Ordinance for an order revoking that parent’s consent given in the prescribed general form of consent shall have to be made to the CFI.  Save as provided, the other applications under the Ordinance can be made in the District Court (Family Court).

60.  Part 5 sets out provisions in relation to an adoption under the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption done at the Hague on 29 May 1993 (“Convention Adoptions”).

61.  Section 23B relates to applications made by the Director passing care and control of the child with a view to his/her adoption by a person not residing in Hong Kong.  The section is set out hereunder in full:

“23B. Order passing care and control of infant with a view to his adoption

(1)  Where on an application made to the Court by the Director in relation to an infant residing in Hong Kong, the Court is satisfied that care and control of the infant should be passed to a person authorized by the Director for the purposes of this subsection with a view to adoption of the infant by a person not residing in Hong Kong, then the Court may, subject to subsection (2), make an order to that effect.

(2)  The Court shall not make an order under subsection (1)  unless it is satisfied—

(a)  that—

(i)  the infant is freed for adoption by virtue of an order made under section 5A;

(ii)  consent for the infant to be adopted has been given by each and every person whose consent is required by section 5(5)(a); or

(iii)  (where any person whose consent is required by section 5(5)(a)  has not given such consent)  were the application made for an adoption order, his consent ought, in all the circumstances of the case, to be dispensed with under section 6; and

(b)  that the order 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.”

62.  In light of the above sections, it seems that in a case when the Director decides to make a section 5A application in the CFI, instead of in the District Court, the Director has in mind a Convention Adoption and that once a suitable adopter is identified, the Director intends to make an application for passing care and control of the infant to a person not residing in Hong Kong under section 23B.   

63.  The above is not always made clear to the court by the Director in the section 5A application.  In my view, the Director’s affirmation in a section 5A application should set out clearly the Director’s adoption plans, whether it is for a local adoption or for a Convention Adoption.  This is relevant in considering the child’s best interests and in particular in ascertaining an older child’s wishes and opinions to the adoption plan having regard to the age and understanding of the child.

64.  Further it has come to this Court’s attention that a section 5A applicaton is made by the Director in the CFI, sometimes under “HCAD”[2] and sometimes under “HCMP”.  For consistency sake, as these applications are in relation to a child’s proposed adoption, they should all be issued under “HCAD”.

The two-stage process

65.  One of the Supplemental Authorities provided to this Court by Ms Wong is the Northern Ireland case of Re S and C (Care Order: Freeing for Adoption) [2005] NI Fam 15 in which Gillen J, as he then was[3], gave a detailed judgment.  Gillen J has referred to the textbook Hershman and McFarlane[4] [on Children Law and Practice] (“Hershman and McFarlane”).

66.  Division D in the current edition of Hershman and McFarlane is on the subject of Adoption. 

67.  Briefly, our section 5A was first introduced in 1987 and was based on section 18 of the UK Adoption Act 1976 and our section 6 in relation to dispensation with consent to adoption appeared to be based on section 3 of the UK Adoption Act 1950.  Notwithstanding the major amendments in United Kingdom on the law relating to adoption since 1950, I find the key principles set out in Section 1 of Division D of Hershman and McFarlane to be of assistance.

68.  In particular, it is explained in paragraph [126] in Section 1 of Division D as follows:

“When considering an application for a placement order or for an adoption order the court has the power to dispense with a parent’s or guardian’s consent to the relevant order on one of two specified grounds.

Under the earlier law, dispensing with consent to adoption was said to involve the court in a two-stage process:

(1)  Is adoption in the best interests of the child?

(2)  If so, is a ground or grounds for dispensation established, on the balance of probabilities?

These two stages were separate and had to be considered by the court in the sequence set out above.[5]

Despite the change wrought by [Adoption and Children Act 2002], s1(7), by which the question of dispensing with consent is now governed by the paramountcy of the child’s welfare and despite one of the statutory grounds for dispensation now being based upon the child’s welfare requiring it, it seems that a two stage approach remains appropriate…

The consideration of whether parental consent should be dispensed with should be undertaken and decided at the time when making the relevant order is under consideration[6].”

69.  The two-stage process was also referred to by Gillen J in his earlier judgment in Re G; Re S (Care Order: Freeing without consent: Contact) [2001] Lexis Citation 3643.  In that case, the application was made by the Health and Social Services Trust (“the Trust”)  for a care order in the case of each child under Article 50 of the Children (Norther Ireland)  Order 1995 (“the 1995 Order”)  and thereafter if a care order is made, for an order freeing both children for adoption without parental consent pursuant to Article 18 of the Adoption (Norther Ireland)  Order 1987 (“the 1987 Order”).

70.  Gillen J had said in his judgment[7]:

“In either freeing or adoption proceedings, the court has the power to dispense with the parents agreement to adoption on one or more of the six specified grounds set out in art 16(2) of the 1987 Order.

In this case the ground now relied on by the Trust in each case is that the parent is withholding her agreement unreasonably.

Dispensing with agreement to adoption involves the court on a two stage process:

(1)  Is adoption in the best interests of the child?

(2)  If so, is a ground or grounds of dispensation proved on the balance of probabilities?

These two stages are separate and must be considered by the court in this sequence.  The consideration of whether parental consent should be dispensed with must be undertaken and decided at the time when the freeing for adoption order is to be made.

If I make a care order in either or both of these cases and then move on to consider the question of freeing and I conclude that adoption is in the best interests of the children I must then turn to consider in each case whether or not the Trust has satisfied me that the parent H is withholding her consent unreasonably.”

71.  As seen in the Re S and C (Care Order: Freeing for Adoption), Gillen J took the same approach.  He first considered whether a care order should be made.  He then adopted the two-stage process, (1) to consider the application for freeing for adoption under Article 18 of the 1987 Order and (2) upon being persuaded that adoption was in the best interests of each of the children in that case, he then went on to consider whether parental consent should be dispensed with.

72.  Notwithstanding the differences in the statutory provisions, I do not see why the two stage process set out in earlier UK authorities should not be followed.

73.  To summarise, in my view, the proper approach in considering a section 5A application should be by way of a two-stage process, namely:

(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?

74.  As seen in the earlier UK authorities, the two stages are separate and must be considered by the court in the above sequence.  Further, the consideration of whether the parental consent should be dispensed with must be undertaken and decided at the time when the freeing for adoption order is to be made.

75.  As for stage (1), in considering whether adoption is in the best interests of a child, in the Director of Social Welfare v YPC [2020] 5 HKLRD 233, this Court has set out the Adoption Checklist[8]. Whilst the Adoption Checklist is not in our legislation and there is no statutory requirement for the parties or the Court to consider or to refer to the factors therein which may serve only as an “aide memoire”[9], it is nevertheless helpful for the parties and the courts to refer to those factors in considering whether it is in the best interests for the subject child to be adopted.  As a matter of good practice, the Director should include in his supporting affidavit any evidence on the relevant and applicable factors in the Adoption Checklist, whether in relation to a local adoption or for a Convention Adoption and why it is in the best interests for the child to be adopted.

76.  With the above in mind, I now turn to the present application.

STAGE ONE - IS ADOPTION IN THE BEST INTERESTS OF THE CHILD?

77.  Apart from setting out the 3 grounds relied on by the Director for dispensation of D’s consent and setting out the circumstances leading to the present application, there was no evidence in Mr Lau’s 1^st affidavit in relation to any of the factors in the Adoption Checklist or why the adoption is in the best interests of the Child, nor did he make it clear whether the proposal was to arrange for a local adoption for the Child or for a Convention Adoption.  

78.  It was only in his 2^nd affidavit that Mr Lau then set out why the Director considered that it would be in the best interests of the Child for her to be freed for adoption.  As summarized by Ms Wong, there were 4 reasons given, namely:

(1)  While staying with the Foster Mother until the [Child] turns 18 years old may be one of the options alternative to adoption, the Foster Mother clarified that her willingness is conditional upon the [Child’s] physical and mental health condition and that a continuous satisfactory relationship is maintained between the [Child] and her foster family of the [Child].  Also, the Foster Mother and her family has no intention to adopt the [Child] in future;

(2)  The Foster Mother expressed her willingness to assist the [Child] to adapt to her future adoptive family.  Also, the [Director] and/or recognized oversea adoption agencies will provide not less than 6 months’ supervision and counselling service, before making recommendation to Court to approve the adoptive arrangement

(3)  Foster care service is a temporary care and supervision arrangement while the adoptive family is a permanent home to the [Child]; and

(4)  As an adoptive family provides a stable and continuity of relationship to the [Child], it is considered to be in the best interest of the Infant to be adopted.

79.  So far as (1)  is concerned, what the Foster Mother had said in the 1^st Psychological Report and the Supplemental Information was whether she could continue to care for the Child would depend on her own (ie the Foster Mother’s own)  health condition, and not the Child’s mental and/or health condition.  There seems to be a misunderstanding on the part of Ms Wong in this regard in her submissions.

80.  Apart from setting out the above 4 reasons, Ms Wong had made no submissions in her first Skeleton Submissions in relation to the Adoption Checklist factors or why the Director believed adoption would be in the Child’s best interests and/or why he believed that the chance for the Child to be adopted was optimistic[10]. It was not even made clear whether the Director had in mind a local adoption or a Convention Adoption.

81.  It was only in her Supplemental Skeleton Submissions that Ms Wong then set out the Adoption Checklist factors and apart from repeating the above 4 reasons, she relied mainly on the 2^nd Psychologist Report. 

82.  Briefly, Ms Wong’s submissions were that:

(1)  Ms Lam’s recommendation in the 2^nd Psychologist Report should be adopted, namely “while it is ideal to get a “yes” from the [Child] before proceeding, it may be more realistic for the Court to consider giving legal consent for the adoption process to proceed while the professional continue to work on managing the [Child’s] anxiety towards adoption and removing the obstacles by enhancing her sense of security and trust towards adults”.

(2)  The Child’s rejection towards adoption was largely affected by her general sense of insecurity and mistrust in adults, with due consideration of her age and understanding on adoption and consequences of not being adopted.  An adoptive family by nature provides a permanent and authentic relationship could specifically meet the Infant’s yearning for security and trustful relationship, which a substitute family care service cannot provide in long term.

(3)  On the needs of the Child, the observations from Ms Lam revealed the inadequacy of comprehending the emotional needs of the Child by the Foster Mother.  While Ms Lam planned to offer follow-up services to help the Foster Mother to better understand the Child’s emotional needs, the existing foster care placement is conditional and subject to renewal of service contract with the foster family every year and that the foster family can terminate the contract of its own accord and there is no guarantee that it can continue until the Child reaches 18.  The Foster Mother had been invited to adopt the Child but the Foster Mother declined.  There is thus considerable risk associated with maintaining the status quo given that the Child is still at her tender age and there is no guarantee on how long the foster care could last.

(4)  It is further pointed out that if the foster care placement is terminated, the Child would be either arranged to be cared for by another foster family, or to other residential care services such as small group homes[11] or children’s homes[12].

83.  Ms Wong further submitted that both the psychologist and caseworker would continue to provide the Child with follow-up sessions to help remove the obstacle by enhancing her sense of security and trust towards adults, as well as familiarizing herself with cases about children being adopted.  She referred to what Ms Lam said in the 2^nd Psychologist Report, “it takes time for trust to be established…by the time a sense of security is restored and a definite Yes is obtained from the Infant, the [Child] would have missed her golden age to be adopted”.  Ms Wong thus submitted that any delay would highly likely to prejudice the Infant’s welfare.

84.  To summarise, Ms Wong’s submissions are:

(1)  The Child’s rejection towards adoption is largely affected by her general sense of insecurity and mistrust in adults;

(2)  Foster care service is a temporary care and supervision arrangement and there is no guarantee that the Child will be able to remain in the care of the Foster Mother until she is 18;

(3)  On the other hand, an adoptive family by nature provides a permanent and authentic relationship, a stable and continuity of relationship to the Child;

(4)  The Foster Mother showed inadequacy in comprehending the Child’s emotional needs.

85.  In so far as this Court can see from the 2^nd Psychological Report, Ms Lam saw the Child on two occasions only, once with the present case worker Ms Tse Ki Wah on 7 April 2021, and once on 21 May 2021, when Ms Lam saw the Child and the Foster Mother separately.  Ms Lam also interviewed Ms Tse on the telephone and the Child’s class teacher.  Ms Lam then concluded that the Child’s rejection towards adoption is related to her sense of insecurity and mistrust in adults and that the Child repeatedly expressed her wish to be cared for by her foster mother until she reaches 18[13].

86.  It is not quite clear what Ms Lam had in mind, when she said “it may be more realistic for the court to consider giving legal consent for the adoption process to proceed while the professionals (case worker and the clinical psychologist)  continue to work on managing the Child’s anxiety towards adoption and removing the obstacles by enhancing her sense for security and trust towards adult.”

87.  Presumably, what Ms Lam is saying is that this Court should free the Child for adoption first and then the professionals to continue to work on the Child.  In this respect, Ms Lam is misconceived, this Court cannot simply rubber stamp the application and the Court will need to consider and come to a view that adoption is in the best interests of the Child first before the Court can make a freeing order, and in considering her best interests, the Court is required to give consideration to the Child’s wishes and opinions and the Court should also consider other factors in the Adoption Checklist.  What is clear is that Ms Lam had herself mentioned that the Child had repeatedly expressed her wish to be continued to be cared for by the Foster Mother until she is 18 and there was nothing in the 2^nd Psychological Report to indicate that Child was not of an age or understanding for her wishes and feelings to be taken into account.

88.  There was also no mention by Ms Lam as to the information contained in the 1^st Psychological Report by Ms Lim and it was not clear as to whether she had been provided a copy thereof.  What was stated by Ms Lim in the 1^st Psychological Report was the she had seen the Child regularly between September 2018 when the Child was about 4 years and 6 months old until 10 November 2020 (date of her report)  when the Child was about 6 years and 8 months old.  The Assessment Period was over 2 years and yet when Ms Lam saw the Child, she was still repeatedly expressing her wish to remain with the Foster Mother.  By now it has been almost 3 years when the professionals did not seem to have succeeded in managing the Child’s anxiety.

89.  It was not quite clear from Mr Lau’s affirmations or from the Psychological Reports as to whether the Child had been explained that what is being planned for her is likely to be a Convention Adoption, namely that she may be sent overseas although it appears from the OS Report that she could have been[14]. In any event, it would not be surprising for a 7 year old child to feel insecure or any mistrust of adults or any anxiety if she were told that she would be sent to live with strangers, and her insecurity would be even greater, if she were to be sent to live with strangers overseas with whom she may not even be able to communicate.

90.  There was no evidence from Ms Lam as to what adverse psychological effect there would be on the Child, if any, if she were to be sent overseas to an adoptive family despite her repeated rejection to an adoption. 

91.  As stated by the learned authors in [4] in Division D in Hershman and McFarlane:

“Adoption is the legal process by which a child becomes a permanent and full member of a new family. Long-term foster care has disadvantages which may arise from the possible change of carers, of social workers or of plans for the child, all of which may erode the child’s sense of stability and security. Consequently, long–term fostering fell from favour as the preferred social work option for most children in long term care. Adoption has become the goal which is sought for most children who require a permanent family placement away from their natural parents…”

92.  It is clear that foster care service is a temporary care arrangement and there may not be permanency.  However, this does not mean that every adoption plan will be in the best interests of the child. 

93.  Under section 1 of Adoption and Children Act 2002, the courts in England and Wales are required to conduct a balancing exercise of the Adoption Checklist factors stated in section 1(4).  As set out in [19] in Hershman and McFarlane, the Court of Appeal decision in England in Re B-S (Children)  (Adoption:Leave to Oppose) [2013] EWCA Civ1146, [2013] 3FCR 481,[2014] 1 FLR 1035 has drawn upon contemporary authority on the correct approach to the welfare determination in an adoption, or placement for adoption, application.  Giving the judgment of the court, Sir James Munby P stressed the following three points drawn from the Supreme Court decision in Re B(A Child) [2013] UKSC 33,[2013] 2 FCR 525, [2013] 2 FLR 1075:

“(1)  although he child’s interests are paramount, a court must never lose sight of the fact that those interests include being brought up by the natural family unless the overriding requirements of the child’s welfare make that not possible;

(2)  the court must consider all of the available options before coming to a decision; and

(3)  the court’s assessment of a parent’s ability to provide good enough care for a child must take into account the assistance and support which the authorities would offer.”

94.  The court in Re:B-S held that the following two elements are ‘essential’ when a court is being asked to approve a care plan for adoption and being asked to make a non-consensual placement order or adoption order:

“(1)  there must be proper evidence from the local authority and from the children’s guardian which addresses all the options which are realistically possible and which contains an analysis of the arguments for and against each option; and

(2)  there must be an adequately reasoned judgment by the judge.”

95.  There was no proper evidence or submissions from the Director which addressed any balancing exercise of the Adoption Checklist factors and/or all the options realistically possible. It would appear from the 1^st Psychological Report that at the beginning of the Assessment Period, the Child was under the mistaken believe that the Foster Mother was her mother and the Elder Brother was her father, although she could identify the Foster Sister belonged to another family and during the Assessment Period, Ms Lim and the Foster Mother had jointly explained to the Child about her family background and her status as a foster child.  It would appear from the 1^st Psychological Report that there was a positive bondage between the Elder Brother and the Child and that he had helped cutting her fingernails regularly, looking after both the Child and the Foster Sister at home when the Foster Mother was not available, buying them toys frequently and serving the Child whenever the whole family took meals outside.  The present evidence thus indicates that the Child is not only close and attached to the Foster Mother but also to the Elder Brother, who is grown up and working.  Mr Lee has also mentioned in the OS Report that the Child has developed close relationship with the Foster Mother and the Elder Brother.  There has however been no evidence at all from the Director as to any views the Elder Brother may have in this matter. 

96.  Although it is pointed out by Ms Wong that the present foster arrangement can be terminated at any time, and although the Foster Mother has put caveats on whether she will be able to care for the Child until the Child is 18, there is in fact no sufficient evidence before the Court that the present foster arrangement will be terminated by the Foster Mother in the near future.  There is also no reason or evidence that the Director will terminate the present foster arrangement in the near future.  Thus, for the Child to remain in the present foster home is a realistic possible option.

97.  There has also not been any updated information on the views of the Child’s paternal family members since the paternal uncle signed an undertaking (or rather a notification to the Social Welfare Department)  on 16 October 2018 stating that due to personal reasons, he and his wife were unable to care for the Child[15]. It is also not clear when Madam Fung last saw the Child.  Although Madam Fung is elderly, there has been no updated information on Madam Fung’s health condition.  That the paternal family members were content for the Child to remain being cared for in her present foster home in 2018 does not necessarily that they will not have other views in the event that the present foster arrangements are to be terminated or that the Child may be sent overseas for adoption.  There is also no information as to what charges D was convicted of in the past, the number of times he has been in prison, and whether there is any realistic chance of him being able to find work and to maintain the Child, and even if he were not able to find work, whether he could look after the Child with CSSA.

98.  There should have been some updated information from the Director in order for the option of the Child being cared for by her paternal family members to be excluded completely, even though in light of Mr Lee’s observations in the OS Report in respect of the relationship the Child has with her relatives, the option of the Child being cared for by D and/or her other paternal family members does not appear to be realistic. 

99.  There was no evidence from the Director as to the factors under the Adoption Checklist save the Child’s wishes and feelings and her needs.  Ms Lam’s views as to the Foster Mother’s inadequacy of comprehending the Child’s emotional needs seemed to contradict what Ms Lim had said in paragraph 8 of the 1^st Psychological Report.

100.  Mr Lee has set out in the OS Report his observations on the applicable factors in the Adoption Checklist.

101.  Mr Lee has pointed out that the Child has been explained the concept of adoption by at least the 2 clinical psychologists namely Ms Lim and Ms Lam and the Child has expressed her clear and strong preference to remain with the Foster Mother and the Elder Brother with whom the Child has developed close relationship.  Mr Lee is of the view that the wishes and feelings should be given due weight and taken into account in light of the Child’s age and emotional needs. 

102.  Mr Lee has pointed out that there is no medical record of any significant health issues of the Child save that reportedly she was born with neonatal narcotic withdrawal syndrome and other related physical problems and Mr Lee was of the view that the Child was being taken good care of psychologically by the Foster Mother. As pointed out by Mr Lee, the Child has never been taken care of by her biological parents or extended family and in fact the Child has expressed her strong resistance to her father.  In the circumstances, there appears to be little adverse effect, if any, on the Child having ceased to be a member of her original family.

103.  Mr Lee has also observed that the Child is a cheerful and polite girl and throughout his interview with her, she remained in good mood and relaxed and had not presented any emotional disturbance or anxiety.  Although the Child appeared to be evasive to the questions put to her about adoption, she was in general responsive and in particular she was forthcoming and spontaneous to express her rejection of her father and her affection with the foster family.

104.  As seen in the 1^st Psychological Report, the Child was very disturbed when the foster family went for a trip in Mainland China and left her with a temporary caretaker during the Lunar New Year holiday of 2019 and her previous problem of enuresis and encopresis reappeared and faded out only after she was restored to the foster family and Mr Lee was of the view that any change in the present caring arrangement might cause significant emotional impact on her.

105.  Pausing here, I would repeat what I have said earlier, Ms Lam did not seem to have considered in the 2^nd Psychological Report as to whether there would be adverse psychological impact on the Child if she was sent away from the foster family to strangers in a foreign country notwithstanding her rejection of the same.

106.  As said by Mr Lee, the evidence so far indicated that D seldom visited the Child and had never provided any financial support to her, nor had he showed care or concern about her and that given the background and attitude of D, it appears that he is not in a position to provide a promising and/or secure future for the Child, and there is apparently also no relative willing and suitable to take care of the Child.  The evidence showed that D did visit the Child when he was not in prison but it appeared that he had been mostly in the prison in the past few years.  As said earlier, there has not been any updated information in relation to the paternal family of the Child or when they last saw the Child. 

107.  The Child would seem to have been duly informed and explained the effects of the adoption including a Convention Adoption (although there was no evidence or confirmation from the Director on this)  and she has showed strong rejection to the same and Mr Lee is of the opinion that having regard to the age and degree of maturity of the Child, her views against intercountry adoption should be given weight.

108.  Mr Lee concludes that given the Child’s consistent expression of her reluctance to accept an adoptive family, the Child is not prepared for adoption and that to put the Child into an adoptive family against her wish is not in her best interests.  Mr Lee considers it desirable to maintain the status quo for the Child to remain in the foster family and that the idea of adoption whether it is local adoption or intercountry adoption is not an appropriate option at this stage.

109.  As seen at [31]-[32] in Division D, Hershman and McFarlane[16], the requirement contained in the Adoption and Children Act 2002 s 1(5)  for the adoption agency that is placing a child for adoption to give due consideration to the child’s religious persuasion, racial origin and linguistic background has been repealed in England with effect from 25 July 2014 but the provision remains in effect in Wales.  However, in Re N (Adoption:Jurisdiction) [2015] EWCA Civ 1112, [2016] 1 FCR 217, [2016] 1 FLR 621, Sir James Munby P stressed that, in a case involving a child who is a foreign national, those parts of the Welfare Checklist which focus attention on the child’s national, cultural, linguistic, ethnic and religious background must be given consideration. Conversely, in my view, in particular in the case of an older child born and raised up in Hong Kong is to be sent abroad to a foreign country for a Convention Adoption, there should be considerations given to the child’s national, cultural, linguistic and ethnic background.  There simply has not been any evidence before this Court as to whether such considerations have been given.

110.  Having considered all the above, at this stage there is simply no sufficient evidence before this Court for this Court to be satisfied that an adoption and in particular a Convention Adoption is in the best interests of the Child.

STAGE TWO – WHETHER THE GROUNDS FOR DISPENSATION OF PARENTAL CONSENT HAVE BEEN PROVED ON A BALANCE OF PROBABILITIES

111.  As stated earlier, the two stage process has to be considered in sequence, and the consideration of whether D’s consent should be dispensed with should be undertaken and decided at the time when making the relevant order is under consideration. 

112.  As Stage One has not been satisfied, it is premature to consider Stage Two of the process.

113.  I would however make the following observation.

114.  In the present case, D has been registered as the Child’s father on her birth certificate, and he should be registered under one of the circumstances set out in section 12 (2)  of the Births and Deaths Registration Ordinance, Cap 174.  In England and Wales, it appears that a father who is not married to the child’s mother, may obtain parental responsibility by being named as the father in relation to a birth registered after 1 December 2003[17]. In Hong Kong, there has been a recommendation in the Law Reform Commission Report on Child Custody and Access published in March 2005[18] that an unmarried father should be capable of acquiring parental responsibilities and rights by signing the birth register.  This recommendation has in fact been included in section 6 of the proposed Children Proceedings (Parental Responsibility)  Bill but the Bill has not yet to be passed.

115.  In the present case, the evidence shows no one has disputed that D is the Child’s father.  However, as the current law stands, being registered as the father of the Child on her birth certificate does not automatically mean that D has parental rights as the Child was born out of wedlock.

116.  Under the Ordinance, “parent” in relation to a child who is born out of wedlock, means (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. 

117.  Sections 13(1) (c) and (d) of the GMO state as follows:

“(c)  where the minor is illegitimate—

(i)  a mother shall have the same rights and authority as she would have by virtue of paragraph (b)  if the minor were legitimate;

(ii)  a father shall only have such rights and authority, if any, as may have been ordered by a court on an application brought by the father under paragraph (d);

(d)  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.”

118.  As D has not made any application for rights and authority under section 13 (1)(d)  under the GMO, he does not in fact fall within the definition of a “parent” whose consent is required under section 5(5)(a)  of the Ordinance.

119.  Having said this, it appears from [75], Division D, Hershman and McFarlane, in England and Wales, where the father of the child does not have parental responsibility for the child and the father’s identity is known to the adoption agency and the agency is satisfied it is appropriate to do so, the agency must carry out certain requirements in providing counselling and information for and ascertaining feelings and wishes of the parent or guardian of the child and others as set out in regulation 14 of the Adoption Agencies Regulations 2005 as if those requirements applied to the father, and ascertain so far as possible whether father (a)  wishes to acquire parental responsibility for the child under section 4 of the Children Act 1989 (the 1989 Act)  or (b)  intends to apply for a child arrangements order or contact order with respect to the child under section 8 of the 1989 Act, or where the child is subject to a care order, an order under section 34 of the 1989 Act.  Further, failure to contact a natural father may give rise to a breach of obligations under the European Convention on Human Rights and the UN Convention on the rights of the Child but in rare and exceptional circumstances a court may dispense with the requirement to make contact with a father. 

120.  In the present case, I am of the view that the Director has properly made D a defendant.  D has signed one statement on 20 November 2015 and one on 9 January 2018 together with 4 declarations on 9 January 2018 to the Director[19]. In particular, in the statement on 20 November 2015 he indicated he understood that the court could under section 3(1)(d)  of the GMO grant an unmarried father parental rights but he indicated he would not make such an application and yet he said he still hoped to care for the Child.  In one of the declarations, he had also confirmed that he had been explained that he needed to make an application to be the Child’s lawful custodian/guardian.  He maintained his objection to the adoption in those statements and declarations.

121.  Although D has not had the benefit of legal representation, the evidence showed that D had been explained by the Director that he would need to make an application to the court under the section 13(1)(d)  of GMO and/or to make an application to the court for custody, care and control, and/or access to the Child.  Although his application for legal aid has been rejected, there is no reason why he cannot issue any application in person or to seek legal assistance.  It is open to him whether to take any further steps in this matter.  I am not prepared to make any order granting him any rights without him having issued an application under section 13(1)(d) of GMO. 

CONCLUSION

122.  As said, Stage One of the process has not been satisfied.  In light of this, the Director’s present application is declined and dismissed.  However, this does not prevent the Director from making any future applications in case of any change in the Child’s circumstances.

123.  I make no order as to costs.

124.  The Court will arrange for this judgment to be translated into Chinese and a copy of the Chinese translation will be distributed to all when available.