M (A minor) by his next friend ASP v. WP AND OTHERS

HCMP 439/2021

[2021] HKCFI 2699

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 439 OF 2021

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REASONS FOR DECISION

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INTRODUCTION

1.  The originating summons herein was issued on 31 March 2021, initially by the plaintiff (“P”) (ASP as next friend of a minor M) against 3 defendants (respectively “D1”, “D2”, and “D3”) and P seeks, amongst others, the following orders:

(1)  the minor M be made a ward of this Court during his minority or until further order;

(2)  an expedited suitability assessment report by the Director of Social Welfare (“Director”) be called for to assess the suitability of D1 to adopt M;

(3)  D1 be given leave to make arrangements for the adoption by him of M.

2.  D1, D2 and D3 have filed their respective acknowledgment of service and indicted that they do not intend to contest the proceedings.

3.  At the 1^st direction hearing before this Court on 9 June 2021, this Court directed that the Director be made a party in these proceedings as the 4^th defendant and to lodge any written submissions whether in relation to policy considerations or to the present procedure adopted by P.  This Court directed amongst other things an expedited suitability assessment report by the Director on the suitability of D1 to adopt M and also a social investigation report be called for on M’s care arrangements.

4.  The suitability assessment report (“Suitability Report”) was submitted on 20 July 2021 and the social welfare report (“SWR”) was submitted on 21 July 2021 (collectively referred to as “Reports”).

5.  At the 2^nd hearing before this Court, on 11 August 2021, Counsel Mr Shaphan Marwah appeared for P, Mr Azan Marwah appeared for D1, and Miss Sanyi Shum, Government Counsel of the Department of Justice appeared for the Director.  D2 and D3 were not legally represented and they were absent at both hearings before this Court.

6.  At the 2^nd hearing, this Court granted leave to D1 to make arrangements for the local adoption of the ward and that P to notify the Court when the adoption order has been made.

7.  The reasons for my decision are set out hereinafter.

BACKGROUND

8.  D1 is of British nationality and he was born and brought up in United Kingdom.  He arrived in Hong Kong to work around 1996 and became acquainted with Mr L, the elder brother of D2 in 2000.  D1 and Mr L started cohabiting as a couple in 2001.

9.  Mr L was born and brought up in Hong Kong.  He received education up to Form One in Hong Kong and works as a hairstylist and is said to be financially self-sufficient.

10.  D1 has retired in 2007 but is reported to have adequate assets in covering the family expenses and raising a child in the family.

11.  M was born in April 2005 and is now 16 years old.  D2 and D3 are respectively the lawful and biological mother and father of M.  D2 and D3 married in September 2003 and D2 gave birth to a son in January 2004, and thereafter the marriage went into difficulties.  As a result of an unplanned pregnancy, D2 gave birth to M but she separated with D3 in the same year. 

12.  D2 and D3 later divorced in October 2007 and custody of both sons were granted to D2 with reasonable access to D3.  In 2007, D2 formed a relationship with another man and gave birth to another son out of that relationship.  D3 later remarried and now lives with his 2^nd wife and their daughter at a rented private abode.

13.  Soon after M was born, D2 had difficulties in caring for him and she then asked her elder brother Mr L to help in taking care of M when M was a few months old.  At first, D2 would arrange home leave for M, but later M was placed under the care of D1 and Mr L for long stay.  D1 and Mr L became the main care givers of M and for better handling of M’s studying and travel arrangements, D2 and D3 appointed D1 and Mr L as M’s guardians in September 2006. 

14.  Thus, M was essentially brought up by his maternal uncle Mr L and D1.  It was D1 who was responsible for M’s school arrangement and D1 fully supports M financially.  In 2019, at M’s initiative, M was arranged to attend a boarding school in United Kingdom where he now is.

APPLICATIONS UNDER SECTION 23A OF THE ADOPTION ORDINANCE (“AO”)

The statutory provision

15.  Section 23A of the AO provides as follows:-

“(1) Subject to subsections (2) and (3), no person other than—

(a) the Director;

(b) an accredited body acting under and in accordance with its accreditation; or

(c) a person acting in pursuance of an order of the Court,

shall make arrangements for the adoption of an infant, or place an infant for adoption.

(2) Subsection (1) shall not apply if the prospective adopter, or (where the prospective adopters are 2 spouses) either of the prospective adopters, is—

(a) a parent or relative of the infant; or

(b) a person who is married to a parent of the infant.

(3) If an arrangement leads to the placement of an infant from a place that lies outside Hong Kong but within the People’s Republic of China with a person resident in Hong Kong, then subsection (1) shall not apply to the arrangement nor the placement.

(4) A person who—

(a) contravenes subsection (1); or

(b) receives an infant placed with him in contravention of subsection (1),

shall be guilty of an offence and shall be liable to a fine at level 6 and to imprisonment for 6 months.

(5) For the purposes of this section, a person shall be deemed to make arrangements for the adoption of an infant if—

(a) he enters into any agreement, or makes any arrangement, for the adoption of the infant by any other person where the adoption is effected, or is intended to be effected, in Hong Kong or in a place outside the People’s Republic of China;

(b) he initiates or takes part in negotiations the purpose or effect of which is the conclusion of any agreement, or the making of any arrangement, as referred to in paragraph (a); or

(c)  he causes another person to do an act specified in paragraph (a) or (b).”

(emphasis added)

16.  There is no prescribed procedure under the Adoption Rules, Cap. 290A (“AR”) for an application under section 23A of the AO (“s23A Application”). 

Legislative history

17.  Miss Shum has in her Skeleton Submissions set out the legislative history of section 23A.

18.  Section 23A did not exist when the AO was first enacted in 1956 (“1956 Ordinance”).  Instead, section 23A was added pursuant to s.30 of the Adoption (Amendment) Ordinance 2004 (28 of 2004) (“2004 Amendments”) commencing on 25 January 2006.

19.  The Adoption (Amendment) Bill 2003 (“2003 Bill”) had its 2^nd reading on 18 June 2003.  According to the Legislative Council Brief for the 2003 Bill dated 3 June 2003 issued by the then Health, Welfare and Food Bureau (“Bureau”) and the speech of the then Secretary for Health, Welfare and Food, before the 2004 Amendments were promulgated, private arrangements for local adoption by unrelated persons were not prohibited in Hong Kong.  As the Social Welfare Department might not be involved in making the adoption arrangements, such arrangements might give rise to various problems, such as lack of proper counselling and assessment, inability to verify consent given by birth parents, etc.  Accordingly, there was a real risk that a child would not be placed with the most suitable prospective adopters nor in the best available adoptive home.  It is against such background that the Director proposed to amend the AO to prohibit a person or an organisation, other than Social Welfare Department or adoption agencies authorised by the Social Welfare Department, to make arrangements for the adoption of a child, with the exception of adoption of a child by his/her birth parent or relative, or save in pursuance of an order of the Court[1]. 

20.  As reflected in the policy paper titled “Changes Arising from the Adoption (Amendment) Bill 2003 – Impact on the Current Arrangements on Local Adoption” submitted to the Bills Committee by the Bureau in February 2004, the object of the prohibition under section 23A is to ensure that the vital placement decisions are handled by qualified/experienced people who are not acting for personal profit, i.e. to provide statutory safeguard before the vital first step is taken to place the child.  This would help prevent the situation where the Court is presented with the constraint of a “fait accompli” as the bonding between the child and the prospective adoptive parent(s) will have already developed by the time the application is heard by the Court, making it difficult for the Court to reject an adoption application even if the prospective adoptive parent(s) is/are eventually found to be unsuitable[2]. See also the policy paper titled “Sanctions for Making Private Arrangements for Adoption by Unrelated Persons” submitted to the Bills Committee by the Bureau in May 2004[3].

21.  It was again highlighted during the resumed session of the 2^nd reading of the 2003 Bill that the problems arose because the Social Welfare Department might not be involved in making the adoption arrangements and the legislative intent was to ensure that vital placement decisions are handled by qualified and experienced people[4].

22.  The 2004 Amendments were eventually passed by the Legislative Council during the 3^rd reading of the 2003 Bill on 9 July 2004[5].

Adoption Procedure

23.  In Re G(Wardship Proceedings: Adoption Application) [2020] 4 HKLRD 276, this Court has briefly set out the “4 Steps” for a local adoption[6]. 

24.  In the case of a private local adoption of a non-relative, after leave of the Court under section 23A has been obtained, a person may lawfully proceed with arrangements for adoption or place an infant for adoption. 

25.  Miss Shum has in her submissions stressed again that in a private local adoption of a non-relative, the Director is still involved, as follows: 

(1)  Step 1 (consent) – An adoption order shall not be made except with 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 (s.5(5)(a)), although the Court may dispense with any consent so required (s.6).  The consent applicable to private adoption is specific consent under s.29A (i.e. a person is named as the prospective adopter for the infant).

(2)  Step 2 (deciding the placement) – The prospective adopter(s) shall be named in the consent and the prospective adopter(s) have to apply to the Director for an assessment of his suitability to be an adoptive parent (ss.27 and 29(1) of the AO).  Criminal record check will have to be conducted (s.28 ).  As and when the Director has assessed the prospective adopter(s) to be a suitable adoptive parent(s), the Director may proceed with the infant’s placement (s.29A(2)). 

(3)  Step 3 (placement) & Step 4 (application for adoption) – If the prospective adoptive parent is assessed to be a suitable adoptive parent:-

(a)  the Director as the guardian ad litem would observe and investigate during the placement whether the proposed adoption is in the best interest of the infant (s.21, AO and Rules 8 and 13 of the AR). The Director will make a report to the Court for consideration whether an adoption order should be granted.

(b)  the prospective adoptive parent(s) would lodge the relevant forms applying for an adoption order (Rules 3, 5 and 10 of the AR). 

Jurisdiction of CFI

26.  As this Court has stated in Re G, at paragraphs 30-31, applications under section 23A may be made in the District Court or in the Court of First Instance (“CFI”):  

27.  As pointed out by Miss Shum, there are certain applications which fall within the exclusive jurisdiction of the CFI under the regime of the AO and the AR as follows:

(1)  Under Section 2 of the AO, “Court” in the AO means either the CFI or the District Court, save in Part 5 (concerning Convention Adoption) and s.23B (concerning the Director’s application for an order passing care and control of infant with a view to his adoption by a person not residing in Hong Kong; see also Rule 31A of the AR.

(2)  Under Rule 14A of the AR, an application by a parent under s.5(5D) of the AO for an order revoking that parent’s consent given in the prescribed general form of consent shall have to be made to the CFI and the proceedings shall thereupon be transferred to the CFI. 

(3)  Under Rule 17(2) of the AR, where (a) any person whose consent is required under s.5(5)(a) fails to give consent; or (b) any person having a proper interest in the application objects to an adoption order being made, the District Court shall transfer the application to the CFI.

28.  In the present case, P has decided to invoke CFI’s inherent and wardship jurisdiction over M in making the s23A Application. At the 1^st hearing, this Court has pointed out that it is not necessary for parties to invoke the Court’s wardship jurisdiction solely for the purpose of making the s23A Application when there appears to be no objection from anyone (including the child concerned) to the proposed arrangement and no other reason why the child concerned requires the protection of a wardship judge.

29.  I would further add that the circumstances in Re G were quite different from the present case as in that case G had been a ward of this Court since 2014 and the s23A Application was made in 2020 by G’s foster parents.  The biological mother of G had opposed the application and initially there were also opposition and concerns of the Director who had raised, amongst other things, an issue as to whether the s23A Application should have been made in the wardship proceedings or in separate proceedings, as it was the foster parents who issued the s23A Application and they were not parties in the wardship proceedings.    

THE PRESENT APPLICATION

Whether any breach of Section 23A(1)(c)

30.  In the present case, as the SWR reveals, M has been placed in the care of D1 and Mr L, and raised by D1 and Mr L since M was about 3 months old, ie since 2005, before D1 has obtained leave under s.23A(1)(c) of the AO.  Thus, M has in effect been under the care of D1 upon a private arrangement by D2 and/or D3 with D1 and/or Mr L.   

31.  Further, by the Deed of Appointment of Guardians dated 7 September 2006 (“Deed”), D2 and D3have formally placed M in the care and control of the D1 and Mr L, who shared all parental rights and obligations in relation to M. 

32.  However, there was no sufficient evidence that at the time of placing M in the care of D1 and Mr L in about 2005, it was the intention and plan of D1 and/or Mr L on one part and D2 and/or D3 on the other part to enter into any agreement or to make any arrangement of the adoption of M. There was also no sufficient evidence that D1 and/or Mr L on one part and D2 and/or D3 on the other part were initiating or taking part in negotiations the purpose or effect of which was the conclusion of any agreement or arrangement for M to be adopted.

33.  As for the Deed, clause 5 of the Deed expressly states that the appointment of D1 and Mr L as guardians “does not in any way diminish, extinguish or reduce the natural parents’ rights and obligations”. Again, there was no sufficient evidence that at the time of executing the Deed, the parties to the Deed were intending to enter into any agreement or making any arrangement for M’s adoption or initiating or taking part in negotiations the purpose or effect of which is the conclusion of any agreement or the making of any arrangement for M’s adoption.  It was not the Director’s suggestion that the parties to the Deed envisaged any adoption arrangement at the time when the same was executed.

34.  Having considered above, there was no sufficient evidence that the parties to the Deed had contravened s 23A(1) or had received M in contravention of s 23A(1) or that they have been guilty of an offence under s 23A(4).

35.  Having said this, as pointed out by Miss Shum, the care arrangement for M does not amount to the “placement” as required under s.29A(2) of AO since before such care arrangement was made, no suitability assessment in relation to D1 was conducted by the Director or other authorised/accredited bodies.

36.  As stated earlier, the object of the prohibition under section 23A is to help prevent the situation where the Court is presented with the constraint of a “fait accompli”.  By having arranged M to be cared for by D1 and Mr L for 16 years, as reflected in the both the Reports, the bonding between M and D1 has already developed.  As pointed out by Miss Shum, from the policy perspective, the arrangements in the present case may not be consistent with the objective of section 23A.  The same concern would arise in other cases where, similarly, care arrangements of a child have been made by the birth parent(s) or other bodies without the involvement of the Director/ Social Welfare Department/ accredited bodies.  Thus, Miss Shum has submitted that in general, it would be more proper to conduct suitability assessment on the would be applicant(s) for an adoption order before proceeding with any child care arrangements as in the present case.  I agree.

37.  However, it is accepted by the Director that, even if there was a breach of s.23A(1), the breach does not preclude the making of an adoption order but it is a matter to be taken into account in conducting a balancing exercise: In re Adoption Application (Non-Patrial: Breach of Procedures) [1993] Fam 125 at 134B to 135E.  This position is also consistent with the legislative intent as shown in the policy paper titled “Sanctions for Making Private Arrangements for Adoption by Unrelated Persons, Bills Committee on Adoption (Amendment) Bill 2003” submitted to the Bills Committee by the Bureau of May 2004[7].

M’s residence issue

38.  Under section 5(6) of the AO, subject to section 20C(5) of the AO (which applies to a Convention Adoption), no adoption order shall be made in respect of any child unless the applicant and the child reside in Hong Kong.  

39.  There was no doubt, nor was it disputed that M was residing in Hong Kong and in the care of D1 until M began attending boarding school in UK in 2019.  Thus the question in the present case is whether M’s residency was broken by attendance at boarding school or any other factor since that time.  

40.  Miss Shum had referred the Court to the following cases:

(1)  In Re Adoption Application [1958] HKLR 150 at 152, the child was born in England to English parents, had not returned to Hong Kong since studying in England and there was no suggestion that the child was intending to return to Hong Kong.

(2)  In In the Matter of an Infant [1962] HKLR 167 at 169, the child was also born in England and the facts were almost identical to Re Adoption Application.  Blair Kerr J went so far as to remark that the child in that case “continues to live there (and, for all I know, may intend to continue living there for some years)” (at 170).

41.  Mr Azan Marwah submitted on behalf of D1 that the above approach in the cases cited by Miss Shum on behalf of the Director had long been departed from in Hong Kong and he had referred the Court to what was said by Hartmann J (as he was then) in N v O [1999] 1 HKLRD 68 at 83H, in relation to the “habitual residence” of the child in that case:

“Where, for example, a child’s removal to another country is understood to be temporary then the child does not take up habitual residence in that other country. That, of course, is true; the most obvious example in Hong Kong being the despatch of children to boarding school in other countries.”

(emphasis added)

42.  Mr Azan Marwah had also has referred this Court to the case of Re P (GE) (An Infant) [1965] Ch 568[8], at 585G, that:

“So long as the father and mother are living together in the matrimonial home, the child’s ordinary residence is the home—and it is still his ordinary residence, even while he is away at boarding school. It is his base, from whence he goes out and to which he returns. When father and mother are at variance and living separate and apart and by arrangement the child resides in the house of one of them—then that home is his ordinary residence, even though the other parent has access and the child goes to see him from time to time.”

(emphasis added)

43.  In the present case, M lives in Hong Kong with his de facto parents, D1 and Mr L.  M was born in Hong Kong to Hong Kong parents, and he is a Hong Kong Permanent Resident.  He does not hold UK nationality.  He is only absent from Hong Kong for the limited purpose of attending school in the UK, where he has no home and no right to live outside of that purpose.  Upon the outbreak of COVID-19 he had returned to Hong Kong to attend his lessons online between April and August 2020[9].  The only recent delay in his returning to Hong Kong during school holidays was caused by the quarantine restrictions.  M’s presence in the UK has no permanence and he returns to Hong Kong when he is not attending school. 

44.  It is not disputed that the test of residence is “a question of fact depending upon all the surrounding circumstances”[10].  Having considered the facts and all the surrounding circumstances of this case, I am satisfied that M’s residence in Hong Kong has not been broken by his attending boarding school in UK, and he remains resident in Hong Kong. 

BEST INTERESTS OF M AND THE ADOPTION CHECKLIST FACTORS

45.  In preparing for the Suitability Report, Ms Tsang, the Assistant Social Work Officer of the Adoption Unit, arranged an interview with M through What’sApp video.  M said he did not have a close relationship with his mother and does not have any memory of his birth father. He calls D1 “daddy” and likes to stay with him and he feels safe and secure when being with him, and he does not resist the same sex relationship between D1 and Mr L and that D1 is caring to him like a mother.  He expressed he understood the meaning and effect of adoption and agreed to be adopted by D1 as his son.

46.  Ms Tsui, the Social Work Officer of the Family and Child Protective Services Unit, interviewed M though Zoom for the purpose of preparing the SWR.  M has again expressed his relationship with D1 is very close and that he is cared with good support on this development, studies and many chances for exposure.  He indicated that he is willing to be placed under the care of D1 continuously. 

47.  What is clear from the Reports is that D1 has built up a very close father-son relationship with M since M was an infant. The Reports are positive and M himself has clearly expressed his agreement to be adopted by D1. 

48.  M is now 16 years old and his views should be given due consideration.  The present originating summons is in fact made by him through his next friend.

49.  There is consensus among all the parties that it is in the best interests of M to be adopted by D1.  The Director has not expressed any contrary views.  I will not set out all the relevant factors in the Adoption Checklist save to say I have considered those relevant factors and the Reports, and I am satisfied that it is in M’s best interests for this Court to grant leave to D1 to make arrangements for him to adopt M.

ORDER  

50.  In light of the above, I have made the orders as sought.