DIRECTOR OF SOCIAL WELFARE v. HSP

HCMP598/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 598 OF 2013

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PRELIMINARY RULING

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   (Adoption: Service and Dispensation of Consent)

Introduction

1. This is an application by the Director of Social Welfare (“Director”), for (i) an order that the consent of the defendant (“Mr Huang”) be dispensed with under section 5(5)(a) of the Adoption Ordinance Cap 290 (“Ordinance”), and (ii) an order that the child HY be freed for adoption under section 5A of the Ordinance.

2. I will simply refer to (i) as the Dispensation Order and (ii) as the Freeing Order in this ruling.

3. There is a preliminary issue in relation to the service of the originating summons (“OS”) on Mr Huang who lives in Mainland China.

Background

4. The birth mother of HY (“Mother”) was already pregnant with HY when she married Mr Huang on 21 January 2006.  According to the Mother, Mr Huang was not the birth//biological father of HY.

5. HY was born in Hong Kong in August 2006, and she will soon be 7 years old.

6. The identity of HY’s biological father was unknown, as according to the Mother, she had lost contact with the biological father since November 2005.

7. Mr Huang is a Mainland Chinese resident. He met the Mother in 2005 in Shenzhen through the introduction of a friend.  The Mother is a Hong Kong resident.  According to Mr Huang, after their marriage, he and the Mother had stayed briefly at the home of his paternal uncle (“Uncle”) and aunt (“Aunt”) in Yunfu, Guangdong Province, but thereafter the Mother did not return to Yunfu.  They never cohabited in Hong Kong.  Prior to their marriage, it appears that the Mother had borrowed a sum of about HK$100,000 from the Uncle.  Mr Huang said he last met the Mother in April 2007 in Hong Kong, but the Mother did not tell him about HY’s birth during that meeting.

8. After the Mother gave birth to HY, she indicated to Mother’s Choice, a charitable institution, that she wanted to give up all parental rights in respect of HY and as a result, HY was placed into foster care since she was just 14 days old.  HY has been with the same foster parents (“Foster Parents”) since then.

9. Shortly after placing HY with the Foster Parents, in September 2006, Mother’s Choice referred the case to the Director to follow up.

10. At that time, the Mother had not even applied for the birth certificate of HY, and it was only on 24 January 2007 that the birth of HY was duly registered with the Births and Deaths Registry[1]. The Mother was the informant, as stated on HY’s birth certificate, and Mr Huang was stated thereon to be the father of the HY, as he was then married to the Mother.

11. After the Director took over the case, the social worker of the Social Welfare Department working on the case (“Case Worker”) apparently had difficulties in contacting the Mother between 22 September 2006 and 20 December 2007[2].

12. It seems that it was only on 20 December 2007 that the Mother was arranged to sign a statutory declaration[3], to part with custody, care and control of HY to the Director and further signed a Form 4A, the statutory general consent form, giving her consent to HY’s adoption.

13. The Director was subsequently appointed the legal guardian of HY by the Juvenile Court on 28 January 2008 under the Protection of Children and Juveniles Ordinance, Cap 213.

14. As a pre-requisite to an application for adoption, the Director took the view that Mr Huang, being the father named on HY’s birth certificate, his consent would need to be obtained.  The Director thus requested assistance from the International Social Service (“ISS”) to locate Mr Huang in Mainland China.  This took almost another year, and eventually in January 2008, Mr Huang was located in Yunfu, Guangdong Province.  He was then told of the Mother giving birth to HY and the Director’s adoption plan for HY.  Based on the information before the court, it appears that Mr Huang had no knowledge of HY’s existence until he was informed by the worker from ISS (“ISS Worker”).

15. Notwithstanding not being told that he was not related to HY by blood, Mr Huang refused to sign a written consent to the adoption plan for HY.

16. Further, to complicate matters, Mr Huang indicated his intention to care for HY in Mainland China and to apply for HY’s custody.  Mr Huang was at that time still living with the Uncle and the Aunt in Yunfu and they both indicated that they were eager to assist Mr Huang in applying for custody of HY and to render full support including financial support to Mr Huang in bringing up HY.

17. To show their sincerity, Uncle and Aunt came to Hong Kong on 20 August 2008 to visit HY.

18. The ISS Worker conducted a visit to the home of Mr Huang, the Uncle and the Aunt on 3 November 2008 and prepared a home study report (“1^st ISS Report”).  The 1^st ISS Report revealed that the Uncle owned a construction materials company in Yunfu and the Aunt was a housewife.  Mr Huang was at that time working for the Uncle’s company as a driver.  As Mr Huang had not met HY at that time, ISS recommended that a final decision on HY’s custody be made only after her care in Yunfu had been assessed.

19. Thereafter, through arrangements of the Case Worker, Mr Huang personally visited HY in Hong Kong for 10 times between November 2009 and November 2010.  On each visit, Mr Huang was accompanied by the Uncle and the Aunt, and they stayed with HY for 2 to 5 hours.  During the period, Mr Huang contributed a total sum of $9,898 for the school and medical fees of HY and it appeared that Mr Huang was building up a good relationship with HY at that time.

20. In August 2010, Mr Huang had also through his then solicitors in Hong Kong made an application to the Family Court under FCMP 167 of 2010 (“Family Court Proceedings”) for custody, care and control of HY, and for leave to remove HY out of jurisdiction to live with him in Yunfu.

21. To assess the suitability of Mr Huang to be the custodian of HY, the Case Worker arranged a 10 day “home leave” for HY to stay with Mr Huang, the Uncle and the Aunt in Yunfu for about 10 days from 22 December to 31 December 2010 and for ISS to conduct a further home visit and to prepare a further report.

22. Suffice to say, the home leave did not go well. HY was returned by the Uncle to Hong Kong on 24 December 2010, after only 3 days, and without prior agreement of the Case Worker.  Apparently, on the 2^nd and the 3^rd day when HY was in Yunfu, HY cried when she woke up in the morning and yearned for the Foster Parents.  She apparently had cold symptoms but she refused to eat or take medicine.  She kept asking for the Foster Parents and became quite emotional.  The Uncle then decided to return HY to the Foster Parents in Hong Kong.

23. When HY met with the Case Worker subsequently, HY the Case Worker that Mr Huang was not with her for most of the time when she was in Yungfu and HY said she mainly stayed with the Uncle and the Aunt, but the Aunt had scolded her with bad words, such as 死八婆.  It was further found that HY did not have any cough/cold problems.  HY was very upset and said she did not want to see Mr Huang, the Uncle or the Aunt any more.  HY was about 4 years and 4 months old at that time.

24. After the shortened home visit, the Case Worker was not able to contact Mr Huang.  The Director took the view that Mr Huang was not suitable to be the custodian of HY, and this was duly stated in his report dated 23 February 2011 to the Family Court[4].  Mr Huang did not take any further steps in the Family Court Proceedings, which were subsequently discontinued on 28 April 2011[5]. 

25. Since then, Mr Huang failed to respond to the letters sent by Ms Tse, the then Case Supervisor on behalf of the Director, nor did he sign or return a “意向書” (“Intention Form”)[6] to indicate whether he would consent to HY’s adoption plans.  Eventually, the Case Worker contacted the Uncle on 12 January 2012 who reported that Mr Huang was in Inner Mongolia for business.  The Uncle indicated that his family did not want HY any more and the adoption procedure was troublesome to them.  The Uncle then suggested the Case Worker to call Mr Huang during Chinese New Year, but on 17 February 2012, when the Case Worker called, he was told by the Uncle that Mr Huang had permanently settled down in Inner Mongolia.  The Uncle further informed the Case Worker that Mr Huang had received all the letters from the Director and that he and his family did not intend to give a response.

26. Notwithstanding what was said by the Uncle, the Case Worker continued to try to make phone contact with Mr Huang and eventually succeeded on 5 April 2012.  Mr Huang said he would not return to Yunfu before August 2012.  Although Mr Huang verbally agreed to the adoption plan for HY, he said he was unable to come to Hong Kong to sign the Intention Form.  On the same day, ie 5 April 2012, a letter and a copy of the “Intention Form” was sent to Mr Huang by post by the Case Worker.  It is not clear to this court as to why this Intention Form was sent instead of the statutory general consent form, Form 4A.

27. As no reply was received for about 6 week from Mr Wong, Ms Tse, the Case Supervisor, then prepared an affidavit on 17 May 2012 for the Director to make an application to the court to seek the Dispensation Order and the Freeing Order.

28. Subsequent thereto, on 4 June 2012, the Case Worker did receive the Intention Form duly signed by Mr Huang[7], but the form was defective, since Mr Huang returned the form without crossing out either of the words “Agree/Disagree” to adoption and further Mr Huang did not sign the form before an attesting officer in Mainland China.  On 13 June 2012, the Case Worker successfully reached Mr Huang by telephone to enquire about his intention, and during the telephone conversation, Mr Huang indicated that he agreed to the adoption plan for HY and asked the Case Worker to cross out “Disagree” on the form on his behalf, which the Case Worker did[8].

29. Thereafter, the Case Worker, apparently under advice from the Department of Justice, tried to contact Mr Huang again requesting him to formally sign the statutory general consent form Form 4A under Rule 10 of the Adoption Rules either in Hong Kong or before an attesting officer in Mainland China.  The Case Worker eventually spoke to Mr Huang on 16 August 2012.  Mr Huang indicated that he would not be able to come to Hong Kong personally, but he agreed to sign the Form 4A in Mainland China with the assistance of ISS.

30. The Case Worker contacted ISS in early September 2012, but thereafter the ISS Worker was not able to contact Mr Huang, nor was the Case Worker.

31. It was not until about 6 months later 7 March 2013 that the Case Worker successfully contacted the Uncle by telephone, but the Uncle said he had lost contact with Mr Huang and asked not to be bothered any more.

32. Finally, the originating summons for the Dispensation Order and the Freeing Order was issued on 26 March 2013(“OS”).

33. The first hearing of the OS was fixed before this court on 26 June 2013 (“1^st Hearing”) and for reasons set out below, the 1^st Hearing was adjourned to 29 July 2013 (“2^nd Hearing”).  Shortly before the 2^nd Hearing, solicitors acting for Mother’s Choice sent a letter to the Director indicating the intention of Mother’s Choice to make HY and her two half siblings wards of court.  I then adjourned the 2^nd Hearing to the following day, namely 30 July 2013 (“3^rd Hearing”) for Mr Vidler, acting for Mother’s Choice, to come to court to assist the court.

34. Mr Vidler explained that Mother’s Choice was concerned over the delay over the proposed adoptions of HY and her half siblings and that further Mother’s Choice was of the view that the matters concerning all three children should be dealt with by the same wardship judge. In order to allow time for Mr Vidler to issue the wardship proceedings, the OS was adjourned to 9 August 2013 (“4^th Hearing”), and I indicated I would deal with the preliminary issues concerning service and the Dispensation Order first., after hearing submissions from Ms Chan of Department of Justice, acting for the Director.

Whether leave is required for service of the OS out of jurisdiction

35. On the same day of the issue of the OS, the Director issued an ex parte summons for service of the OS on Mr Huang to be dispensed with or effected by way of substituted service by sending it and the accompanying documents to Mr Huang at his last known address in Yunfu by ordinary post (“Ex Parte Summons”).

36. I granted a substituted service order on 12 April 2013 (“SS Order”)[9] by requiring the OS and the accompanying affidavits and relevant Chinese translations to be sent by registered post to Mr Haung’s last known address and also the Uncle’s construction materials company in Yunfu.

37. The Director had not sought leave to serve the OS out of jurisdiction prior to the issue of the Ex Parte Summons and this had also slipped my attention at the time.  I then raised this query at the 1^st Hearing.

38. Ms Chan, Government Counsel, appearing for the Director referred to Order 6 r 7 of RHC in her 1^st Supplemental Submissions on this issue. Order 6 r 7(1) states that no writ which is to be served out of the jurisdiction shall be issued without the leave of the court, subject to the proviso therein.  This rule applies to an originating summons under Order 7 rule 5 of RHC.

39. The types of cases in which leave of the court is required before the writ/originating summons may be issued is stated in paragraph 6/7/4 of the Hong Kong Civil Procedure 2013, Volume 1 (“White Book”). Item 1 therein refers to those cases listed under Order 11 rule 1(1).

40. Order 11 r 1 (1) states that provided that the writ is not a writ to which r 1(2) applies, service of the writ out of the jurisdiction is permissible with the leave of the court  in relief or claims listed under r 1(1).

41. Order 11 rule 1(2) states:

“Service of a writ out of the jurisdiction is permissible without the leave of the Court provided that each claim made by the writ is-

(b) a claim which by virtue of any written law the Court of First Instance has power to hear and determine notwithstanding that the person against whom the claim is made is not within the jurisdiction of the Court or that the wrongful act, neglect or default giving rise to the claim did not take place within its jurisdiction.”

42. Under Order 11 r 9, rule 1 shall apply to the service out of the jurisdiction of an originating summons.

43. During the 1^st Hearing, Ms Chan submitted that the claims in the OS would fall within Order 11 r 1(2). There were no authorities provided by Ms Chan at the 1^st Hearing in relation to whether leave was required to serve the OS out.  Although I indicated that it seems that no leave would be required, in case I was wrong, I gave leave that day for the OS to be served on Mr Huang outside jurisdiction.  I further adjourned the OS to the 2^nd Hearing for Ms Chan to carry out service outside jurisdiction, which had to be effected through judicial authorities of Mainland China pursuant to Order 11 rule 5A of RHC.

44. I was not referred during the 1^st Hearing to paragraph 11/1/35 of the White Book where a case was referred to, namely Re S (A Minor) (Wardship: Jurisdiction) [1992] HKLR 39.  In Re S, it was held that Order 11 rule 1 (2)(b) would allow service out of the jurisdiction in cases where legislation specifically provided for the court to deal with a claim even though the defendant was not within the jurisdiction of the court, and there being no such provision in Hong Kong legislation in relation to wardship proceedings, leave was required to serve the originating summons out of the jurisdiction.

45. The plaintiff ‘s solicitor in Re S had tried to argue that Order 11 rule 1(2) would apply to an originating summons issued in the wardship jurisdiction in that Order 90 rule 11(2) provided a connection of the wardship proceedings to “matrimonial proceedings” and section 19 (1) of the Matrimonial Proceedings and Property Ordinance provided for the court to make orders as to custody in relation to children in any proceedings for divorce etc and to direct that proper proceedings be taken for making a child ward of the court. She then tried to rely on rule 109 of the Matrimonial Causes Rules which provided for service of any document in matrimonial proceedings out of jurisdiction without leave. This argument was, however, not accepted by Barnett J.

46. Barnett J was further referred to section 26 of the Guardianship of Minors Ordinance -

“The jurisdiction conferred on any court by this Ordinance shall be exercisable notwithstanding that any party to the proceedings is not domiciled in Hong Kong.”

47. Notwithstanding the above section 26, Barnett J was of the view that domicile had a special meaning in law and was of particular importance where children were concerned, and that a person might be resident in and within the jurisdiction of Hong Kong although not domiciled here.  He concluded that the correct interpretation of Order 11 rule 1 (2)(b) would require legislation that specifically provided for the court to deal with a claim although the defendant was not within the jurisdiction of the court and that there being no such specific provision in the legislation in relation to the wardship jurisdiction, leave would be required to serve an originating summons in wardship proceedings out of the jurisdiction.

48. Barnett J had also referred to paragraph 21, page 1498 of Rayden and Jackson on Divorce (15^th Ed) Vol 1. The learned author/s of Rayden held the same view under the then Order 90 rule 3 of the Rules of the Supreme Court 1965 applicable in England, although no authorities were referred to in Rayden.

49. As set out in paragraph 90/3/1 of the White Book, the wardship jurisdiction of the High Court in Hong Kong goes back to ancient times and the court, and in exercising its jurisdiction, it is not limited to the dispute between the parties.  Its duty is to act in the way best suited in its judgment to serve the true interest and welfare of the ward.

50. It appears from the line of authorities in England[10], the court’s inherent jurisdiction on wardship and its power to hear and determine wardship proceedings is founded on whether the child to be made a ward has been habitually resident within the jurisdiction.  This is provided in case law.  In Hong Kong, the power of the Court of First Instance to make an infant a ward of court is set out in section 26 of the High Court Ordinance and the relevant rule is Order 90 of RHC.  I accept that it is not specifically stated in these provisions, notwithstanding the case law, as to whether the court has power to hear and determine any matter in wardship proceedings notwithstanding that the person against whom the claim is made is not within jurisdiction, unless that person is the ward, or that the wrongful act, neglect or default giving rise to the claim did not take place within its jurisdiction.

51. As for adoption proceedings, the statutory provisions in the Ordinance are somewhat different from those relating to wardship proceedings.  The power to make adoption orders is set out in section 4 of the Ordinance.  There are restrictions on making adoption orders under section 5 of the Ordinance, and, in particular, section 5(6) of the Ordinance sets out, subject to section 20C(5), an adoption order shall not be made in respect of any infant unless the applicant and the infant reside in Hong Kong.

52. Section 20C(5) relates to a Convention adoption order[11].  This section states that section 5(6) shall not apply in relation to any Convention adoption order, and that the court shall not make a Convention adoption order in respect of an infant unless -

“(a) (if Hong Kong acts as the receiving State) the applicant habitually resides in Hong Kong and the infant habitually resides in a Contracting State; or

 (b)  (if Hong Kong acts as the Sate of origin) the infant habitually resides in Hong Kong and the applicant habitually resides in a Contracting State.”

53. It is my reading and interpretation of sections 5 and 20C of the Ordinance that there is power for this court to hear and determine applications for adoption orders, notwithstanding that the parents of the infant to be adopted of whose consent to the adoption has to be obtained do not reside or are not within the jurisdiction, unless the parent is one of the proposed joint adopters, namely an applicant for the adoption order.  In my view, applications for adoption orders should fall within Order 11 rule 1(2) of RHC.

54. So far as the present applications for the Dispensation Order and the Freeing Order are concerned, these are sought under section 5A and section 6 of the Ordinance.  Such applications are to facilitate an adoption order to be made in respect of HY.  If the court has power to hear and determine an application for an adoption order for HY under sections 4, 5, and 20C(5) of the Ordinance irrespective whether her parents are within the jurisdiction or not, unless one of them is the proposed adopter, then this court should have power to hear and determine any application under sections 5A and 6 of the Ordinance.

55. I find support in my above view in that section 7(2) of the Ordinance provides for the admissibility of a document signifying consent to an adoption order of any person required under section 5 (5)(a), if such document is duly executed and attested by a Commission for Oaths, or if executed outside Hong Kong (emphasis added), by a person of any such class as may be prescribed. 

56. Having considered the above, I maintain my view, as orally indicated by me during the 1^st Hearing, that service out of jurisdiction for applications under sections 5A and 6 of the Ordinance are permissible without leave of the court under Order 11 rule 1 (2) of RHC.

57. In any event, as mentioned earlier, whether I am right on my above views or not, I have given leave to serve the OS out of jurisdiction during the 1^st Hearing.

58. I would only add that in England & Wales, the Family Procedure Rules 2010 have now specifically provided that all documents to be served for the purposes of those rules may be served out of jurisdiction without permission of the court[12]. This is perhaps a matter the Hong Kong Working Party on Family Procedure Rules should consider in its review of the rules in relation to Family Proceedings in Hong Kong.

Applicability of RHC

59. Order 1 rule 2(1) of RHC provides a table of proceedings to which the RHC shall not have effect and the table includes adoption proceedings.  Notwithstanding this exclusion, Order 1 rule 2(4) goes on to provide that nothing shall be taken as affecting any provision of any rules by virtue of which the RHC or any provisions thereof are applied in relation to any of those proceedings.

60. Rules for adoption proceedings have been made pursuant to section 12 of the Ordinance (“Rules”).  Rule 32 of the Rules provides that subject to the Rules, the practice and procedure of the District Court and of the Court of First Instance shall apply to proceedings under the Ordinance.

61. The only rule in the Rules which deals with service of documents is Rule 28, and Rule 28 (2) provides:

“Where a document is to be served on-

(a) An individual whose last known address or usual place of abode is in a place outside Hong Kong;

(b) A body of persons whose registered or principal office is in a place outside Hong Kong,

the document must be served in accordance with the law of that place.”

62. The Rules do not actually specify as to whether an application under sections 5A and/or section 6 is required to be served, nor does it specify the mode of such an application.  

63. In Hong Kong, an application for an adoption order, including a Convention adoption order, under the Ordinance is by way of an originating summons in a specified form[13].  The applicant in the originating summons is the proposed adopter and the respondent is the infant, or his/her guardian ad litem, which is the Director in usual cases.

64. The mode of application by a parent under section 5 (5D) of the Ordinance for an order revoking that parent’s consent has been specified in rule 14A of the Rules, and in particular, if no application for an adoption order is pending, is by originating summons which, as provided in rule 15A, shall be served by the Registrar of the High Court (emphasis added).  As the originating summons is a document required to be served under the Rules by the Registrar, Rule 28 of the Rules will thus apply.

65. For an application under sections 5A and/or 6 of the Ordinance, no mode of application has been provided in the Ordinance or the Rules.  The practice has always been to issue an originating summons for such application in the “expedited form”, which is also the procedure stated in PD 15.12[14]. There has been no provision in the Rules on any requirement of service of an originating summons for an application under sections 5A and 6, and it seems that Rule 28 may not apply.  One will thus have to fall back on the RHC in relation to service of the originating summons, and Order 11 rules 5 and 5A of RHC will apply to any service in Mainland China, irrespective of whether leave is required or not.

66. Order 11 rule 5 provides that subject to the provisions of that rule, Order 10 rule (1), (4) and (5) and (6) and Order 65 rule 4 shall apply to service out of jurisdiction, save that the accompanying form of acknowledgment of service shall be modified in such manner as my be appropriate.

67. The general methods available for effecting service out of jurisdiction under Order 11 rule 5 appear to be as follows:

“(i) Personal service (Order 10 rule 1(1));

(ii) Service on the defendant’s solicitor who must indorse on the writ/originating summons a statement that he accepts service on behalf of the defendant (Order 10, rule 1(4));

(iii) By acknowledgement of service, even if due service has not been effected (Order 10 rules 1(5));

  (iv)  Substituted service (Order 65 rule 4);”

68. It is noted that Order 10 rule 1(2) which provides for service by registered post or by inserting through letter box, instead of personal service, is not one of the methods for effecting service out of jurisdiction set out under Order 11 rule 5.

69. Instead, Order 11 rule 5(3) states that a writ or originating summons which is to be served out of the jurisdiction –

“(a) Need not be served personally on the person required to be served so long as it is served on him accordance with the law of the country or place in which service is effected; and

 (b)  Need not be served by the plaintiff or his agent if it is served by a method provided for by rule 5A, rule 6, or rule 7.”

70. Rule 5A provides for service in the Mainland China through judicial authorities. 

71. To conclude, it is my view that service of the OS should comply with Order 11 rules 5 and 5A of the RHC.

Whether leave should be given to dispense with re-application of substituted service of the OS

72. After leave was given for the OS to be served out of jurisdiction during the 1^st Hearing, on 5 July 2013, the Department of Justice lodged with the Registrar of the High Court of Hong Kong a letter of request together with the relevant court documents for service at the two last known addresses of Mr Huang in Yunfu in accordance with Order 11 Rule 5A of RHC.  Up until the 2^nd hearing, about 3 weeks later, the official certificate of service as required by Order 11 rule 5(5)(b) of RHC had not yet been received.

73. In her 2^nd Supplemental Submissions, Ms Chan asked the court to exercise discretion to direct that the substituted service earlier effected on Mr Huang under the SS Order to be deemed good, and that it would not be necessary to apply or to effect substituted service out of jurisdiction on Mr Huang again[15].

74. Ms Chan referred to Order 65 rule 4 of RHC under which the court has the discretionary power to order substituted service of the OS and other court documents if it is satisfied that it is impracticable for any reasons to serve those documents in the manner described in the RHC.

75. A substituted service order is possible for service outside jurisdiction, but, as set out in paragraph 65/4/8 of the White Book, it seems that it is only after efforts to effect service in the manner as prescribed by the RHC have failed, then it may be possible to apply for substituted service.  Ms Chan has no dispute on this.

76. In the present case, the SS Order in the present case was obtained prior to the order for service out of jurisdiction, or prior to the effect of service through judicial authorities of Mainland China.

77. It was Ms Chan’s submission that there was no need for her to re-apply for substituted service, if the service out of jurisdiction were to fail, and she then sought dispensation with service.

78. Ms Chan referred this court to the Court of Appeal decision in Bank of China (Hong Kong) Ltd and Regal Link Investment Ltd, CACV Nos 305, 306, and 307 of 2008. Although in that case, the Court of Appeal set aside the order for dispensation of service of the writs in the 3 actions against the 3^rd defendant, it recognized that the orders were within the lower court judge’s discretion[16].

79. The method of service specified in the SS Order was by registered post to Mr Huang’s two last known addresses in Mainland China.  This court had enquired Ms Chan whether she could provide any evidence that such service was in accordance with the laws of Mainland China, but so far Ms Chan had not provided the court with any such evidence.  Thus it is not clear whether the method of service in the SS Order complied with laws of Mainland China.  

80. As mentioned earlier, Ms Chan had already started the process of effecting service of the OS on Mr Huang through judicial authorities.  Although no official certificate of service had been received from the Mainland judicial authorities, up until the 3^rd Hearing, there was no evidence that such service had failed.  I therefore consider the Director’s application for further service to be dispensed with is premature, as it is not known at this stage as to whether the service by the Mainland China judicial authorities has failed or not.

81. There was further no proper summons taken out for dispensation of service.  Ms Chan tried to rely on the Ex Parte Summons issued earlier this year which contained an application for dispensation of service, and in the alternate, substituted service.  Upon the court granting the SS Order, that summons should have been dealt with. So far, there was no affirmation setting out the progress of the service through judicial authorities.  Anyway, this is only a technical matter, and in any event, in view of what I have said above, her application for dispensation of further service is premature. I will therefore adjourn this application sine die with liberty to restore, after the result of service through Mainland judicial authorities has been ascertained.

Service of notice of adjourned hearing

82. Ms Chan also drew the court’s attention to the case of Re C (Adoption: Consent) [2012] 1 HKLRD 308 where Poon J directed the Director to take the extra step of serving the notice of hearing on the mother in that case whose consent dispensation was sought, by way of substituted service by advertisement in newspapers although the mother was untraceable and service at her last known address would suffice in ordinary civil proceedings in view of the fact that the Judge was of the view that the relief sought in a freeing order application was a most serious invasion of parent rights.

83. In Re C, the substituted service of the Notice of Hearing ordered to be effected on the mother in that case was within jurisdiction.

84. Section 5A (3) of the Ordinance in fact states that it is mandatory for the Court to notify every person whose consent is to be dispensed with and who can be found (other than a person who is incapable of giving his consent) of the application under subsection (1) and give every such person an opportunity of being heard, before making an order under section 5A. Thus, it seems that the court has the duty to notify the person whose consent is to be dispensed with and who can be found.  Anyway, even though there is no particular provision for service of the notice of hearing in the Ordinance or the Rules, I am of the view that this court should have power to direct service of the notice of any resumed hearing, as Poon J did in Re C.

85. Order 11 seems only to apply to originating process.  Under Order 28 rule 3 of RHC, the Director would have to serve on Mr Huang the notice of the 1^st Hearing of the OS.  Then in relation to any adjourned hearing, under Order 28 rule 3(4), it seems only a party who desires to apply at the resumed hearing for any order or direction not previously asked for must then serve the notice of hearing in accordance with the rule.  Otherwise, there seems to be no other provision for service of the notice.

86. Order 65 rule 1(1) provides that any document which by virtue of those rules is required to be served on any person need not be served personally unless the document is one which by an express provision of the RHC or by order of the court is required to be so served, and further rule 1(1) shall not affect the power of the court under any provision of the RHC to dispense with the requirement for personal service.

87. Ms Chan did not refer me to any provisions in the RHC or the Rules in relation to service of the notice of hearing. Having considered all the relevant provisions that I can find, I will direct that such notices may be served by registered post to the 2 last known addresses of Mr Huang in the SS Order, unless the Mainland judicial authorities have managed to effect service on Mr Huang or locate Mr Huang at another address.

The Dispensation Order

88. Section 6 of the Ordinance provides that the court may dispense with any consent required under that section 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 any 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.

89. Section 5(5)(a) of the Ordinance provides that an adoption order shall not be made, subject to sections 5A and 6 –

“(a) In any case, but subject to section 20C(4), 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…”

90. The only definition of “parent” provided in the Ordinance is in relation to a child who is born out of wedlock[17], which 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, his father;”

91. It is set out in the Ordinance that “father”, in relation to an infant born out or wedlock, means the birth father[18].

92. There is also no definition of a “guardian” in the Ordinance.

93. In England, after the Children Act 1989 came into effect, the definition of “parent” was added in the Adoption Act 1976.  Further, the definition of “guardian” in the Adoption Act 1976 was amended to have the same meaning as in the Children Act 1989.  A “parent” in the Adoption Act 1976 means, in relation to a child, any parent who has parental responsibility for the child under the Children Act 1989, and “parental responsibility” and “parental responsibility agreement” have the same meaning as in the Children Act 1989.[19]

94. The amendments in England in the Adoption Act 1976 came into effect on 14 October 1991[20].  There are no equivalent provisions in our legislation to those definitions of “parent” or “guardian” in the Adoption Act 1976.  There is also no equivalent in Hong Kong of the Children Act 1969.

95. In 1992, the Court of Appeal in England had to consider the meaning of “parent” in the Children Act 1989 and also the effect of a freeing order in the case of M v C and Calderdale Metropolitan Borough Council [1993] 1 FLR 505.

96. The main issue in M v C was whether “parent” in the Children Act 1989 could include a natural parent whose child had been freed for adoption, and whether the unmarried father in that case could make an application of residence order under the Children Act 1989 without leave, after the freeing order.  Bulter-Sloss LJ gave the leading judgment in which she considered the meaning of “parent” and the effect of a freeing order.

97. Although our legislations are quite different, and M v C was not really in relation to the meaning of “parent” in the context of consent to an adoption order or freeing order in the Adoption Act 1976, I find certain comments of Bulter-Sloss LJ helpful in considering how to interpret “parent” in section 5 (5)(a) of the Ordinance.  In particular Bulter-Sloss LJ said:

“The term ‘parent’ must be given its natural and ordinary meaning. It does not follow, however, that that meaning will always include the natural parents. The natural and ordinary meaning of a word is not fixed, but changes according to the context in which a word is used.”[21]

98. Bulter-Sloss LJ had also said that the effect of a freeing order was to deprive the natural parents (emphasis added) of parental responsibility in the same way as after an adoption[22].  It thus appears from what Bulter-Sloss LJ said, the parents of whose consent to an adoption order, or a freeing order, are required, are biological/natural parents.

99. In Hong Kong, the effect of an adoption in Hong Kong was referred to in the judgment of the then Keith J in the case of Xie Xiaoyi (An Infant) v Director of Immigration [1999] 3 HKC 148.  That case was in fact in relation to the right of abode in Hong Kong of 4 children born outside Hong Kong and adopted by Hong Kong permanent residents and in relation to the interpretation of article 24 of the Basic Law of Hong Kong and the Immigration (Amendment) (No 2) Ordinance 1997.

100. It was said by Keith J in the First Instance judgment that what was intended by section 13 of the Adoption Ordinance was the severance of the legal relationship between the child and his/or her natural parents (emphasis added), and the creation of a new legal relationship between the child and his or her adoptive parents.  That case subsequently went on appeal all the way to the Court of Final Appeal and is now known as Tam Nga Yin & Others v The Director of Immigration[23].  The effect of an adoption order under the Ordinance in that case was common ground and was set out by the Court of Final Appeal to be-

“(2) The effect of such an order under the Ordinance is as follows:

“… the rights and obligations of the true parents in relation to the infant are extinguished and the adopted child stands in relation to the adopter exclusively in the position of a child born to the adopter in wedlock … The family ties with the true parents are cut completely and for ever; the adopting parents stand for all purposes in the position of the true parents.”

See J v. C [1970] AC 668 at 719 D-F and sec. 13 of the Adoption Ordinance. It is accepted by the parties that this statement, which relates to the English Adoption Act 1958, applies notwithstanding whatever differences there may be between that Act and the Ordinance”[24].

101. The present definition of “parent” in the Ordinance seems to have been amended in 2004, after the above case, but this should not affect the effect of an adoption order.  Further, paragraph 10.191 of the “Family Law and Practice in Hong Kong” (2011) refers to paragraph 5 of the Ordinance containing the requirements and procedure for the giving of consent by the birth parents (emphasis added).

102. Ms Chan did not refer this court to any case law on the meaning of "parent" in the context of section 5(5)(a) of the Ordinance.

103. As HY was born within the wedlock of the Mother and Mr Huang, Ms Chan relied on section 5 of the Parent and Child Ordinance Cap 429, to say Mr Huang was presumed to be the father of HY and therefore his consent would be necessary.  Section 5 of the Parent and Child Ordinance states:

“(1) A man shall be presumed to be the father of a child-

(a) if he was married to the mother of the child at any time and if there arises by virtue of that marriage a presumption of law that the child is the legitimate child of that man; or

(b) where no man is presumed to be the father under paragraph (a), and subject to section 10(3), if he has been registered as the father of the child by an entry made after the commencement of this section in any register of births kept by the Registrar of Births and Deaths under any Ordinance.

(2) Any presumption under subsection (1) may be rebutted by proof on a balance of probabilities.

(3) The presumption of law as to a child's legitimacy arising by virtue of the marriage of the child's mother at a time related to the conception or birth of the child may be rebutted by proof on a balance of probabilities.

(4)   Subsection (1)(a), and the presumption referred to in subsection (3), shall apply in the case of a void or voidable marriage as they apply in the case of a valid marriage.”

104. As said by Bulter-Sloss LJ in M v C, the term “parent” may mean different things in different context.  I am of the view that the above definition of “parent” should only be in the context of the Parent and Child Ordinance.  If one looks at the Guardianship of Minors Ordinance, “parent” therein means simply father or mother.

105. In any event, the presumption in section 5 of the Parent and Child Ordinance is rebuttable on a balance of probabilities.  P Chan J, as he then was, said in the case of Kwan Chui Kwok & Anor v Tso Wai Chun & Ors[25], that although in that case, there was no scientific evidence or evidence from the parents, the question of whether a person was the lawful and natural child of his parents was by means an easy one, and it must be approached from a common sense point of view, having regard to the evidence available and all the relevant circumstances in the light of the so called presumption of legitimacy[26].  In his view, the starting point in such a case must be the conduct of the parents.  He had also said that the father's knowledge would have to depend largely on the mother[27]. Chan PJ was in that case considering the common law principle of presumption of legitimacy, which I understand was the basis from which section 5 of the Parent and Child Ordinance originated.

106. In the present case, I understand that the Mother had told the Case Worker that she had lost contact with the biological father of HY since November 2005 and that Mr Huang was not the biological father of HY.  It seems that this was the understanding of the Case Worker and also the ISS Worker. There was no affirmation/statutory declaration from the Mother placed before the court, but when this was  put to Mr Huang by the ISS Worker, Mr Huang did not deny that he had no blood relationship with HY[28].

107. According to what Mr Huang told the ISS Worker, he only met the Mother in late 2005[29]. Mr Huang’s evidence in his affirmation filed in the Family Court Proceedings had shed some light. Mr Huang said in his affirmation that after marriage, he and the Mother had cohabited briefly at his home in Yunfu where the marriage was consummated (完 婚)[30].  It thus seems from Mr Huang’s own evidence that the marriage was consummated in Yunfu after the marriage, ie after 21 January 2006.  HY was born in August 2006.  There was no evidence that she was a premature baby.

108. In the circumstances, it would appear from all the evidence so far available before the court that the presumption in section 5 of the Parent and Child Ordinance could be rebutted. Anyway, in my view, Mr Huang would not fall within the meaning of “parent” in section 5 (5)(a) of the Ordinance if he is not the biological father of HY.

109. There was no submission from Ms Chan that Mr Huang was a guardian within the meaning of the Guardianship of Minors Ordinance, or that he would fall within the meaning of “guardian” in section 5 (5)(a).

110. There was also no evidence that HY was ever treated by Mr Huang as a “child of the family” within the meaning of the Matrimonial Causes Rules or the Matrimonial Proceedings and Property Ordinance, since Mr Huang never lived with HY and the Mother as a family.  Even though Mr Huang had agreed to maintain HY at one stage and indeed paid some sums for the benefit of HY at the time of the Family Court Proceedings, by his conduct in discontinuing the Family Court Proceedings and not contributing any maintenance for HY since, Mr Huang had clearly withdrawn his agreement to contribute to the maintenance of HY.  There had been no order made in the Family Court Proceedings in relation to any maintenance for HY against Mr Huang, nor did the Director seek such an order in the Family Court Proceedings. Mr Huang did not appear to fall within “a person who is liable by virtue of any order or agreement to contribute to the maintenance of the infant” in section 5 (5)(a).

111. Having said the above, since the OS is now in the process of being served on Mr Huang through Mainland judicial authorities, there is a possibility that Mr Huang can be found and properly served, and that he may wish to contest the application for the Dispensation Order.  I therefore will not make any final order until the result of service is known.

112. If the presumption that Mr Huang is the father were to be rebutted, this will result in HY being born out of wedlock of a relationship between her real biological father and the Mother.  This then seems to raise the question of whether the biological father of HY can be found, and if found, to fall within the definition of “parent” in the Ordinance, the biological father will need to first obtain an order from the court under section 3(1)(d) of the Guardianship of Minors Ordinance, to exercise any right or authority in relation to HY, before the court can consider whether his consent to the Freeing Order, or adoption order should be sought or dispensed with.

113. I am of the view that greater efforts should have been made to find out the identity and whereabouts of the biological father of HY, as he may not even know of HY’s existence, and to give him an opportunity to decide whether to make an application under the Guardianship of Minors Ordinance. There was no application to dispense with the consent of HY’s biological father to the Freeing Order or any adoption order.

114. Ms Chan has claimed there is urgency in the matter, but there had been already long delay in bringing the matter to the attention of this court.  I can only say that I am somewhat relieved that in the meantime, HY has been well taken care of by the Foster Parents who have indicated their willingness to continue to care for HY until she is 18.  The Foster Parents have even taken HY together with them on holiday and HY has developed a close relationship with them.

115. HY had expressed strong views when she was returned to Hong Kong by the Uncle on 24 December 2010, and clearly by then, she had already established a close relationship with the Foster Parents.  She is now almost 7 years old, and I believe HY’s own views and wishes on the Freeing Order should be ascertained.  The Foster Parents may also have their own views.  None of these were canvassed or were placed before this court.  Ms Chan took the view that there are no statutry requirements for the Director to do so.  It is not mandatory for this court to grant the Freeing Order under section 5A of the Ordinance, even if I were to grant the Dispensation Order. Ms Chan has now accepted that the court has a discretion in granting the Freeing Order.  I am of the view, that in exercising this discretion, I have to be satisfied that it is in HY’s welfare and best interest to do so.  Section 8(1)(b) of the Ordinance provides clearly that before making any adoption order, the court shall be satisfied that the order if made will be in the best interests of the infant, due consideration being for this purpose given to the wishes and opinions of the infant, having regard to the age and understanding of the infant.  I have also said earlier the Freeing Order is to facilitate and to lead to an adoption order, and therefore I do not understand why the Director would want to object to ascertaining HY's wishes and the Foster Parents’ views at this stage.  At this moment, subject to further information being provided, I am not convinced that it is in HY’s best interests to remove her from the care of the Foster Parents.

116. Until Mother’s Choice and its solicitors came into the picture, this court was not aware that after the birth of HY, the Mother has given birth to 2 other children, who are HY’s siblings/half siblings and their cases are also being handled by the Director.  HY also has an older sibling/half sibling.  I further understand that Mother’s Choice would like to apply for HY and her 2 young siblings to become wards of court.

117. I therefore await further information from the Director, before making any final Dispensation Order, or considering the application for the Freeing Order in respect of HY.

118. I will reserve the question of costs.