DIRECTOR OF SOCIAL WELFARE v. LYS AND ANOTHER

HCAD 14/2021

[2022] HKCFI 1266

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 14 of 2021

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J U D G M E N T

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A. BACKGROUND

1.  This is an application by the Director of Social Welfare (“the Director”) for an order (i) declaring that any presumption that the 2^nd Defendant is the father of XXXXXXXXXX (“TCKI”) is rebutted; (ii) declaring TCKI free for adoption and (iii) dispensing with the 1^st and 2^nd Defendants’ consent to the making of an adoption order.

2.  TCKI is one of 4 surviving children born to the 1^st Defendant (“Mother”). The 2^nd Defendant (“T”) was a former cohabitee of the Mother at the time TCKI was born.

3.  TCKI was born on XXXXXXX 2014 out of the cohabitation of the Mother and the Putative Father and had been taken care of by them for about 4 months after his birth.

4.  When TCKI was 5 months old, he was found to be under weight and suspected of suffering from shaking baby syndrome. Multi-disciplinary case conference on protection of child was convened on XXXX 2015 and TCKI’s case is found to be one of child neglect. TCKI has put to a children’s home and then to foster parents.

5.  Due to the Mother’s inability to take care of TCKI, the Director was appointed legal guardian of TCKI on 21 April 2020.

6.  TCKI suffered from developmental delays with weight, dental and speech problems. The Mother did not pay him regular visits, lost his birth certificate, did not settle expenses of the foster home and refused to accept dental surgery for TCKI. The maternal grandmother was nominated to manage TCKI’s comprehensive social security assistance (“CSSA”).

7.  On 4 November 2021, the Director made this application by originating summons on the grounds that the Mother has abandoned and/or neglected TCKI, has unreasonably withheld her consent to the making of an adoption order and that in all the circumstances of this case, the Mother’s consent ought to be dispensed with.

8.  The originating summons and affirmations have been served on the Mother and T. T has not responded or appeared at this hearing.

9.  Together with this originating summons, there is another similar application by originating summons in HCAD 13/2021 to deal with TCKI ‘s younger brother (“LTH”). TCKI and LTH will be collectively referred to as “the Infants”.

B.  LEGAL PRINCIPLES

10.  Under section 5(5)(a) of the Adoption Ordinance, Cap 290 (“the Ordinance”), an adoption order shall not be made without the consent of every person who is a parent of TCKI.

11.  However, the court may make an order declaring an infant free for adoption if it is satisfied that:

(i)  The parent has “abandoned, neglected or persistently ill-treated LTH;

(ii)  The parent cannot be found or that his consent is unreasonably withheld; or

(iii)  The parent’s consent ought, in all the circumstances of the case, to be dispensed with.

See sections 5A(1) and (2) and 6(1) of the Ordinance.

12.  In Re C (Adoption: Consent) [2012] 1 HKLRD 308, §§25 and 26, Poon J (as he then was) explained the meaning of “abandonment” and “neglect”:

“25. Abandonment is a morally reprehensible desertion of the child. When a parent abandons his child, he is disregarding his parental duty completely. He simply gives up the child and has left it to its fate. …

26. Neglect involves a very serious dereliction of parental responsibility. When a parent neglects a child, he fails to make adequate arrangements for the care and nurturing of the child, such as the provision of adequate and proper food, nursing, clothing, medical aid, accommodation, education or other special needs of the child.”

13.  Section 2 defines “parent”, in relation to a child who is born out of wedlock, to mean (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.

14.  Under section 5 of the Parent and Child Ordinance (Cap 429) (“PCO”), a man shall be presumed to be the father of a child 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. Such presumption may be rebutted by proof on a balance of probabilities.

15.  In Director of Social Welfare v YKK [2021] 4 HKLRD 30, B Chu J adopted a two-stage process in this type of application:

(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?

16.  The Court shall have regard to the Adoption Checklist when considering whether adoption is in the best interest of the children: DSW v YPC [2020] HKCFI 2290, §§69-75, B Chu J.

C.  THE PARENTS OF TCKI

17.  There can be no dispute that the Mother is the birth mother of TCKI (and LTH).

18.  The Mother has had courtship with several men in the past and has given birth to 5 children. TCKI is the 3^rd one:

Name	Sex & Age	Current condition	Remarks
XXXXXX (XXXX)	F/13	F.2 student	CSSA recipient, cared by maternal grandmother since birth
XXXXXX XX(XXXX)	M/10	P.4 student	CSSA recipient, cared by maternal grandmother since birth
TCKI (subject infant)	M/7	Primary 2 student	CSSA recipient, cared by foster parents since 2017
Unnamed	F/23 days	Deceased	Passed away on 25.12.2015
LTH	M/3	K1 and a subject of a concurrent freeing order application	CSSA recipient, cared by foster parents since 2020

19.  Based on information from the Immigration Department dated 20 March 2020, the Mother has a record of 2 marriages, (i) married on 29 January 2008 but divorced on 24 July 2014; and (ii) married on 18 January 2018 to another man whilst cohabiting with T and pregnant with LTH. The Mother has not contacted or met the second husband after their marriage.

20.  Based on information from the Mother, the biological father of TCKI could not be reached. She had cohabited with T from August 2014 and separated from him in November 2018. She moved back to live with the maternal grandmother and the 2 elder children from December 2017 to August 2018 when she was pregnant with LTH. She later moved from place to place and have been incarcerated from time to time for transgressing the law, until she is now imprisoned for a drug-related offence.

21.  T’s name appears on the birth certificate of TCKI. However, both the Mother and T stated that T is not the biological father of TCKI.

22.  T is aged 48. He was born and brought up in Hong Kong. He used to be a hairdresser. He claimed to have divorced in 2005, remarried in 2008 but lost contact with his wife since 2011. He has been in trouble with the law and has been imprisoned for drug-related offences.

23.  T had been interviewed by the social worker in December 2018 and April 2019 for discussing the welfare plan of TCKI. He alleged that he wished to claim for guardianship of TCKI (although he is not the biological father). According to the social worker’s check with the Correctional Services Department, T has subsequently been serving imprisonment. (As a sidenote, T also wants to seek guardianship of LTH, of whom T is the putative father.)

24.  To date, T has never applied, under section 3(1)(d) of GMO, for a court order to give him any right or authority over TCKI (or LTH). He does not fall within the definition of parent under section 2 of the Ordinance and, hence, not a person whose consent to free the Infants for adoption is required.

25.  As T is not the biological father or husband of the Mother, there is no presumption of fatherhood that applies to him.

D.  STAGE 1: IS ADOPTION IN THE BEST INTEREST OF THE CHILDREN?

D(1).  People who may be able to take care of the Infants

26.  TCKI and LTH have not been under the care of the birth parents since birth (except for 4 months in relation to TCKI).

27.  The maternal grandmother, aged 69, is already taking care of the 2 eldest children of the Mother. Although the maternal grandmother loves TCKI and LTH, she has expressed inability to take care of 2 more grandchildren, which was understandable having regard to her age. She expressed no view on the long-term welfare and adoption plans of TCKI and LTH. When she visited the Mother in prison, she would share with the Mother the happenings of the children. The Mother has not asked the maternal grandmother for help on taking care of TCKI and LTH.

28.  According to T, the paternal grandparents have passed away.

29.  There is thus no relative who can take care of TCKI and LTH.

30.  TCKI’s foster parents are currently aged 71 and 65 respectively. They support the present application and have expressed no intention of taking care of TCKI until he turns 18.

31.  The foster parents have been consulted. LTH’s foster parents are currently aged 74 and 68 respectively. They support the application in relation to LTH and have expressed no intention of taking care of LTH until he turns 18.

32.  A permanent home with an adoptive family can provide lifelong support for the Infants, whereas foster care cannot and will cease when each Infant reaches the age of 18 or when the foster parents become unavailable. Given the current high demand for out-of-home care service, a change of foster home may not be available. Foster parents cannot, without disrespect, be compared to adoptive parents who will assume rights and obligations over the adopted child.

D(2). Views of TCKI and siblings towards freeing LTH and TCKI from adoption

33.  This is a special case where an adoption order will potentially break up the relationship among the 4 siblings. This Court therefore took the initiative of ordering further investigation of the understanding, affection, frequency of contacts among the siblings, their views towards separate and joint adoption of LTH and TCKI and other relevant information. The Court was concerned to know if the 4 siblings have met regularly and what the views of the 2 elder siblings were towards the applications regarding LTH and TCKI. For that purpose, a further social investigation report (“SIR”) has been prepared.

34.  With regard to LTH, he is aged less than 4 and has no memory of his parents because of their rare contact. He is unable to comprehend the idea of adoption. However, he can be easily attached to loving caregivers. He is cheerful and gentle, likes going to school and can comply with school routine. He has adapted well to foster environment.

35.  A special arrangement was made for the 4 siblings to meet on the first birthday of LTH on 20 August 2019, with the assistance of the maternal grandmother and the foster mother of TCKI. TCKI was happy to meet his baby brother whilst LTH cried on seeing strangers. They met again at LTH’s medical appointment on 30 August 2019.

36.  No family visit was arranged due to onset of COVID-19. After LTH was admitted to foster home in September 2020, the maternal grandmother and the 2 elder siblings have had no strong desire to meet him because of the studies of the 2 elder siblings and the pandemic.

37.  LTH’s relationship with his siblings is plainly distant.

38.  With regard to TCKI, he had been taken care of by the Mother and T for 4 months after birth at the latter’s abode.

39.  TCKI has had more contacts with the maternal grandmother and 2 siblings than with LTH. Whilst residing at a children residential home, TCKI had had day leave at the maternal grandmother’s home for 7 times between 2015 and 2016. Overnight leave was arranged at the maternal grandmother’s home for 17 times between 2015 and 2016. That gave TCKI contacts with the maternal grandmother and his 2 elder siblings. Unfortunately, the 2 elder siblings have no recollection of those contacts with TCKI.

40.  After TCKI was admitted to foster home in December 2017, no overnight home leave was arranged because the Mother was pregnant with LTH and her drug status could not be verified. It was on 14 August 2018 that the Mother, T, the maternal grandmother and the 2 elder siblings met TCKI with his foster parents. TCKI remembered the gathering and was happy to meet his parents and the 2 elder siblings at that time.

41.  With the help of the social worker, Ms Kwok, TCKI had been able to meet his maternal grandmother and 2 elder siblings since 22 December 2018 at the office of Ms Kwok for 2-3 hours each time. The Mother only appeared once on 7 December 2019. Home leave at the maternal grandmother’s accommodation was arranged twice in 2019. There were another 7 family gatherings in 2021 with TCKI, the 2 elder siblings and the maternal grandmother. Unfortunately, home leave ceased when the maternal grandmother found it difficult to take care of 3 grandchildren and manage the conflicts among the 3 siblings.

42.  For the purpose of preparing a further SIR, Ms Kwok has arranged 2 gatherings for the 4 siblings on 15 and 22 January 2022. The sister did not attend the first.

43.  Ms Kwok reported that TCKI has harmonious relationship with his siblings but they are not close. He has no objection to living with LTH as companions in the adoptive home. He has no strong views towards joint or separate adoption with LTH but would miss LTH if they live apart. Apparently TCKI has stronger feelings towards his foster parents and their son, than towards his 3 other siblings and the maternal grandmother. TCKI would try to talk to his siblings and maternal grandmother by video calls so as to introduce his adoptive family to them. Throughout, TCKI has not mentioned his birth parents to Ms Kwok.

44.  TCKI has been subject to assessment by a clinical psychologist. The clinical psychologist finds him to be a cheerful and curious boy who has good and secure attachment to the foster parents. He expressed his willingness to be adopted although at his age he may not fully understand the concept of permanency in adoption. The clinical psychologist found that it was unlikely that being adopted or separated from the foster family would do psychological harm to TCKI.

45.  The 2 elder siblings have learnt something about TCKI during the 2 sessions, but they did not have much knowledge about LTH. They have been informed of the adoption plan and root-tracing service for TCKI and LTH.

46.  The 2 elder siblings expressed that:

(1)  They did not want to free TCKI and LTH for adoption because they worried about not being able to meet them thereafter if they are to go abroad.

(2)  Though they would miss TCKI and LTH, the 2 elder siblings have not considered residing with them.

(3)  The Mother would not take up child care responsibilities and would leave such duties to the maternal grandmother who would be too exhausted to take care of more grandchildren.

(4)  They understood that the foster parents of TCKI and LTH were getting old and might not be able to take care of them in the long run.

(5)  They have no strong desire to live with TCKI and LTH.

47.  On second thought, the 2 elder siblings accepted adoption as an option for TCKI and LTH so that they could receive better care in a permanent home and that would be in the 2 infants’ best interests. They hoped that the siblings could meet a few times a year to keep their bonding. They are aware that TCKI and LTH have the right to root-tracing when they reach the age of 18.

48.  The 2 elder siblings have not met the Mother for over 2 years because they were reluctant to meet her in prison. They do not welcome her home upon release from prison. The daughter is worried that the Mother would disrupt their daily routine.

49.  The views of 2 eldest children and TCKI have been obtained through discussion and they have expressed their preference and concerns to Ms Kwok under an informed situation. Given their respective age, the Court gives great weight to the views of the 3 children.

50.  It is clear from the further SIR that although the siblings want to maintain a continuous relationship, they are not close. The understanding between the 2 eldest children on the one hand, and TCKI/LTH on the other is superficial.

51.  Applying the Adoption Checklist, I consider the most important factor in this case to be the ascertainable wishes and feelings of each sibling regarding this application. Siblings’ relationship is valuable to any child and it should be maintained and promoted as far as possible.

52.  The 3 eldest children have been taking the opportunity to meet over the years. Disputes among them such that even the maternal grandmother was not able to handle them is not unusual, not even in harmonious families. Although their relationship cannot be said to be close, I accept that they would miss one another if adoption is to proceed, particularly if it is overseas. TCKI would miss LTH if they cannot be adopted together.

53.  However, TCKI and LTH have shown no affection for their birth parents. There is also little chance of the siblings living under the same roof even if TCKI and LTH are not freed for adoption. The risk of TCKI and LTH suffering from damage to their identity as part of one family upon ceasing to be a member of the original family is low.

54.  On the other hand, having the love and stable care of adoptive parents is of far greater value to TCKI and LTH than siblings meeting a few times per year. With the facilitation by social workers and the 3 eldest siblings having been informed of the right of root chasing, there is a chance that the 3 eldest siblings may be mature enough one day to search out one another and continue/resume their relationship.

55.  Considering the matters in Section D, I am of the view that adoption is in the best interests of TCKI and LTH.

E.  GROUNDS FOR DISPENSING WITH CONSENT

E1.  Abandonment and neglect

56.  The Mother is currently aged 39. She was born and brought up in Hong Kong. She completed Form 5 in 2000 and then worked intermittently as a waitress in different restaurants. She has relied on CSSA from 2015 to 2020. The Mother has started to receive out-patient psychiatric treatment for depression, with history of drug abuse in 2016 after the sudden death of the 4^th child. She had defaulted in attendance after October 2018 but resumed treatment when she was detained at the Tai Lam Centre for Women.

57.  The Mother has records of imprisonment for drug and theft offences from 2011 to 2017. She is now detained for a drug-related offence to which she has pleaded guilty. She is likely to be sentenced on XXXX 2022. She has received legal advice that she might be sentenced to 4 years’ imprisonment and is likely to be released in XXX 2022.

58.  The Mother has never provided financial support to and has been absent from meetings concerning the Infants. She had no gainful employment and no stable accommodation. She has never been involved in the Infants’ schooling, health issue and other welfare matters. She has never put forward any concrete long-term childcare plan. The Infants were left to their fate.

59.  After TCKI was admitted to foster home care, the Mother only met him for 5 times between 2018 and 2019; whereas she has only met LTH for 3 times in 2019, the last being on 10 December 2019.

60.  The Mother has not turned up for scheduled meetings. She has totally disregarded her parental duties over her children. Being in trouble with the law herself, the Mother simply has failed to care about LTH and TCKI’s conditions, not to mention making arrangements for their food, nursing, clothing, accommodation, education or the like.

61.  From the mouth of the 2 eldest children, the Mother has never taken care of them either.

62.  Owing to the irresponsible attitude of the Mother, her 4 children have to live at 3 different homes – the 2 eldest at the maternal grandmother’s home, TCKI and LTH at 2 different foster homes. The Mother has paid no regard to her children’s welfare.

63.  I find that the Mother has abandoned and neglected the Infants.

E(2).  Consent unreasonably withheld

64.  The Mother’s attitude towards adoption is ambivalent. Attempts to discuss the welfare plan of LTH and TCKI with her have repeatedly been made by the social workers for years and yet the Mother was usually absent from the case review meetings. She has failed to turn up at all court hearings when care and protection orders were sought for each Infant.

65.  The Mother has also failed to turn up at the monthly meetings with LTH and other siblings to cultivate parent and child relationship from December 2018 to January 2020.

66.  And yet, at the 2 court hearings before me, the Mother has expressed that she wants to take care of the Infants herself. She wants to “compensate” them, because she owes them a lot, especially LTH. She is aware of their right of root-tracing, that the out-of-home care arrangement may change and foster arrangements may change.

67.  The Mother has never taken care of LTH and only taken care of TCKI for 4 months after TCKI’s birth. Her visits to the Infants in the past were not of such a quality as to have left an impression in their minds.

68.  Whilst imprisoned, the maternal grandmother kept visiting the Mother until prevented by constraints imposed by the Correctional Services Department during the pandemic. It appears that the Mother has undergone some change in attitude. On the advice of the maternal grandmother, the Mother has written some letters to the 2 eldest children. The Mother also accepted the maternal grandmother’s advice that hostel service would be beneficial to her upon her release from prison.

69.  During a visit by Ms Kwok at the Correctional Institution on XXXXXXXXX 2022, the Mother expressed to Ms Kwok that:

(1)  She has been imprisoned for 2 years and would not abuse drugs in future. She missed TCKI and LTH and wanted to meet them soon.

(2)  She anticipated that she might be released from prison in about July 2022. She would reside in a hostel for ex-prisoners and find a job as a waitress before resuming care of the 2 infants. She expected to save up a few ten thousand dollars and to meet the Infants weekly. If she could not find a job, she would re-apply for CSSA. She would not bother the maternal grandmother but would seek assistance from others, like the social worker and T.

(3)  She hoped to reunite with T and ask about his wish on the care of the 2 Infants. If he is out of trace, she would give up the reconciliation plan with him.

67.  The Mother thus appears to have thought about the issue of taking care of the Infants lately. However, her accommodation at a hostel is not fit for taking care of them. Her employability and income are uncertain. It is not certain how much longer LTH and TCKI have to wait before they can live with the Mother in the same household.

68.  Even if she can physically accommodate LTH and TCKI, it is not clear what plans the Mother have towards taking care of, eg the Infants’ education, emotions, and issues on upbringing generally. She told Ms Kwok that she deemed a stable home with three meals to be adequate for the Infants. The task of going to the market, cooking, laundry, etc have in the past been handled by the maternal grandmother and foster parents. With respect to the Mother, her concept of care of the Infants comes too late and is far too inadequate.

69.  All in all, there is no realistic chance of her setting up a stable and meaningful family environment for the Infants in the near future. She herself needs time to rehabilitate and survive in the society.

70.  Meanwhile, COVID-19 across the world has seriously affected the chances of adoption in Hong Kong and overseas. It is difficult to get adoptive parents even for a single child, more so if LTH and TCKI are to be adopted together. The longer the delay in seeking adoptive parents, the greater the difficulty will be. The Infants will be prejudiced in the sense of being deprived the chance of having the love and care from adoptive parents.

71.  The Court is of course mindful of the fact that a mother should be given all the chances she wants to be a mother, especially if she is ready to turn a new leaf. However, taking into account the long period of lack of care, the uncertainty over child care arrangements for the Infants in the near future, the greater risk of not finding suitable adoptive parents as time goes by, I find that it is unreasonable for the Mother to withhold her consent to freeing the Infants for adoption. It is in all the circumstances reasonable to dispense with her consent.

F.  OVERALL BALANCING EXERCISE

72.  In my view, placing TCKI and LTH in a stable family/families and having them taken care of by adoptive parents is in their best interests. In the circumstances of this case, the benefits of adoption override the desirability of maintaining sibling relationship that is not close.

73.  It would of course be best to have TCKI and LTH adopted by the same family in Hong Kong so that they can continue to contact the 2 eldest siblings. However, the Court is aware of the difficulty of matching adoptive parents for TCKI and LTH, especially in the light of COVID-19. Having regard to the good sense in which the Director/Ms Kwok has dealt with these siblings, I have confidence that the Director/Ms Kwok will do their best to match each or both children to the best adoptive family and it is not appropriate for the Court to impose any condition on the adoption.

G.  ORDER

74.  Having regard to the above analyses, I order as follows:

(1)  I make an order that the 1^st and 2^nd Respondent’s consent to freeing TCKI for adoption as required by section 5(5)(a) of the Adoption Ordinance, Cap 290, be dispensed with.

(2)  That TCKI be freed for adoption.

(3)  That there be no order as to costs of this application.

75.  I thank Mr Chan and Ms Christine Wong for their assistance.

76.  I also express my sincere gratitude to Ms Frida Kwok for the great job done in facilitating the bonding of the 4 siblings and the time spent to ascertain the views of the siblings and the persons who could give relevant views to this application. I also wish to thank the foster parents of the 2 Infants and the maternal grandmother in making efforts to enable the siblings to meet. I hope the attitude of the maternal grandmother and foster parents will touch the Mother and inspire her on what sacrifice and efforts it takes to become a good mother.