G, by his next friend CHAN LUI LUNA v. BVR AND OTHERS

HCMP 1803/2014

[2020] HKCFI 1886

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1803 OF 2014

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R E A S O N S   F O R   D E C I S I O N

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Introduction

1.  After a 5 day trial in January 2018 on the Mother’s application to deward G, this Court handed down a judgment in April 2018 and dismissed her application and G has remained a ward of this court (“Judgment”). G is now 11 years old and he has been a ward since 2 September 2014 when he was 5 years old.  The Mother’s subsequent appeal to the Court of Appeal was dismissed on 13 May 2020

2.  The background of this matter has been set out in the Judgment and other previous decisions of this Court.  I shall adopt the previous abbreviations unless otherwise stated herein.

3.  Before this Court was a summons issued by Mr and Mrs K on 20 December 2019 (“Summons”) for 6 reliefs, among which the present relevant ones were (i) leave for them to intervene as parties in these proceedings (“Relief (1)”) and (ii) leave for them under s 23A of the Adoption Ordinance, Cap 290 (“AO”) to make arrangements for the placement for adoption of the ward G by them (“Relief (4)”).  Relief (4) was amended at the substantive hearing for the words “for the placement” to be deleted.

4.  The Summons was initially fixed for a hearing on 18 February 2020 but was adjourned due to GAP[1].  It was re-fixed to 16 April 2020 which took place notwithstanding the continuation of GAP, since this Court took the view that it was a wardship matter which concerned welfare of a child and would fall into the category of “urgent or essential business”.

5.  The Mother is now acting in person.  She turned up at the hearing for directions and indicated that she would oppose the Summons.  She was strongly advised to apply for legal aid and I understand that both the proposed interveners’ solicitors and the plaintiff’s solicitors were willing to assist in the Mother’s application and to provide the Director of Legal Aid with necessary information.  I understand that although subsequently the Mother did approach the Legal Aid office, there was a misunderstanding that she was applying for legal aid in her then appeal against the Judgment.  In the end, there was no application for legal aid by the Mother in relation to the Summons, nor did the Mother file any affidavit in response or in opposition to the present application of Mr and Mrs K.

6.  At the substantive hearing, Counsel Mr Azan Marwah appeared for Mr and Mrs K and Mr Shaphan Marwah appeared for the plaintiff who is G by his next friend Ms L Chan (who will simply be referred to as the plaintiff in this decision).  Miss Carmen Poon, Senior Government Counsel of Department of Justice appeared for the Director of Social Welfare (DSW), and Ms Frances Irving appeared for the International Social Service (ISS).

7.  The Mother appeared in person at the substantive hearing and she indicated that she would not oppose the application.  The plaintiff did not oppose the application, nor did ISS. 

8.  Miss Poon had indicated in her written submissions that for reasons set out therein and her submissions on the relevant provisions in the AO, Reliefs (2), (4) to (6) of the Summons should not be allowed and thus she saw no justification to allow Mr and Mrs K to intervene as parties.  As a result, at the substantive hearing, Mr A Marwah sought an amendment of Relief (4) to make clear Mr and Mrs K were only seeking an order that they be granted leave to make arrangements to adopt G themselves and not a placement order, and further they would proceed only with Relief (1) and Relief (4) at the moment.

9.  The initial opposition and concerns of DWS were subsequently resolved.  The Court granted an order in terms of Relief (1) and Relief (4), subject to an undertaking from Mr and Mrs K (“Undertaking”) which will be set out later, and other terms as agreed by the parties.

10.  In so far as this Court is aware, this maybe the first time that an application was made under s 23A of the AO in wardship proceedings.  In the circumstances, I have decided to hand down reasons for my decision and give leave for the reasons to be published subject to the parties’ consent.

Discussion

11.  The relevant facts and circumstances of how G became a ward of this Court had been set out in the Judgment. 

12.  Mr and Mrs K have now expressed their willingness to adopt G and they have, with this in mind, undergone the necessary briefings with the Adoption Unit of the Social Welfare Department and have now been assessed as suitable to adopt.

13.  Mr A Marwah had referred this Court to Order 90 rule 6(1) of RHC which provides that in relation to an application with respect to a minor made under the Guardianship of Minors Ordinance, if the minor is not the plaintiff, he shall not, unless the Court otherwise directs, be made a defendant to the summons or served with the summons, but subject to rule 6(2), any other person appearing to be interested in, or affected by, the application shall be made a defendant or be served with the summons, although under rule 6(2), the Court may dispense with service of the summons (whether originating or ordinary) on any person and may order it to be served on any person not originally served.  Mr A Marwah submitted that Mr and Mrs K are persons “interested in” or “affected by” the wardship proceedings.

14.  As seen in the Judgment, to support her application to deward G, the Mother had set out her short-term arrangements while remaining in Hong Kong and her long-term arrangements for G upon their repatriation back to the Philippines.  However, her long-term arrangements for G then kept changing and notwithstanding that she was asked to provide information on the 4 Matters referred to in the Judgment[2], by the time of the trial, her position was that since she was not in the Philippines she could only plan as best as she could and that any plans she would have would necessarily be subject to the circumstances as and when she and G were physically there.  

15.  During the trial, this Court had the opportunity to meet with G who clearly indicated that he wanted to stay in Hong Kong.  This Court also heard evidence from Mrs K and suffice to say, from her accounts, she and her family had provided a warm and comfortable home for G and they had treated G as part of their family for past years and that it was the first time in G’s life that he had been in a settled home and family for a continuous period of time[3].  It was this Court’s finding  in the Judgment that uplifting G from his present settled environment might have a serious effect on G [4].

16.  Although this Court dismissed the Mother’s then application to deward G,  I had said in paragraph 217 of the Judgment, there was nothing to stop the Mother to make a fresh application in future when she had obtained all the details and information about the 4 Matters[5]. Notwithstanding what was said, there was no evidence before this Court that the Mother had taken any further steps to try to obtain details and information about the 4 Matters.  G’s status in Hong Kong is unchanged and he has not acquired any residency rights and there is no evidence that the Director of Immigration will be prepared to exercise his discretion to allow G to remain in Hong Kong or to issue him with any permit to stay.  He is in a “limbo” situation.

17.  As a result of the Judgment, G has continued to reside with Mr and Mrs K and has remained in their physical care.  Mrs K’s evidence during the trial was that she and Mr K had treated G as they had treated their own daughters and she further indicated that they would care for G and would continue to support G financially[6].  Now, as said, Mr and Mrs K have expressed their willingness to adopt G.  Having considered the evidence, I accept that Mr and Mrs K may be persons “interested in” or “affected by” these proceedings which are brought under not only section 26 of the High Court Ordinance but also under the Guardianship of Minors Ordinance and concern the welfare and upbringing of G. 

18.  However, at present, there are no pending or any existing summonses or applications which have not been dealt with and which would require this Court to consider whether under Order 90 rule 6(1) to direct Mr and Mrs K be made defendants or be served with the summons or the application.  The only matter before this Court was the Summons, which was taken out by Mr and Mrs K themselves.  I am of the view that Order 90 rule 6(1) does not really come into play at this stage.

19.  At the hearing, Mr A Marwah then explained that at this stage Mr and Mrs K only wanted to apply to intervene for the purpose to apply for leave under s 23A of the AO to make arrangements for the adoption of G.  

20.  As indicated by Miss Poon in her Skeleton Submissions, her position was that Mr and Mrs K were at their liberty to commence another set of proceedings should they wish to seek Court’s leave to make arrangement for adoption and to dispense with the Mother’s consent for adoption, and there was no need or reason for them to apply to intervene or to join in these wardship proceedings and that merely  indicating a desire to adopt G would not be sufficient interest to intervene as parties in these wardship proceedings.

21.  Ms Poon had helpfully provided an overview of the procedures of a local adoption in Hong Kong in her skeleton submissions, namely that[7]:

“(1) 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)). There are two types of consent, namely, specific consent under s 29A (ie a person is named as the prospective adopter for the infant) and general consent under s 29B (ie consent is given in the prescribed general form without specifying any person as the prospective adopter). Therefore, consent is Step 1 for any adoption.

(2) The Court may dispense with any consent required by s 5(5)(a) under s 6 if it is satisfied that (a) the parent or guardian has abandoned, neglected or persistently ill-treated the infant, (b) a person liable to contribute has persistently neglected or refused to contribute, (c) the person whose consent is required cannot be found or incapable of giving his consent or that his consent is unreasonably withheld, or (d) it is considered that consent ought to be dispensed with in all the circumstances.

(3) After satisfying Step 1 about the consent, deciding the placement will be regarded as Step 2. For placement of infants for local adoption where general consent is given under s 29B, it is only as and when DSW decides an applicant assessed to be suitable adoptive parent (“Approved Adoptive Parent”) would be suitable adoptive parent for a particular infant and the placement of the infant would be in the best interests of the infant that DSW or the accredited body may proceed with placement. Before DSW makes such a decision, he shall seek the opinion of each and every accredited body that has proposed any prospective adopter that particular infant and such other persons as the DSW may consider appropriate.

(4) For placement of infant for local adoption where specific consent is given under s 29A, the prospective adoptive parents shall be named in the consent and apply with the DSW for an assessment. In the absence of a specific consent and without being named as prospective adoptive parent, an Approved Prospective Parent cannot specify a particular infant for adoption although infant preference may be given.

(5) When deciding the placement for an infant, DSW and the accredited bodies will choose the most suitable Approved Prospective Parent from the pool having considered the best interest of the infant. This is to safeguard that every placement is for the best interest of the infant instead of meeting the desire of an Approved Prospective Parent.

(6) Placement is regarded as Step 3. DSW as the guardian ad litem would observe and investigate during the placement whether the proposed adoption is in the best interests of the infant.

(7) If there is a smooth placement, the chosen Approved Prospective Parent would then lodge the relevant form applying for an adoption order as Step 4.  DSW will make a report to Court for consideration whether adoption order should be granted.”

22.  In short, there are essentially 4 Steps for a local adoption:

(i) Step 1 – Obtaining the requisite consents and/or an order for dispensing with any consent and freeing the infant for adoption;

(ii) Step 2 – DSW or accredited body to decide on placement with the prospective adoptive parent (where specific consent given under s 29A) or the Approved Adoptive Parent (where general consent given under s 29B), as the case may be;

(iii) Step 3 – Actual placement of the infant with the prospective adoptive parent or the Approved Adoptive Parent, as the case may be;

(iv) Step 4 – After placement, the prospective adoptive parent or the Approved Adoptive Parent to apply for an adoption order for the infant.

23.  Miss Poon thus argued that since Step (1) had not been satisfied, it was premature for Mr and Mr K to make any arrangement for adoption.

24.  First of all, s 23A of the AO sets out the restrictions on arranging adoption and/or placing of infant for adoption and 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).”

25.  Mr A Marwah had referred this Court to In re Adoption Application (Breach of Procedures) [1993] Fam 125 in which a couple who had previously obtained an adoption order in El Savador in respect of a chid applied for an adoption order in UK upon the child’s arrival in UK.  Douglas Brown J had to consider 4 preliminary questions including the question whether there had been breaches of section 11 of the then Adoption Act 1976 in UK, which was similar to section 23A of our AO.  It was held that the wife in handing over the child to the husband after arrival in England with the intention that they should both adopt the child, placed the child for adoption in breach of section 11 (1) of the Adoption Act 1976 and that the court had no statutory power to waive, dispense with or authorise breaches of section 11 which had already taken place and although contravention of section 11 did not preclude the making of an adoption order, it was a matter to be taken into account.

26.  In light of the above case, I agree with Mr A Marwah that Mr and Mr K would have to apply for prior leave or authorisation under s 23A (1)(c) to allow them to proceed to make any arrangement at all for the adoption of G, that is prior to taking any steps including Step 1, otherwise they could be in breach of s 23 A(1)(c).

27.  The question then arose:  should the application be issued in the wardship proceedings or in separate proceedings as suggested by Miss Poon.

28.  It is not really disputed that once the wardship court becomes the guardian of a child, no important step in the life of a ward may be taken without the consent of the wardship court, and that this must include adoption of the ward and arrangements for adoption, changes in care and custodial decisions relating to the ward. 

29.  Even if it is the DSW or an accredited body which is to make arrangements for the adoption of a ward, or to place award for adoption, and even if they do not need prior authorisation under s 23A (1), they will still need to seek leave or consent from the wardship court.

30.  Insofar as this Court is aware, there seems to be no prescribed procedures for applications under s 23A(1)(c).  “Court” is defined in s 2 of the AO to mean:

“(a) subject to paragraph (b), the Court of First Instance or the District Court;

(b) in Part 3 and section 23B, the Court of First Instance.”

31.  An application under s 23A may be made in the District Court or in the Court of First Instance.  However, as a matter of case management, and to avoid multiplicity of proceedings before different judges and/or different level of judges, and in the case where leave of the wardship court will be required in any event, it makes practical sense and it will be more cost-effective to make such an application under the umbrella wardship proceedings.  In particular, in the present wardship proceedings, G has been a ward of this Court for some 6 years and that this Court also had the opportunity to meet with him to ascertain his wishes.

32.  As Mr and Mrs K were not parties in these proceedings, they would not be able to make their application under s 23A(1)(c) without being granted leave to intervene.

33.  Mr S Marwah for the plaintiff had referred the Court to Order 15 rule 6(2) of the RHC in relation to joinder of parties which states as follows:

“(2) Subject to the provision of this rule, at any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application—

(a) …

(b) order any of the following persons to be added as a party, namely –

(i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.

(3) An application by any person for any order under paragraph (2) adding him as a party must, except with the leave of the Court, be supported by an affidavit showing his interest in the matters in dispute in the cause of matter or, as the case may be, the question or issue to be determined as between him and any party to the cause or matter.”

34.  As pointed out by Mr S Marwah, it was a matter of the Court’s discretion under Order 15 rule 6(2)(b) as to whether to join Mr and Mrs K to the proceedings or not.

35.  As mentioned earlier, it was made clear by Mr A Marwah that Mr and Mrs K were seeking a joinder only to seek leave under s 23A(1)(c) to make arrangements to adopt G.  As I have said, it made practical sense for the application to be made in the wardship proceedings and leave of the Court would in any event be required for any steps to be taken in relation to a proposed adoption order in respect of the ward.  I was satisfied that Mr and Mrs K ought to be allowed to intervene or joined in these proceedings under Order 15 rule 6(2)(b) for the purpose of their application.

36.  As indicated by Mr A Marwah at the hearing, to allay the concerns on the part of DSW in relation to the confidentiality of the wardship proceedings, Mr and Mrs K were willing to offer the Undertaking, namely to undertake not to search the court file and/or to obtain any documents filed in these proceedings, unless with leave of Court. 

37.  The Undertaking was accepted by Miss Poon and by the Court and was incorporated in the order made by this Court.

38.  Miss Poon also proposed that there be a time limit imposed for Mr and Mrs K to make the necessary arrangements for adoption of G rather than leaving the matter open ended.  I agreed.  The parties then agreed to 6 months.

Conclusion

39.  The parties were able to agree to a draft order, and having regard to all above said, I was satisfied that the order as agreed was be in the best interests of the ward G, and I accordingly made the order in the agreed terms and the above were my reasons.