DIRECTOR OF SOCIAL WELFARE v. YPS

HCAD 31/2023

[2024] HKCFI 213

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADOPTION PROCEEDINGS NO 31 OF 2023

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D E C I S I O N

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Background

1.  This is an application by the Director of Social Welfare (“the Director”) for an order that the consent of the Defendant (“Mother”) for adoption of YTY (“the Minor”) is not required or that any consent so required be dispensed with; and that the Minor be freed for adoption.

2.  The Minor was born on 28 May 2020 out of the relationship between the Mother and one Mr K whose details are unknown. The name of the father on the Minor’s birth certificate is left blank. The birth certificate was applied for by the handling caseworker because the Mother failed to apply for one within the prescribed time.

3.  This case first came to the attention of the Social Welfare Department on 4 May 2020 when the Mother sought financial assistance. She revealed that she was then about 7 months pregnant.

4.  The Mother gave birth to the Minor at Queen Elizabeth Hospital. Five days later, both the Mother and the Minor were tested positive in urine toxicology tests on amphetamine and methamphetamine, indicating that the Mother had not ceased taking drugs during her pregnancy. A case of child neglect was established, with the Mother as perpetrator.

5.  The Mother had only visited the Minor 4 times in June 2020 after her birth. She then disappeared. The Minor was never taken back “home”. After discharge from hospital, the Minor had been to 2 children’s home or new comer’s ward before she resided in a foster home since 2 March 2021. She had adjusted well with the foster family. She is cheerful, energetic and is receptive to guidance. Since the Minor started attending K1 in 2023, comprehensive social security assistance has been applied for her.

6.  The Minor was born with atrial septal defect but her condition is generally stable in recent check-ups. She needs to attend medical check- ups to monitor her heart and underweight problems.

7.  The Mother was aged 37 at the time she gave birth to the Minor. She had divorced her husband in 2016. No children was born out of that wedlock. The Mother was a known drug addict and was sentenced to 6 years’ imprisonment in 2016 on a drug offence. She was discharged on 23 June 2018 and was put under a 15-month post-release supervision order, which expired on 22 September 2019.

8.  On 26 July 2020, the Mother was located by the police, in response to QEH’s report of child abandonment. She also suddenly turned up for an interview with the social work officer on 3 September 2020, the day before the adjourned hearing for care and protection order was to take place. Whilst expressing her willingness to take up her parental responsibility to the then social work officer, and promising to keep in regular contact with the social work officer for further discussion of child care plan, the Mother has failed to put her promise into action. She was absent at the hearing for care and protection order and had disappeared since.

9.  The Director of Social Welfare (“the Director”) has since 4 September 2020 been the guardian of the Minor.

10.  The Mother was unemployed. She did not have fixed abode and is now untraceable despite efforts on the part of the Director to trace her between 2020 and 2022.

11.  The Mother claimed that Mr K was likely to be the birth father but refused to disclose his other details. It is not known whether Mr K knew about the Mother’s pregnancy or the existence of the Minor.

12.  According to the maiden family members of the Mother, the Mother had given birth to 2 other daughters out of her previous relationships with other men. None of those 2 daughters were taken care of by the Mother herself. The eldest daughter (CCM), now aged 16, has been raised by the Mother’s elder sister and is living with the members of the Mother’s maiden family. The Mother had not visited CCM for 4 years and had not financially supported her. The second daughter (CYK), now aged 14, has been looked after by her birth father since her birth. There is no evidence that the Mother ever visited CYK or financially supported her.

13.  By an order dated 16 November 2023, substituted service of the originating summons and other court documents on the Defendant by advertisement in a local newspaper was ordered. The order was effected on 28 December 2023. The Mother has not filed any acknowledgement of service and so this hearing proceeded in her absence.

Legal principles

14.  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 the Minor.

15.  The term “parent” in relation to a child born out of wedlock is defined in section 2 of the Ordinance 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.

16.  The court may make an order declaring an Minor free for adoption if it is satisfied that:

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

(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.

17.  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.”

18.  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 Minor?

(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?

19.  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, 8 September 2020, B Chu J,

20.  The fact that the Court is satisfied that any necessary consent should be dispensed with does not make the Court a rubber stamp to allow the freeing application: DSW v HJX [2021] 1 HKLRD 519, §30.

Stage 1: is adoption in the best interests of the Minor?

21.  I have considered the Adoption Checklist.

22.  The Minor, now aged 3 years and 8 months, is too young to express any view on adoption. She needs a stable and permanent family to provide her with love, care, and attention, and with commitment to nurture her. As she needs to attend regular follow-ups for her heart and underweight problems, there needs to be a constant carer to attend to her.

23.  The Minor has never enjoyed having a family ever since birth. The Mother has no intention to raise the Minor herself or provide the Minor with a stable home. The Minor has no recollection of the Mother. She has never met her half-siblings, her birth father or the extended family of the Mother. The effect of her ceasing to be a member of her original family is none.

24.  The Minor has primarily been under the care of a foster family since her discharge from the new born ward. Given her young age, the adjustment to detachment from the foster family would not be long, as she can adapt to changes easily.

25.  The Minor has general good health, normal intelligence, and has cheerful and outgoing character. Her chance of being adopted by local or overseas parents is optimistic.

26.  The Minor does not appear to be suffering from or is at risk of suffering from harm.

27.  Neither the maternal grandfather nor the maternal aunt have any intention or spare capacity to look after the Minor. The identity of the biological father is unknown.

28.  Foster home is a temporary measure subject to the duration of the service agreement with each foster family. It cannot be compared to the home of committed adoptive parents. Change in foster parents may affect the Minor’s sense of belonging and security. As the Minor reaches school age, it would be undesirable for her to change to a new school placement every time she moves to a new foster family. Foster service is provided only up to the age of 18.

29.  Institutions also cannot be compared to the home of committed adoptive parents. The Minor can hardly develop bonding with the institutional care workers. There would be a lack of social exposure for the Minor or the chance to experience commonplace activities outside if she stays too long in an institution. Service can only be provided to the Minor up to the age of 21.

30.  In my view, a permanent home with an adoptive family can provide lifelong and stable support for the Minor which a foster home or institution cannot give. The Minor will have the opportunity to develop emotional bonding and a sense of belonging with the adoptive parents. These are all beneficial to the growth of the Minor. There is no “expiry date” for the care service of the adoptive family. With proper preparation, the Minor can adjust to life in an adoptive family given her young age and good health.

31.  I find that adoption is in the best interests of the Minor.

Stage 2: grounds for dispensation with consent

32.  The Mother has never assumed the responsibilities of a mother. She took drugs whilst pregnant. She has not even applied for the birth certificate of the Minor. She has never taken care of the Minor or financially supported her. She simply has no intention to do so. Her promises to the social welfare officer to resume care of the Minor when the Mother’s financial condition improved were empty ones. As summarized by the case worker, the Mother has defaulted in court hearings, defaulted in interviews, never replied to messages or voicemails and even changed her telephone number to avoid contact with the case worker. She never enquired about the Minor. Now being untraceable, the Mother has plainly abandoned and neglected the Minor, leaving her to her fate.

33.  Further, the Mother did not have a job or fixed abode. She fails to put her life in order. Her drug addiction, abandonment of the Minor and failure to even maintain contact with her own extended family members, all point to the Mother being unsuitable to be a child carer. She failed to face the reality that she could neither take care of herself nor the Minor and discuss with the social work officer to device a care plan. In being untraceable and hence withholding her consent to free the Minor for adoption, the Mother has been prejudicing the Minor’s best interests and has been acting unreasonably.

34.  Given the Mother’s irresponsible attitude towards her pregnancy, the lack of ties between her and the Minor, and the above analyses, there is no realistic likelihood in the foreseeable future that the Mother may be able to offer a loving, safe and stable family for the Minor. The older the Minor gets, the lesser the chance of seeking adoption. The consent of the Mother ought to be dispensed with in all the circumstances of the case.

35.  Details of Mr K is unknown and he has not applied to the Court for an order under section 3(1)(d) of GMO. Therefore, he does not fall within the definition of “parent” in section 2 of the Ordinance and his consent for the Minor’s adoption is not required.

Conclusion

36.  The 2-stage test in YKK is satisfied. There is no factor which point against a freeing order. I therefore order that (i) the Defendant’s consent for freeing the Minor for adoption is not required; and (ii) the Minor be freed for adoption.

37.  I thank Ms Lin for her assistance.

A Note on Practice

38.  For court proceedings involving a minor, the names of the minor and the parents are usually not disclosed. However, where notice of proceedings have to be given by way of advertisement, it is inevitable that the name(s) of the parent(s) (as respondent) have to be disclosed so that the parents will be alerted to the proceedings. Even so, the name of the minor should still not be mentioned but only be described as e.g. “the son/daughter of [name of parent] aged__” in the advertisement.