DIRECTOR OF SOCIAL WELFARE v. LNT AND ANOTHER

HCAD 9/2020

[2021] HKCFI 1593

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADOPTION APPLICATION NO 9 OF 2020

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DECISION (2)

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Introduction

1.  On 10 March 2021, this Court handed down a decision (“1^st Decision”) that a guardian ad litem should be appointed for the 1^st defendant, the Mother of the Child LSL who is the subject of the present application made by the Director of Social Welfare (“Director”) under section 5A of the Adoption Ordinance, Cap 290 (“Ordinance”) for an order declaring the Child free for adoption and dispensing with any consent required by section 5(5)(a) of the Ordinance.  This Court further ordered that if there was no other relative or family member who was willing to act as the guardian ad litem, the Official Solicitor be appointed for the Mother.

2.  The background in this matter has been set out in the 1^st Decision, which I will not repeat here.  I will continue to adopt the abbreviations in the 1^st Decision, save otherwise indicated herein.

3.  The Official Solicitor was appointed pursuant to the 1^st Decision, and Ms Eunice Ip of the Official Solicitor (“OS”) submitted her report on 10 May 2021 (“Report”).

The Report

4.  OS arranged an interview with the Mother at the Tai Po Hospital on 13 April 2021.  Due to the unstable emotion of Mother, a ward nurse Ms Cheung (“Nurse”) requested to be present throughout the interview to cater for any contingency.

5.  Mother was informed that the OS was appointed by the Judge to represent her in the present proceedings in relation to the proposed adoption of the Child and the meeting was for her to tell the OS her views, wishes and feelings about the Child and the proposed adoption.

6.  Mother informed OS that she was admitted to the Tai Po Hospital which to her knowledge was situated in the North America for child delivery and that she had given birth to twins who are now 2 years and 7 months old and living in North America and who are being taken care of by her American husband.  According to the Nurse, the Mother had been consistently telling the same details or her perceived facts to others.

7.  Mother denied having delivered a baby by the name of LSL and expressed no knowledge of the Child, but commented that any of her children should bear the surname of her husband instead of her own maiden name.  Mother was of the view that she could be discharged anytime but for the current virus, and that her husband would receive her back home after the pandemic.

8.  Mother firmly disagreed to the adoption of any of her children and that she was of the view that her children should be taken care of by herself, and she had confidence that she would be able to do so.

9.  As stated in the Report, according to the medical reports of Mother prepared by Dr Wong, Mother was observed that she could not be engaged in a reasonable discussion on any childcare or welfare issues concerning the Child, and that she is incapable by reason of mental incapacity as defined under the Mental Health Ordinance, Cap 136 of managing and administering her property and affairs and is mentally unfit for discussing childcare plan and for giving consent to relinquish her parental right in respect of the Child.

10.  The OS considered all the circumstances pertaining to the Child as set out the Report and took into account the Adoption Checklist, in particular:

(1)  The particular needs of the Child i.e. her congenital illnesses/deficiencies and the consequential medical needs;

(2)  There was no evidence showing that the Child had maintained any contact or relationship with the Mother, her maiden family or the Mother’s husband, namely the 2^nd defendant herein.  There would be little adverse effect, if any, on the Child of having ceased to be a member of the original family;

(3)  There was no evidence to suggest that the Child could be at risk of suffering from any harm if she were to be freed for adoption;

(4)  Given the background and medical conditions of the Mother, it appears from all objective yardsticks that she is not in a position to provide a promising and/or secure future for the Child;

(5)  It did not look like any relation of the Child has the ability and willingness to provide her with a secure environment in which she can develop or to meet her needs.

11.  As pointed out by the OS, her duty is to conduct this case on Mother’s behalf and in her best interests in a fair and competent fashion.  OS is of the view that given the situation that the Mother’s childcare ability is so much limited, her cognitive ability is so much undermined by her mental condition and she has been preoccupied with disorganized thoughts and self-perceived facts, her vague insistence (in the sense that it was not expressed in relation to the Child whom the Mother has no recollection of any nature) of no adoption for any of her children is not a position/course the OS can advocate for. 

12.  Having thoroughly considered all the particular circumstances, the OS is of the opinion that it should be appropriate for her as guardian ad litem of the Mother to express her non-opposition to the Director’s application to dispense with the consent of the Mother as required by section 5(5)(a) on the grounds specified under section 6(1) of the Ordinance.

Conclusion

13.  After the Report, the Director has made no further submissions.

14.  Those details or perceived facts related by Mother to the OS and as set out in the Report did not in fact reflect Mother’s circumstances as set out in the Director’s affidavit in the present application or in the social welfare officer’s report submitted to the Juvenile Court when a Care and Protection Order for the Child was made on 15 September 2017.

15.  Having considered the circumstances of this case and the Report, the Adoption Checklist factors, and in light of OS’s non-opposition to the Director’s application, I am of the view that the orders sought by the Director are in the best interests of the Child and I am prepared to grant an order to dispense with any consent required by section 5 (5)(a) of the Ordinance and that the Child LSL be freed for adoption.  I made no order as to costs.