D v. 王 and Another

HCMP 1566/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1566 OF 2015

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REASONS FOR DECISION
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1.This was an application by the Director of Social Welfare for an order declaring a child WKY free for adoption and dispensing with the defendants’ consent as required by section 5 (5)(a) of the Adoption Ordinance, Cap 290 (“Ordinance”).

2.I allowed the application, and here are my reasons.

3.The 2^nd defendant was a resident of Mainland China, and during her visit to Hong Kong gave birth to WKY on 27 June 2006.  She was registered as the mother of WKY on WKY’s birth certificate.  The name of the father on WKY’s birth certificate was left blank. 

4.According to WKY’s paternal aunt Madam Wong Yuk-lan (“Madam Wong”), WKY’s putative father is the 1^st defendant, and that before the birth of WKY, the defendants also had another son, who is 2 years older than WKY, and who was all along under the care of his paternal grandfather in Mainland China.  The paternal grandfather died in September 2013, and since then WKY had been looked after by his relatives in Mainland China.

5.The 2^nd defendant legally married the 1^st defendant on 29 August 2007 in Mainland China.

6.According to Madam Wong, WKY was placed under the care of her parents after birth.  As both the defendants were suspected to have mental illness and could not render proper care to WKY, they authorized Madam Wong to bring WKY to Hong Kong and to take care of her in October 2008. The defendants had each signed a letter of authorization on 9 April 2010, authorizing Madam Wong to care for WKY, due to their inability to do so (“Letter of Authorisations”).

7.According to Madam Wong, the 2^nd defendant then went missing in April 2010, and later the 1^st defendant left the family claiming to be working in Shenzhen, and since November 2010, also went missing.

8.WKY’s situation was first known to the Social Welfare Department when Madam Wong approached the Wong Tai Sin Intergrated Family Service Centre in January 2010 for financial assistance to take care of WKY.  WKY was first taken care of by a distant relative when Madam Wong arranged weekly home leave for her, and then in December 2010, the distant relative became reluctant to take care of WKY, the child was then arranged to stay at a foster home , and then moved to a small group home on about 27 June 2011.

9.The Director of Social Welfare was appointed the legal guardian of WKY by the Juvenile Court on 12 April 2012, and on 28 February 2014, WKY was transferred to another small group home on 28 February 2014 for better care and attention.

10.The last known address of the 1^st defendant was an address in Bao An in Shenzhen, and that of the 2^nd defendant was simply “China Chaozhou”.  The 1^st defendant’s brother had reported to the police in China that the 1^st defendant had gone missing on 26 November 2010, and repeated attempts to locate the defendants were unsuccessful.  Public tracing of the defendants had been conducted through newspaper notices in Mainland China by the International Social Services Hong Kong Branch and through radio broadcasts on various dates in 2013.  Notices were also posted in all the District Social Welfare Offices and Integrated Family Services Centres of Social Welfare Department, Integrated Family Service Centres of non-government organizations, police stations and District Offices in April and May 2012.

11.The only relatives of WKY are Madam Wong’s family.  Although Madam Wong had thought of applying for guardianship over WKY, her husband and sons strongly rejected.  Madam Wong later dropped the idea.  Madam Wong understood that it would be for WKY’s best interest to free her for adoption, as WKY’s paternal grandfather had died, and other relatives were already taking care of WKY’s elder brother in Mainland China, who only had limited contacts with WKY.

12.The Director of Social Welfare issued the present originating summons on 25 June 2015 under section 5A of the Ordinance.  The Director had also applied for service of the originating summons on both defendants be dispensed with, or alternatively, service be effected by way of substituted service by sending the originating summons and accompanying documents to the 1^st defendant’s last known address in Bao An.

13.This court had enquired about whether there had been any investigation result from the public security office on the missing report of the 1^st defendant.  The Director send a copy of a certificate issued by the Shenzhen Public Security Office certifying that the 1^st defendant had been missing on 26 November 2010.

14.As a result, and having considered the evidence, on 27 July 2015, this court ordered that service of the originating summons and the accompanying documents on 1^st and 2^nd defendants be dispensed with.

15.Under section 5(5)(a) of the Adoption Ordinance, Cap 290, an adoption order shall not be made except with, inter alia, the consent of every person who is a parent of the infant.  However, the court may make an order declaring an infant free for adoption if it is satisfied that any such consent should be dispensed with : section 5A(1).  The parent’s consent may be dispensed with if the court is satisfied that :

(i) the parent has abandoned or neglected the infant (section 6(1)(a)); or

(ii) the parent cannot be found (section 6(1)(c)); or

(iii) in all the circumstances of the case, such consent ought to be dispensed with (the last sentence in section 6(1)).

16.The Director relied on all the three grounds in section 6(1) in support of this application.  If grounds (i) and (ii) are established, ground (iii) would follow.

17.The Director has also referred this court to Re C (Adoption: Consent) [2012] 1 HKLRD 308, HCMP 1292 of 2011, 18 November 2011.

18.Having considered the evidence, I was satisfied that, in particular by signing the Letters of Authorisation to Madam Wong  and entrusting WKY to Madam Wong’s care, and thereafter disappearing, and were not able to be traced, the defendants had abandoned and/or neglected WKY.   I was further satisfied that the Director had taken all reasonably practicable steps to locate the defendants in order to inform them of the proposed welfare/adoption plan for WKY, but to no avail.  I was also satisfied that the parents could not be found. 

19.In light of the above, I came to the conclusion that in all the circumstances of the case, the 2^nd defendant’s consent ought to be dispensed with.  So far as the 1^st defendant was concerned, although he was only said to be the putative father, his consent, if such was necessary, was also dispensed with.

20.Having considered the interest and welfare of WKY,  I came to the view that adoption would be in WKY’s best interests and that according to the Director, the chance for WKY to be adopted by local  or overseas adoptive parents was optimistic.

21.I therefore granted the order sought by the Director, namely the consent of the defendants under section 5 (5) (a) of the Ordinance be dispensed with and that WKY be freed for adoption.  I made no order as to costs.

22.For what it is worth, I also authorize the release of a copy of this anonymised copy of the Reasons for publication.

Mr Vincent Yeung GC of the Department of Justice, for the plaintiff

The 1^st defendant was not represented and did not appear

The 2^nd defendant was not represented and did not appear