Re L

CACV000031/1989

IN THE COURT OF APPEAL

CIVIL APPEAL NO. 31 OF 1989

(ON APPEAL FROM HIGH COURT ADOPTION CASE NO. 2 OF 1988)

In Re L (an infant (Adoption: Parental Consent)

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Coram: Hon. Cons, V-P., Kempster & Macdougall, JJ.A.

Date of hearing: 12 April 1989

Date of judgment: 25 April 1989

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J U D G M E N T

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Kempaster, J.A.:

1. This is the judgment of the Court on an appeal from the judgment of Jeres J given or 13 January 1988 refusing the application of the natural mother of a male child here to her on 16 June 1987 for an order revoking the consent which she had given on 11 August 1987, in the prescribed general form, to the maling of an adoption order in respect of such child. Having regard to rule 14A of the Adoption Rules the application was made by summons in adoption proceeding which had been commenced in reliance or the consent had give and which were then transferred to the High Court. By virtue of section 5(5F) the Director of Social Welfare had become guardian of the child with liberty to act as guardiar on 11 August 1987.

2. It is material to set out certain portions of section 5 of the Adoption Ordinance (Cap 290) :

"… (5B) Subject to subsection (5C), where the consent of a parent is given in the prescribed general form of consent, the parent shall cease to have any parental rights, duties, obligations or liabilities in respect of the infant with effect from the execution of the form of consent.

(5C) A parent whose consent to an adoption order was given in the prescribed general form of consent may revoke his consent by giving written notice of revecation to the Director within 3 months from the day on which the form of consent was executed, but subject to subsections (5D) and (5E) and save as sioresaid the consent shall be inrevocable.

(5D) Notaithstanding subsection (5C), a parent whose consent to an adoption order was giver in the prescribed geperal form of consent may, at any time after the expiry of the period of 3 months referred to it that subsection and referred to in that subsection and before the waking of an adoption order, apply to the Court for an order rocking that consent on the ground that he wishes to resume the parental rights, duties, obligations and liabilities; and while the application is pending the Court shall not make any adoption order in respect of the child the subject of the consent. …".

The mother issued her summors on 22 November 1988, more than 15 months after 11 August 1987, pursuant to section 5(5D). No specific guidance on the exercise of judicial discretion in that context is to be found in the Ordinance thought it is apparent that, to succeed, the applicant must first satisfy the court this he or she indeed wishes to resume his or her parental rights, duties, oblipations and liabilities. This is on contrast to section 6 of the Adoption Act 1976, which provides that

"In reaching any decision relating to the adoption of a child a court … shall have regard to all the ciroumstanoes, first consideration being given to the need to safeguard and promote the welfare of the child throughout his childhood …."

The rearest to this we get in Hong Kong is section 3(i) of the Guardiarship of Minors Ordinsrce (Cap 13) which reads :

"In relation to the custody or upbringing of a minor …

(a) in any proceedings before any court …. The court -

(i) shall regard the welfare of the minor as the first and paramount consideration ….".

Where asked to make an actual adoption order a judge is required by section 8(1) of the adoption Ordinance to be satisfied :

"(a) that every person whose consent is necessary under this Ordinance, and whose consent is not dispersed with, has consented to and urderstands the nature and effect of the adoption order …

(b) that the order if made will be for the welfare of the infant …

(c) that the applicant has not received or agreed to receive, and that no person has made or given or agreed to make or given to the applicant, any payment or other reward in consideration of the adoption except such as the Court may sanction''.

By section 6(1):

"The Court may dispense with any consent reouined by section 5(5)(a) if it is satisfied -

(a) in the case of a parent or guardian of the infant, that he has abandoned, neglected on persistently ill-treated the infant;

(b) in the case of a person liable by virtore on an order or agreement to contribut to the maintenance of the infant, that be has persistently neglected or refused so to contribute;

(c) in any case, that the person whose consent is required cannot be found or is incapable of giving his consent or that his consent is unreasonably withleld.

or if it is of opinion that such consent ought in all the circumstances of the case, to be dispersed with".

3. We cannot think that the provisions of section 3(1) of the Guardianship of mirons Ordinshce bear directly on the way a judge seised of an application under section 5D exercises his discretion.

"In chstody case what is in question is the custody care of control of the child … and that is why his interest is the finst and paramcunt copsiderstion. But in sdortion cases what is in issue is the parent child relationship itself and in that relationship the psnent as well as the child has legitioate nights.

Per Lord Bailsham IC in Jr Fe W [1971] AC 682 at P 693. No more do the provisions guiding his discretion whether or not to make on adoption order or to dispense with parental consent. In so concluding we would not wish to inhibit the discretion of a judge who, in particular circumstances, might think it appropriate to adjourn the hearing of an application under section 5(5D) to the hearing of the substantive application to adopt made under sections 4 and 8; confidentiality as to the identity of the proposed adoptive parent or parents being preserved pursuant to Adoptive Rule 18. No more would we suggest that a judge was in any way reouired sot o exercise his discretion. Even if an application under section 5(5D) has been granted it still remains open to a judge to dispense with corsent pursuant to section 6 upon the substartive application for an adoption order.

4. It falls therefore to consider what consideration should weight with a judge reouired exercise his discretion pursuant to section 5(5D) once he has satisfied himself that the applicant wishes to resume his parental rights and obligations. Among these the interests of the child must be included if only because they would he regarded as important by a reasonable parent seeking to invoke the section as pointed out in an analogous context by Lord Denning ME in In Be I (an infant) The Times July 19, 1962. So must the obvious claims of the natural parent though the fact that there has been a change of mind will also be relevant as hearing on the interests of the child. As Griffitbs LJ said when considering whether or not to dispense with parental consent in In Re P [1985] FEP 635 at P 637:

"…. The longer the mother vacillates the more difficult it becomes for any bond to be forged with her again …".

In like circumstances Ormrod LJ remarked :

"The longer the time the more difficult it is for any court to come to the conclusion that the child would he anything but seriously prejudiced by the change in care which would be involved in refusing an adoption order".

In Re W [1982] 3 FIP 75 at p 80.

5. Another relevant interest must be that of the prospective adoptive parents who, as in the present instance, will have interested themselves in the child whom, as recuired by section 5(7)(a), they may well have received into their home. O'Cornor v A and E [1971] 1 WLR 1227 at p 1236 per Lord Simon of Clainsdale. Other consideration will properly be taker into account in the light of cdrcumstarces peouliat to the particular application being heard.

Jores J considered the instant application

"without directing my wind to the weliaxwe of the child as such but to the genuinensess of the applicanr or the sincerity …".

He was not satisfied that the applicant was genuine out sincere in seeking to revoke her consent. Accordingly she failed to surmount the first hordle. With that corclusion we cannot begin to quarrel. To adopt the words of Lord Wilberforce in Jr Re D [1977] AC 602 at p 626 :

"It hardly requires re-statement to say that very great weight ought to the giver to the decision of the judge who has seen and heard the parties and who has certainly acquired such experience in dealing with adoption cases … Not only should his findings of fact, if based on a proper self-direction and supported by evidence, be respected, but it must be appreciated that the judge has the means of appraising the elements of character and personality of the parties, which are a vital basis for any decision. … Character and persorality certainly cannot be judged as well from a transoript of evidence, ever where the evidence seems not to be contested, as by seeing and hearing these involved. The fact that there may not he explicit references to these matters in the judgment (and judges tend to be reticent so as to avoid giving unnecessary pain) does not mean that they are not an important and unexpressed foundation for his views : a court of appeal should assume that the were".

Insofar as the judge went or to say

"Nor do I accept that their relationship (that of the applicant and the natural father) is either a stable one on compatible one."

He in fact took the interests of the child into account.

6. In the premises we are bound to dismiss this appeal which now we do.

Representation:

Miss J Leong (Parg, Kung & Co) for the mother (Applicant)

Miss V Hartstein & Miss Yuen (Crown Solicitor) for the Attorney General on behalf of the Director of social Welfare as guardian ad litem (Respondent)