Director of Social Welfare v. Ypc

HCMP 705/2020

[2020] HKCFI 2290

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 705 OF 2020

______________________

______________________

______________________

Before: Hon B Chu J in Chambers (Not Open to Public)

Dates of Hearing: 7 July and 12 August 2020

Date of Decision: 12 August 2020

Date of Reasons for Decision: 8 September 2020

__________________________________

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

__________________________________

Introduction

1.This was an application by the Director of Social Welfare (“Director”) under section 5A of the Adoption Ordinance, Cap 290, (“Ordinance”) for an order dispensing with the consent of the defendant (“D”), who is the putative father of the child YC (“Child”), such consent being required under section 5(5)(a) of the Ordinance, and declaring the Child free for adoption.

2.The Director sought to dispense with D’s consent under section 6(1) of the Ordinance, on the grounds that (i) D had abandoned and/or neglected the Child under section 6(1)(a) and/or (ii) D’s consent was unreasonably withheld under section 6(1)(c) of the Ordinance, or that in all the circumstances of this case, D’s consent ought to be dispensed with.

3.Ms Tam Kit-Ling Joanne (“Ms Tam”), the Social Work Officer of the Social Welfare Department who has been in charge of this matter made the supporting affidavit herein on behalf of the Director.

4.There were two hearings before this Court, the first on 7 July 2020 (“1^st Hearing”) and the second on 12 August 2020 (“2^nd Hearing”).  Ms Christine Wong, Government Counsel of Department of Justice, appeared for the Director at the two Hearings.  Ms Eunice Ip of the Official Solicitor’s office appeared for the Child at the 2^nd Hearing.

Background

5.The biological mother of the Child is Madam YCY (“Mother”).  The Child was born in September 2009 at the United Christian Hospital, and he has just had his 11^th birthday at the time of the handing down of these Reasons.  

6.As seen in a social welfare report dated 26 April 2016 (“SWR”)[1], the Mother was born in Hong Kong and had distant relationship with her family and she seldom contacted them.  She completed education to Form 3 level and had worked as a saleslady but she then started to take drugs.   She alleged that she stopped taking drugs when she was pregnant with the Child. 

7.The Mother met D in 2008 and they started dating, and later in early 2009, they cohabited in a rented room.  D was a lorry driver at that time and was supporting Mother’s living.  The Child was born out of Mother’s cohabitation with D.  According to Mother, D deserted her soon after the Child’s birth. 

8.On the Child’s birth certificate, the surname and name of his father was left blank by the Mother, who was the informant[2]. 

9.According to the SWR, Mother was very sad after being deserted by D and she was incapable of taking care of the Child due to her unstable emotion and accommodation problems.  The Child, who was at that time only about 8 months old, was arranged for residential care in May 2010 at the Children Residential Home of the Hong Kong Society for the Protection of Children.   

10.Mother then met a Mr Chiu in 2011 and Mother later gave birth to a daughter in 2013 (“Daughter”), but then Mr Chiu was imprisoned in the same year and Mother then had to take care of the Daughter single-handedly and they were dependent on social security assistance.  According to the SWR, the Daughter was enjoying good health and normal development and started to attend K1 in September 2016.  Upon release from prison, Mr Chiu reunited with the Mother and the Daughter but due to ongoing quarrels, Mr Chiu later moved away from Mother. 

11.In the meantime, in November 2012, the Child had been transferred to a foster home under the supervision of Mother’s Choice.  By now, the Child has been residing in the foster home for some 7 years and 10 months.

12.Mother reportedly only visited the Child irregularly since May 2010 when he was received into residential care and since December 2014, Mother had stopped visiting the Child completely.

13.On 22 April 2016, Mother signed a Form 4A (General Consent of Parent to the Adoption of an Infant)[3] and a statutory declaration to give her consent to the adoption of the Child[4].  The Mother claimed that she had had no contact with D since he deserted her and the Child and that she had no contact information regarding D.

14.On 27 April 2016, on the application by the Director, the Director was appointed the legal guardian of the Child  under section 34(1) (a) of the Protection of Children and Juveniles Ordinance, Cap 213(“PCJO”)[5].  The SWR was in fact filed in support of the Director’s said application.

15.Prior to the Director’s application, in March 2016, the Director had published notices in local newspapers to try to trace D but according to Ms Tam, such notices yielded no response[6].  However, the day after the Director was appointed the legal guardian, on 28 April 2016, the Director received a message from the Child’s maternal aunt given through the Family Ties Integrated Family Service Centre of Hong Kong Christian Service, that D was remanded at the Lai Chi Kok Reception Centre.

16.During welfare visits to D on 9 May 2016, 25 July 2016, 20 October 2016 and 28 December 2016 at the Lai Chi Kok Reception Centre and/or Stanley Prison, D had expressed his wish to claim the paternity of the Child and had informed the Director that he had approached the Legal Aid Department for such application.

17.Later on 3 March 2017, D was sentenced to imprisonment for trafficking in dangerous drugs and the earliest date of discharge was in November 2020. 

18.D did make an application for legal aid in relation to the Child, but apparently his application was rejected in January 2017.  During a welfare visit at the prison on 1 June 2017, D had told the then Social Welfare Department caseworker that he would instruct solicitors privately and he agreed to keep the Director informed.  He signed an undertaking on 1 June 2017(“Undertaking”), indicating that he had been explained the proposed adoption plan for the Child, and that he wished to take up his responsibility as the Child’s father and that he intended to apply for custody of the Child[7].

19.However, after the signing of the Undertaking, it appeared that D failed to make any contact with the Director.  The Director had contacted D’s father who said he had no knowledge about the progress of D’s application.  The Director then sent a letter dated 15 November 2017 to D enquiring about the progress of his intended application.  There had been no response to the letter.

20.On 29 March 2018, D refused the then social welfare caseworker’s welfare visit to him at the prison for discussion over the Child’s welfare.

21.Thereafter, it would appear that there was no further progress.

22.It would appear that on about 11 December 2019, the Director had arranged for the Child to see a clinical psychologist Ms Kindy Lam at the Social Welfare Department (“Ms Lam”) who prepared a psychologist progress report dated 11 December 2019 in relation to the Child (“Progress Report”).

23.Then, on 1 February 2020, the Director sent a further letter to D but again there was no response thereto. 

24.It was only on 27 May 2020 that the Director took out the present originating summons.

25.As mentioned earlier, the 1^st Hearing eventually took place before this Court on 7 July 2020.

26.This Court issued a warrant for D to be brought to Court from the Hei Ling Chau Correctional Institution where he is presently serving his sentence.

27.At the 1^st Hearing, D informed this Court that he would be released in November this year and that he wished to care for the Child himself.

28.Further, in light of Ms Lam’s Progress Report, the contents of which I will refer to later, this Court also directed that, subject to the consent of the Official Solicitor, he be directed to represent the Child. 

29.This Court adjourned the 1^st Hearing to the 2^nd Hearing to give D time to apply for legal aid and/or otherwise, to make the necessary application for his parental rights, if any, under sections 3 (1)(c) and 10 (1) of Guardianship of Minors Ordinance, Cap 13 (“GMO”).

30.Thereafter, no applications were made by D.

31.At the 2^nd Hearing, D confirmed that he had not made any applications.  He was duly informed that as he had not made any applications, this Court would regard him as no longer objecting to the Director’s application, to which he indicated his confirmation and understanding.

32.At the 2^nd Hearing, Ms Ip of the Official Solicitor’s office had appeared for the Child and she indicated no objection to the Director’s application.

33.The draft order (in Chinese) was given to D to read and he again indicated he had no comments.

34.This Court then made an order as sought by the Director.

35.This Court decided to hand down reasons, and to set out also the proper approach of the courts in applications under the Ordinance.  

The relevant statutory provisions

36.36. The following provisions of the Ordinance are relied on by Ms Wong for the Director:

Section 5(5)(a) which provides that:-

“(5) Subject to sections 5A and 6, an adoption order shall not be made-

(a)  in any case, but subject to section 20C(4), 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;”

Sections 5A(l) and (2) which provide that:-

“(1) Subject to subsection (2), where on an application made by the Director, the Court is satisfied that any consent required by section 5(5)(a) should be dispensed with, it may make an order declaring an infant free for adoption.

(2)  An application in respect of an infant may be made by the Director under subsection (I) only if under any Ordinance the Director is the legal guardian of the infant or the infant is in the care of the Director.”

Section 6(1) which provides that:-

“(1) The Court may dispense with any consent required 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 or persistently ill-treated the infant;

(b) in the case of a person liable by virtue of an order or agreement to contribute to the maintenance of the infant, that he 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 withheld, or if it is of opinion that such consent ought, in all the circumstances of the case, to be dispensed with.”

The present case

37.Ms Wong submitted that this Court was to decide, as a matter of fact, whether D had abandoned and/or neglected the Child, whether D’s consent was unreasonably withheld; and, by exercising this Court's wider discretion, whether, in all the circumstances of the present case, D’s consent ought to be dispensed with.

38.It was quite clear that at the time of the preparation of the SWR, the social worker only interviewed the Mother and the Child, and did not have the chance to interview the Father.  The information on the family background was obtained mainly from the Mother.  At the time of the SWR, the Child was about 6 years and 7 months and he had been in a foster home since November 2012.   

39.The Child was reported to be born with Glucose-6-Phosphate Dehydrogenase (G6PD) and suffered from eczema and required regular follow up at the Prince of Wales Hospital biannually.  The Child was at the time also diagnosed to have Attention Deficit Hyperactivity Disorder (ADHD) and he was attending regular psychiatric follow up at the Alice Ho Miu Ling Nethersole Hospital every 4 months.  His hyperactivity was reported to be alleviated with medication.

40.Upon an assessment of the Pamela Youde Child Assessment Centre on12 August 2013, the Child was found to have minor motor developmental delay of 4 months.  His language comprehension and expression ability was at the lower range while his pronunciation was delayed.

41.According to assessment result, his delay in speech, social skills inappropriate manners and behavioral problems were related to disorganized attachment developed due to different residential care.

42.He was at that time recommended to repeat K3 at a nursery school in Shatin, for further pre-school training.

43.Thereafter, there was no further or updated SWR.

44.Then as mentioned earlier, there was the Progress Report.  It can be seen therein that the Child was noted to be very anxious, particularly on something he felt uncertain or he was not familiar with.  He tended to stick to the foster mother, the person he felt safe and secure to connect with.  He spent some time before he could feel safe to relate with Ms Lam, the clinical psychologist.

45.However, it would appear from the Progress Report that there had been prior interviews with the Child.  Further, it would appear that the Child is very much attached to his foster mother, which would not be surprising since he has been in the present foster home for some time.

46.Anyway, according to Ms Lam, when the Child’s future welfare was raised and discussed in the interviews, the Child showed basic understanding that the foster care service was a temporary one, while he expressed definite wish to have the care from the present foster family till his adulthood.  He raised lots of concerns and anticipated anxiety in relation to the possible change in his future living arrangement, and had expressed wish to meet his mother for the last time.  He became agitated when he was informed that the Mother had the autonomy to decide if she wanted to meet him, as he could not understand why the mother may not want to see him, He wanted to maintain certain degree of connection with the foster mother, such as he wanted to see or talk with her when needed.  The Child claimed that he refused to be adopted abroad, with the reasons that he was fearful of leaving Hong Kong, the only place he felt familiar with.  He also worried that the adopted parents would abuse him, or would abandon him “again”, and he would be helpless as he would then be alone in a foreign country.  He was also worried that he could no longer see the foster mother if he left Hong Kong.

47.Notwithstanding the above, Ms Lam came to the opinion that the Child did not resist the adoption plan and that what he resisted, in fact, was his fear towards the uncertainty, and that lots of work was needed to prepare him to face the transition.

48.However, in light of the contents of the Progress Report and further in light of the Child’s present age, and also there is a lack of any updated SWR (including any report as to the Child’s G6PD and ADHD), this Court became concerned and that it was under those circumstances that the Official Solicitor was directed to represent the Child separately.  I will further elaborate on why the Child should be separately represented and by the Official Solicitor later. 

49.On the other hand, D had been given quite a long time since his signing the Undertaking in June 2017 for him to take steps to apply for paternal rights.  He had failed to do so, which led to the Director issuing the present application.  At the 1^st Hearing, he was given further time by this Court.  Even though he would not be released until November this year, there was no reason why he could not have applied legal aid again, or in any event why he could not act in person to apply for a declaration of his paternal rights under section 3(1)(c) of GMO.

50.D is at present only the putative father of the Child who was born out of wedlock and who under our antiquated legislation, is still being referred to as “illegitimate” which in some other parts of the world, is discriminatory.

51.Section 3(1)(c) and (d) of GMO state as follows:

“(c) where the minor is illegitimate—

(i) a mother shall have the same rights and authority as she would have by virtue of paragraph (b) if the minor were legitimate;

(ii) a father shall only have such rights and authority, if any, as may have been ordered by a court on an application brought by the father under paragraph (d);

(d)  the Court of First Instance or a judge of the District Court may, on application, where it is satisfied that the applicant is the father of an illegitimate child, order that the applicant shall have some or all of the rights and authority that the law would allow him as father if the minor were legitimate.”

52.In any event, even if D is now serving his sentence, there were no reasons why he could not seek assistance from the Prison Authority to try and make an application under Section 3 (1)(d) above, and later when he is released, he can then apply for custody, care and control of the Child under section 10(1) of GMO.

53.Suffice to say, D should be  aware of the effect of an adoption of the Child in that it would result in the termination of any legal relationship, if indeed there was any, between him and the Chid.  Yet, by the 2^nd Hearing, D had not taken any steps at all in relation to an application for his paternal rights, nor did he indicate any further intention or wish to do so.  Further, he indicated no objection to the orders sought by the Director.  In light of D’s attitude and failure to take any legal steps, this Court came to the view that D had abandoned all his rights, if any, in relation to the Child, and that in all the circumstances of this case, D’s consent ought to be dispensed with under section 6(1) of the Ordinance, and an order was accordingly made under section 5A(1) declaring the Child free for adoption.

54.However, this does not necessarily mean that it is in the best interests of the Child to be adopted, in particular an intercountry adoption.

The separate representation of the Child

55.Firstly, even though the Director has been appointed the legal guardian under section 34(1) (a) of PCJO, this will not oust this Court’s jurisdiction in relation to the appointment of a guardian of or otherwise in relation to the custody or control of or access to any child or juvenile, as seen under section 36 of PCJO.  Having said this, what this Court directed at the 1^st Hearing was not the appointment of a separate guardian for the Child.  What this Court directed was that the Child should be separately represented, and by the Official Solicitor as his guardian ad litem.

56.Secondly, even though the Director is the legal guardian of the Child under PCJO, he may not necessarily be the appropriate person to be the Child’s guardian ad litem.  This is not unlike a situation when even a child’s own parent may not be considered to be the appropriate guardian ad litem for that child who needs separate representation.

57.As said earlier, this Court became concerned in light of the contents of the Progress Report, the age of the Child and the Child’s attachment to his foster mother, and the lack of any updated SWR, and it was under all those circumstances that this Court directed that the Child be separately represented. 

58.I would also refer to paragraphs 5 and 6 of PDSL 6: Guidance on Separate Representation of Children in Matrimonial and Family Proceedings (“PDSL 6”), which state as follows:

“The role of the guardian ad litem

5. The role of the guardian ad litem is to represent the child’s interests (which may not always accord with the child’s own views) and the guardian ad litem will have the benefit of legal representation. The primary purpose of the appointment is to ensure that the child’s perspective is actively pursued in court.

6. The primary duty of a guardian ad litem is to represent the child’s interests which are likely to be conveyed to the court in a report which should have regard to the welfare checklist referred to in P v P (Children: Custody) [2006] 2 HKFLR 305 and SMM v TWM (Relocation of Child) [2010] HKFLR 308.  The report must not be disclosed to anyone other than a party to the proceedings without the leave of court.  Whether the report is disclosed to the child will depend upon his/her age, maturity and intellectual capacity. The appointment of the guardian ad litem is limited to the duration of the proceedings so that it is no longer effective once these are concluded.”

59.Further, paragraph 11 of PDSL 6 states that :

“The role of the Official Solicitor as a child’s separate representative is twofold: as an officer of the court the Official Solicitor investigates how the child’s interests are best served while simultaneously representing the child’s views as his solicitor in the proceedings.”

60.The “Matrimonial Proceedings” and “Family Proceedings” in PDSL 6 should follow those terms defined in PD 15.12, and under paragraph 4 thereof, “Family Proceedings” include proceedings issued under the Ordinance.

61.In the present case, the Director is the legal guardian of the Child, and further the SWR and the Progress Report were both prepared by the Social Welfare Department. I am of the view that the Child should be separately represented to ensure that the Child’s wishes and opinions be further independently canvassed, and that for this purpose, the appropriate guardian ad litem for the Child is the Official Solicitor.  

62.In any event, there was no objection from the Director for the Child to be separately represented, and by the Official Solicitor, nor was there any objection by the Official Solicitor to represent the Child.

Functions of the Court under the Ordinance

63.The Ordinance has undergone some major amendments in 2005 in introducing a new Part 5 and to bring in certain provisions of the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption done at the Hague on 29 May 1993 (“Convention”) or such amendments which may be made thereto and as applied to Hong Kong.  Those provisions of the Convention which apply to Hong Kong are set out in Schedule 5 to the Ordinance. 

64.Section 8(1) of the Ordinance states that the Court before making an adoption order shall be satisfied :-

“(a) …

(b) that the order if made will be in the best interests of the infant, due consideration being for this purpose given to the wishes and opinions of the infant, having regard to the age and understanding of the infant;

(ba) …

(c)  …”

65.The “adoption order” referred to in the above section is in relation to an order for the adoption of an infant in Hong Kong.

66.As for intercountry adoption, Article 4 of the Convention sets out as to the criteria of an adoption which is to take place within the scope of the Convention:

“An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin—

(a) have established that the child is adoptable;

(b) have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child’s best interests;

(c) have ensured that—

(1) the persons, institutions and authorities whose consent is necessary for adoption, have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin,

(2) such persons, institutions and authorities have given their consent freely, in the required legal form, and expressed or evidenced in writing,

(3) the consents have not been induced by payment or compensation of any kind and have not been withdrawn, and

(4) the consent of the mother, where required, has been given only after the birth of the child; and

(d) have ensured, having regard to the age and degree of maturity of the child, that—

(1) he or she has been counselled and duly informed of the effects of the adoption and of his or her consent to the adoption, where such consent is required,

(2) consideration has been given to the child’s wishes and opinions,

(3) the child’s consent to the adoption, where such consent is required, has been given freely, in the required legal form, and expressed or evidenced in writing, and

(4) such consent has not been induced by payment or compensation of any kind.”

(emphasis added)

67.Notwithstanding the introduction of Part 5 on the Convention Adoption in 2005, and various other amendments since, there has not been an overhaul of the provisions of the Ordinance for some time, and some of the provisions in the Ordinance were based on the 1950 Act in UK.

68.However, there have been some major amendments in UK on the law relating to adoption since 1950, and in particular in 2002, the Adoption and Children Act 2002 (“2002 Act”) was brought in. 

69.Suffice to say, Section 1 of the 2002 Act stipulates that in “coming to a decision relating to the adoption of a child”, the following provisions shall apply:

(1)  the paramount consideration must be the child’s welfare (which in our case has been amended to “best interests” in 2012), throughout his life -  section 1(2) of the 2002 Act;

(2)  the court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child’s welfare [or in the case of Hong Kong, best interests] -  section 1(3) of the 2002 Act;

(3)  the court or adoption agency must have regard to the following matters (among others):

“(a) the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding),

(b) the child’s particular needs,

(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,

(d) the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant,

(e) any harm (within the meaning of the Children Act 1989 (c 41)) which the child has suffered or is at risk of suffering,

(f) the relationship which the child has with relatives, [F2 with any person who is a prospective adopter with whom the child is placed], and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—

(i) the likelihood of any such relationship continuing and the value to the child of its doing so,

(ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,

(iii)  the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.”

(section 1(4) of the 2002 Act)

70.Further, as seen in section 1(5) of the 2002 Act, an adoption agency in Wales in placing a child for adoption, must also give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background.

71.As set out  in the Explanatory Notes of the 2002 Act[8], the above checklist in section 1(4) of the 2002 Act (“Adoption Checklist”) is modelled on the equivalent provision in the Children Act 1989 but is tailored to address the particular circumstances of adoption. 

72.Our legislation in relation to children is long overdue for an overhaul, and as seen in the March 2005 Law Reform Commission Report on Child Custody and Access, Recommendation 5, the “Welfare Checklist” in the Children Act 1989 was recommended to be introduced into our legislation. Notwithstanding the recommendation, 15 years later, the “Welfare Checklist” has not yet found its way into our legislation.

73.However, as seen in paragraph 6 of PDSL 6, the Welfare Checklist has long been accepted and adopted by our Courts in considering the best interests of a child in any child related proceedings. 

74.As set out earlier, the Adoption Checklist which the UK Courts have to have regard to is in relation to “coming to a decision in relation to the adoption of a child”.  As seen in section 1(7) of the 2002 Act, this phrase may not be limited to an adoption order, and may include a decision on any matter leading to an adoption order.

75.To summarise, I am of the view that in considering the best interests of any child in relation to any proposed adoption, whether in terms of an  adoption order to be made in Hong Kong, or in the terms of any orders sought in relation to a Convention adoption, in considering the “best interests” of the relevant child under section 8(1)(b) or the provisions under Article 4 of the Convention, the “Adoption Checklist” should be adopted by the Court in relation to coming to a decision on any matter   concerning the proposed adoption of the child. 

Inherent jurisdiction of the Court

76.Although the present proceedings are not wardship proceedings, they concern a child who was born in Hong Kong of Hong Kong parents in that at least the Mother was born in Hong Kong.  The Child holds a permanent Hong Kong Identity Card and has never resided outside Hong Kong. Unless there are any submissions to the contrary, I am of the view that this Court has parens patriae, or inherent jurisdiction over the Child in relation to his proposed adoption.

77.In any event, although this Court had granted an order to dispense with D’s consent and for the Child to be freed for adoption under section 5A of the Ordinance, whether an adoption, particularly a Convention Adoption, is in the best interests of the Child is another matter, bearing in mind the Adoption Checklist. 

78.In my view, unless there are any submissions to the contrary from the Director or the Official Solicitor within the next 14 days, I direct that prior to any further application made in relation to the proposed adoption of the Child, there should be an updated SWR and a further updated Progress Report, and the Official Solicitor should also prepare an Official Solicitor’s Report, and that all these reports should be prepared with the Adoption Checklist in mind.

79.I also direct that any future application concerning the Child is to be fixed before this Court, if practicable.

80.Further, I direct a copy of these Reasons (anonymised) be published and uploaded to the Legal Reference website, unless written objection is received from the Director or the Official Solicitor within 14 days hereof.  

81.Finally, a Chinese translation of these reasons is being prepared and will be sent to D as soon as it is available.

Ms Christine Wong, Government Counsel of the Department of Justice, for the plaintiff

The defendant appeared in person

Ms Ip Lai Yee Eunice of Official Solicitor, for the infant