Director of Social Welfare v. Lpk

HCAD 26/2022, HCAD 27/2022,
HCAD 19/2023, HCAD 20/2023,
HCAD 21/2023, HCAD 33/2023 &
HCAD 34/2023

[2025] HKCFI 3344

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADOPTION PROCEEDINGS NO 26 OF 2022, 27 OF 2022, 19 OF 2023, 20 OF 2023, 21 OF 2023, 33 OF 2023 AND 34 OF 2023

________________________

________________________

BETWEEN

(Heard Together)

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J U D G M E N T

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Contents Paragraph

A.   BACKGROUND............................................................................ 1

B.  UPDATED INFORMATION OF THE CHILDREN...................... 16

C.  OPINION OF COUNSEL FOR THE OFFICIAL SOLICITOR....... 30

D.   STATUTORY FRAMEWORK FOR ADOPTION......................... 36

E.  ENGAGEMENT ISSUE............................................................... 37

F.  THE BREACH ISSUE.................................................................. 59

G.   SAFEGUARD ISSUE................................................................... 74

H.   CARE PLAN AND PLACEMENT CHOICES............................... 75

I.  RESTRICTION ON SIBLING CONTACT JUSTIFIABLE............ 96

J.  CONCLUSION........................................................................... 109

A.   BACKGROUND

1.People who have siblings will understand the joy and challenges that come with growing up together, which also shape their character, value and perception towards the meaning of a “family”. 

2.Unfortunately in the case of abandoned children, there appears to be a tension between establishing sibling relationship and preparing them for adoption. 

3.This is the adjourned hearing to deal with the Director’s application for freeing orders in HCAD 33 and 34 of 2023 for the 6^th and 7^th Children, and applications as regards future adoption of the Children.  The adjournment arose because, in the decision dated 2 February 2024, this Court raised concerns as to the human rights of the Children to have access to their siblings, at least before adoption was carried out, and their rights to a family that the society should protect.

4.The subject Children are 7 siblings, now aged between 2 and 9.  They are all born out of the same father and mother who have not been married.  The Director, as legal guardian of all the Children, commenced 7 sets of proceedings to seek orders declaring them free for adoption (“freeing orders”)  under section 5A of the Adoption Ordinance, Cap 290 (“AO").  The factual background have been summarized in 3 judgments in (i)  HCAD 26-27/2022 dated 17 March 2023, Au-Yeung J; (ii)  HCAD 19-21/2023, dated 3 August 2023, B Chu J; and (iii)  HCAD 33-34/2023, dated 2 February 2024, Au-Yeung J. 

5.The parents were drug abusers and the birth of the 7 Children came about as a result of unplanned pregnancies.  All but the 2^nd Child were tested positive with drugs at birth and were found to be victims of child maltreatment.  Out of home care was recommended for each of the children.  The parents have plainly abandoned them.  The legal requirements for dispensing with consent of the mother and declaring the children free for adoption have been met.  Adoption appears to be, as the facts stand, in the best interests of the 7 Children.

6.The consequences of a freeing order are that the legal ties between a child and his/her parents are severed, allowing, by court order, the opportunity for  the child to be placed for adoption, with the risk of impacting the child’s sense of identity and emotional wellbeing.  Insofar as sibling relationship is concerned, if the 7 Children are placed with different adoptive parents, the sibling relationship will also end in law.

7.Therefore, the fact that the Court is satisfied that any necessary consent should be dispensed with does not make the Court a rubber stamp to allowing the freeing application: DSW HJX [2021] 1 HKLRD 519, §30, B Chu J.

8.When dealing with the 4^th and 5^th Children in HCAD 26 and 27/2022, notwithstanding that freeing orders were made, I expressed the following concerns:

“29. My greater concern is that these 6 children have been living in different institutions or with foster families, have never met one another and are not even aware that they have siblings. The reasons are twofold: they have to be placed according to the age requirement of an institution and the pandemic prevented face-to-face meetings.

30.  Whilst this Court understands the difficulties faced by the Director and that she might not have foreseen so many children born to the same parents (or the same mother), the Court invites the Director to consider the human rights of abandoned/neglected child with one or more siblings.  In particular, the right to  protection of family under Article 14 of the Hong Kong Bill of Rights Ordinance, Cap 383 may be engaged.  One cannot exclude the possibility that children, by nature or by proper guidance, may be willing and able to build their own families with siblings despite being abandoned or neglected by their parent(s).  I shall reserve my views on the law until a proper occasion in future.  The Court invites the Director to consider placing the children of this family yet to be adopted in the same institution or at least arrange regular meetings for them.”

9.The 7^th Child was born just a week before the Judgment in HCAD 26/2022 concerning the 4^th and 5^th Children was handed down.

10.When the applications for freeing orders in the present case in respect of the 6^th and 7^th Children came before me, I invited the Official Solicitor to be the next friend of the 7 Children and address the following issues (“the Issues”):

(a)  Whether there are human rights in relation to the Children, especially the right to protection of family under Article 14 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR14”), which are called into question in the present case (“Engagement Issue”);

(b)  Whether any of those rights have been breached (“Breach Issue”); and

(c)  What are some of the minimum measures to ensure that those rights can be safeguarded (eg regular meetings of the children, putting them into one residence with day care by institutions / foster parents, putting them into as few institutions as possible)  (“Safeguard Issue”)?

The Official Solicitor was empowered to investigate facts and interview the 7 Children for the purpose of preparing the OS Report.

11.The Official Solicitor filed the OS Report after having obtained the Joint Legal Opinion and Supplemental Joint Opinion (collectively “Legal Opinions”)  of Ms Sara Tong SC and Mr Cedric Yeung dated 25 March and 29 April 2024, respectively.

12.The Director has further filed the 3^rd affirmation of Ms Fong Ho Yin (“Fong-3^rd”), the social worker handling the Children’s cases.  Clinical psychologists have been engaged to assess the 1^st, 2^nd and 6^th Children for their suitability for adoption.  The finding is that they are all assessed to be suitable for adoption, having regard to the Adoption Checklist.  There will be little risk for relinquishing their ties with their original family, given the parents’ detached attitude, poor input in child care and nil family support.

13.For the 3^rd to 5^th Children, the Director has not provided clinical psychologist reports as those Children had already been successfully matched with local adoptive families and/or were in the course of integrating into those families.

14.With the benefit of the Legal Opinions and assessments from clinical psychologists, the Director submits that it is in the best interests:

(1)  of the 6^th and 7^th Children to be declared free for adoption; and

(2)  of all the Children for there to be no arrangement for sibling contact unless and until the adoption of 2 or more siblings by the same family or families becomes a realistic option.

15.At this hearing, I have granted an adoption order in respect of the 5^th Child.  I have also granting freeing orders in respect of the 6^th and 7^th Children.  Subsequent to this hearing, I have granted an adoption order in respect of the 4^th Child. 

B.   UPDATED INFORMATION OF THE CHILDREN

16.Their present positions of the Children are tabulated as follows:

Child name/sex/ DOB/education	Case no.	Current status
1st to 3rd Children LLT (███)  (F), ██.2016, ██ TLS (███), (F), ██.2017, ██ TCN (███)  (M), ██.2018, ██	HCAD 19-21/2023	Freeing orders made by B Chu J on 3 August 2023 1st Child matched with local adoptive family (with a ██ year old daughter); living with adoptive family since June 2024 pending commencement of adoption placement 2nd Child –local and overseas matching done in parallel;in Children’s home in ████ ███ ██[1] 3rd Child – local and overseas matching done in parallel; in foster care (proposed siblings adoption of 2nd and 3rd Child)
4th Child TTY (███)  (F), ██.2019, ██	HCAD 27/2022	Freeing order made by Au-Yeung J on 17 March 2023 Local adoption order made on 20 February 2025 after this hearing
5th Child LLY (███)  (F), ██.2020, ███	HCAD 26/2022	Freeing order made by Au-Yeung J on 17 March 2023 Local adoption order made at this hearing by Au-Yeung J
6th to 7th Children LLY (███)  (F), ██.2021 LWY (███)  (F), ██.2023	HCAD 33 and 34/2023	Freeing orders made at this hearing (See decision dated 2 February 2024 in the present case for reasons for adjournment to this hearing.) Matching exercise under way.  6th Child – under long-term placement in ████████████████████ (“█████”) 7th Child - foster home

17.All 7 Children are now living apart from one another.  The 3 elder Children are aware that they have siblings and can still remember some of their siblings’ names.  However, their memories are vague and unreliable.  Some got the total number of siblings wrong; others cannot remember all the names.  The 4 younger Children are not even aware that they have siblings and do not appear to have any closer personal ties among themselves, not to mention bonding with the original family. 

18.The 3 elder Children express a wish to meeting their siblings and to play with them. The 4^th Child does not resist the idea of meeting but is not very keen about it.  The 3 youngest are too young to express a view.

19.The 1^st Child has lived in ████ ████ ████ ███(“████”)  in Fanling for over 4 years.  She appears to be satisfied with her present life there.  She expresses interest in learning about adoption and inquired of Ms Fong when she could have new parents.  At the age of 9, the 1^st Child’s concept of adoption is shallow as she only learnt it from her friend who was recently adopted by parents in the US after the pandemic.   Although US is a foreign place the 1^st Child expressed no fear of going there.  She would miss the caregivers and other Children in ████ though.

20.The 2^nd Child is living in a children’s home with 8 children in ███ ███ ██.  The home comprises 2 public housing units and is headed by a pair of house parents who also live there with their own children.  A chef is hired to prepare meals and a tutor to provide guidance on homework.  The 2^nd Child is happy there.  She has no memory of her biological parents.  She got her number of siblings and her own rank among them wrong. 

21.At the age of 6, the 2^nd Child’s concept of adoption is shallow.  She wants to take a place where she can enjoy buffets and being served with meals. She has concerns that her English is poor but she says she can simply ignore matters that she does not understand and not to pay attention to people.

22.The 3^rd Child has been under foster care for 2 years with another boy who is 3 years older than him.  The 3^rd Child has developmental delay and respiratory problem but enjoys stable health.  He needs regular follow up at the eye clinic for post-hernia operation and annual check up at the genetics unit. 

23.He is happy at the current foster home.  He rejects the idea of leaving the foster home and finding new parents.  Later the foster mother told the Official Solicitor that the 3^rd Child well understood that foster home is not meant to be a permanent place for him.  He has told his foster mother that he would keep contact through zoom meeting if they were to separate in future; and that he would drive a car and bring his foster parents to “yum cha” after he grew up.  The foster mother comments that the 3^rd Child has good adaptive ability and that he could quickly adapt to living with a new family without much problem.

24.The 4^th Child has been in foster home for about 1 ½ years.  She has now been adopted. 

25.The 5^th Child has been at the Babies Section of PLK for about 3 years.  She has now been adopted. 

26.The 6^th Child has been in █████ for about 2 years but, owing to the age limit, she will have to change institution soon. 

27.The 7^th Child has been under foster care for about a year; the foster parents have another 6 year old foster son.

28.The respective adoptive families for the 1^st, 4^th and 5^th Children indicated no intention to adopt the 2^nd and 3^rd Children. The 2^nd and 3^rd Children have been referred for siblings overseas adoption since June 2024 in parallel with local matching.  For the 6^th and 7^th Children, the Adoption Unit will seek the views of those adoptive families on the possibility of siblings placement.  If siblings placement is possible, the Adoption Unit will consider arranging siblings’ contact before commencement of the placement.

29.Here are my reasons for granting the freeing orders of the 6^th and 7^th Children adoption orders in respect of the 4^th and 5^th Children and my views on the Issues.  I am most grateful to all counsel (including Ms Cheng)  for their assistance.  I can do no better than to quote their legal propositions, which are all correct in my view.

C.   OPINION OF COUNSEL FOR THE OFFICIAL SOLICITOR

30.Children enjoy the constitutional protection of human rights under the Basic Law of Hong Kong and the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR”): FH v WB [2019] HKCFI 1748, §§89-102, Au-Yeung J.

31.In this case, the Children have been living in different institutions or with foster families.  They have not met one another and some are not even aware that they have siblings.  In other words, the care arrangement lacks sibling contact (“the Arrangement”). 

32.Ms Tong SC (leading Mr Yeung)  have considered 3 types of human rights of the Children:

(1)  The right to protection of family under BOR14;

(2)  The right in respect of family under BOR19;

(3)  The right to protection of privacy under BOR14.

33.Ms Tong SC submit that the Arrangement restrict the Children’s right to protection of privacy under BOR14, but not their rights to protection of family under BOR14 or their rights in respect of family under BOR19. 

34.Counsel do not consider the freeing orders to have violated the children’s BOR14 rights, but they are unable to say whether the Arrangement violates such rights.  It turns on whether the lack of sibling contact is in the best interests of the children, which is a fact sensitive matter and may require expert evidence. 

35.Equally, counsel are unable to determine the minimum measures which are necessary to protect the children’s BOR14 rights.  However, they have offered some general possible options for safeguarding such rights.

D.   STATUTORY FRAMEWORK FOR ADOPTION

36.The relevant considerations for the making of a freeing order have been set out in the 3 Judgments and shall not be repeated here.  On the making of a freeing order, all rights, duties, obligations and liabilities of the parents or guardians of the infant shall vest in the Director as if the order were an adoption order and the Director were the adopter.  The Director or an accredited body may place the infant for adoption, subject to the provisions of the AO.  See s.5A(4)  of AO.

E.   ENGAGEMENT ISSUE

E1.  The right to protection of family under BOR14

37.BOR14 provides as follows:

“No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.”

38.This Article is similar in substance to Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR8”)  which protects, amongst others, the right to respect for family life: FH v WB, § 91, Au-Yeung J.

39.With regard to the term “family”, FH v WB, §96 summarizes as follow:

“(1)  The term “family” should be interpreted broadly.  It does not refer solely to the family home during marriage or cohabitation but also to the relations in general between parents and a child.  Some minimal requirements for the existence of a family are necessary, such as life together, economic ties and a regular and intense relationship:  The International Covenant on Civil and Political Rights, Cases, Materials, and Commentary, 2^nd ed, §20.10.

(2)The existence of family life is a question of fact depending on the existence in practice of close personal ties: Singh v Entry Clearance Officer [2005] QB 608, §20 (CA), in the context of ECHR8; D & G v ED & DD, §41.

(3)  Family life existed between two parents and their children even though the parents had never married, did not cohabit and lived in separate houses: Re X (A Child), at §68, where Munby P considered the equivalent of Article 19 in the context of infants born out of a surrogacy arrangement.”

40.BOR14 does not guarantee either the right to found a family.  The right to respect for family life does not safeguard the mere desire to found a family; it presupposes the existence of a family, but the protection may extend to potential relationships between, eg a child born out of wedlock and his/her natural father, or the relationship that arises from a genuine marriage, even if family life has not yet been fully established.  See EB v France (2008)  47 EHRR 21, §41.  However, a “demonstrable interest in and commitment by” one in another must be established: In re H [2019] 1 WLR 3017 at §39, Cobb J.

41.Intent is important as it means that family life can extend to potential relationships that could have developed eg between a biological parent and his/her child, even where the parent has had no contact with the child after birth: Harris, O’Boyle and Warbrick, Law of European Convention on Human Rights, 4^th ed, 2018, p506.

42.Mere biological kinships, without any further legal or factual elements indicating the existence of a close personal tie, are insufficient to attract such protection: Lebbink v Netherlands (2005)  40 EHRR 18, at §37.

(1)  A biological father who had never seen or formed any emotional bond with his child had no family life with the child: Nylund v Finlande, Application No 27115/95, 29.6.1999, p.14.

(2)  But there were further elements in Lebbink (§§38-40).  The child was born into a genuine relationship between the father and the mother that lasted for about 3 years and the father had been her auxiliary guardian.  Although the father had never cohabited with the mother and the child, he had been present when the child was born, visited her at regular intervals, baby sat her once or twice and had had several contacts with the mother about the child’s impaired hearing.  The court concluded that, in addition to the biological kinship, ties between the father and the child were sufficient to attract the protection under ECHR8. 

43.There is no presumption that a person has a family life, even with the members of his/her immediate family.  The Court has to scrutinise all the relevant factors including the person’s near relatives, the nature of the links between them and the person, age of the person, where and with whom he had resided in the past, and the forms of contact he has maintained with the other members of the family with whom he claims to have a family life.  See Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31 at §§24 and 25, Arden LJ, (as she then was).

44.The right to private and family life is not a theoretical right or one created by kinship alone; it must have body and substance.  The existence of “family life” rights under ECHR 8 is a question of fact. The child has no right to be brought up by his or her birth family.  The only “right” is for the arrangements for the child to be determined by affording paramount consideration to his/her welfare throughout his/her life (in an adoption case)  in a manner which is proportionate and compatible with the need to respect any ECHR8 rights which are engaged.  See Re A (Baby Relinquished for Adoption) [2016] EWFC 47 at §43(vii), Cobb J.

45.The proposition that mere kinships are insufficient to generate a protectable family life is applicable to relationships even where the person seeking protection is not responsible for the lack of personal ties, e.g.:

(1)  Grandparent and grandchild: In Re RA (Baby Relinquished for Adoption), above, the maternal grandmother sought to pursue the care of a child who had been relinquished by his birth parents for adoption but with whom she had not had contact (at §14).  Although the grandmother indicated a “genuine and heartfelt” wish to care for him (at §14)  and regarded the child as part of her “flesh and blood” (at §16).  Cobb J held that she did not enjoy family rights with the child because “her blood relationship to him, albeit not unimportant in many ways, [did] not on its own create a right which [was] entitled to protection under [ECHR 8]” (at §43(viii)(c)).

(2)  Grandparent and grandchild: Similarly, in In re H (A Child) [2019] 1 WLR 3017, the local authority applied to contact the child’s paternal grandparents to notify them of his existence and to ascertain whether they might be in a position to care for him.  Cobb J rejected the contention that the child had a protectable family life with the grandparents under ECHR 8: (i)  there was no de facto relationship between the grandparents and the child and “the real existence in practice of close personal ties” could not be shown (at §46); and (ii)  the potential relationship between them does not create a right to family life either because, “[t]hrough no fault of their own”, there had been no “demonstrable interest in and commitment by” the grandparents in the child (at §39).

(3)  Siblings: in Re TJ (Relinquished Baby: Sibling Contact)  [2017] EWFC 6, the subject child (TJ, 15 months old)  had an older maternal half-brother (PL)  who lived with his birth father and adoptive mother, and with whom TJ had no actual relationship and had never met (at §2).  There was a pending application to adopt TJ and the adoption agency sought permission to withhold TJ’s existence from his birth family, including PL (at §3).  Obviously, the lack of personal ties between PL and TJ was not attributable to either of them.  Cobb J found that PL and TJ did not enjoy interlocking ECHR 8 rights in relation to each other, which required protection:

“While there exists some potential benefit to TJ in having some contact with his half brother even if limited to indirect contact, for identity purposes if nothing else, any such order for indirect contact (under section 51 or otherwise)  would not be founded upon there being any actual relationship between the boys, and would in those circumstances be highly unlikely in itself to create [ECHR 8] rights.” (at §28)

(4)  In the same vein, the Re D (Care Proceedings: 1996 Hague Convention: Article 9 Request) [2021] EWHC 1970, the relevant child (D, 2 years and 6 months old)  was living in a foster home in Switzerland and had an elder brother who had been adopted (F, around 6 years old).  Knowles J found that there was no family life between D and F, given that F had become an adopted child and that there was no existing relationship and/or personal tie which had sufficient substance to create ECHR 8 rights (at §76).  Again, it is obvious that D and F were not responsible for their lack of actual relationship.

46.Notwithstanding the foregoing, it does not follow that at the time of birth, a child had no protectable family life at all:

(1)  Between mother and child: the natural connection between them at birth amounts to family life, which subsequent events cannot break except in exceptional circumstances: Clayton and Tomlinson, The Law of Human Rights (2^nd edn; 2009)  at §13.138.

(2)  Between father and child: where the child was conceived in wedlock or during the course of a stable relationship between unmarried parents, there would be family life as between the father and the child: Pawandeep Singh v Entry Clearance Officer New Delhi [2004] EWCA Civ 1075 at §77, Dyson LJ.  The situation is otherwise if the biological father has never seen or formed any emotional bond with a child conceived during the father and mother’s cohabitation: Nyland, above.

(3)  Between cohabitees and child: the notion of “family life” under ECHR8 is not confined to marriage-based relationships and may encompass other de facto “family” ties where the parties are cohabiting out of wedlock.  A child born out of such a relationship is ipso iure part of that “family” unit from the moment and by the very fact of its birth.  Thus there exists between the child and the parents a relationship amounting to family life: Lebbink v Netherlands (2005)  40 EHRR 18, §35.  

(4)  Among siblings: the broad import of “family unit” indicates that family life may exist as between the child and his siblings at birth insofar as they were conceived in wedlock or living together, even though Ms Tong SC is unable to locate direct authorities on this point; and Lebbink was concerned with a parent-child relationship.

47.Accordingly, the following principles in respect of family life between siblings can be distilled from the authorities above:

(1)  Mere kinship between siblings is insufficient to constitute family life under BOR14 and 19.  The existence in practice of intent, commitment and close personal ties between them must be shown.

(2)  It does not, however, follow that a child has no protectable family life at all at the time of birth.  It exists as between mother and child and may exist among his siblings.

(3)  The potential relationship between siblings may give rise to a protectable family life if there is a “demonstrable interest in and commitment by” one to another.

(4)  A “family” in some form must exist before the right to protection is engaged.

48.In the present case, the Children do not have a protectable family life among themselves.  There is simply no demonstrable interest in and commitment to family life among the 7 Children or any combination of them.  They have not met one another and were not even aware that they have siblings, so there could not be close personal ties among them.  Their biological relationships alone are not sufficient to give rise to a protectable family life.  I find that BOR14 on the right to protection of family is not engaged.

E2.  The right in respect of family under BOR19

49.BOR19(1)  provides that “the family is the natural and fundamental group unit of society and is entitled to protection by society and the State”.

50.While the term “family” should be interpreted broadly, some minimal requirements for the existence of a family are necessary (such as life together, economic ties and a regular and intense relationship)  and some degree of effective family life must exist: Joseph and Castan, The International Covenant on Civil and Political Rights – Cases, Materials and Commentary (3^rd edn; 2013)  at §§20.11, 20.13.

51.As under BOR14, the existence of family life is a question of fact depending on the existence of close personal ties: FH v WB (supra) at §96(2), Au-Yeung J. 

52.Ms Tong SC takes the view that there seems to be no family life as between the Children and hence she does not consider their rights under BOR19 to be engaged.  I agree.

E3.  The right to privacy under BOR14

53.BOR14 protects one’s right to “privacy”.  There is no distinction between this concept of “privacy” and that of “private life” under ECHR8: Sham Tsz Kit v Secretary for Justice (No 1) (2023)  26 HKCFAR 385 at §§138, 155(1)  (Ribeiro and Fok PJJ, with whom Keane NPJ agreed at §253).

54.The notion of private life is a broad concept.  Not only does it encompass the right to formulate a perception of oneself and to choose one’s personal identity (Clayton and Tomlinson, above, at §12.288), but it also comprises the “right to establish and develop relationships with other human beings, especially in the emotional field for the development and fulfilment of one’s own personality”: Harris, O’Boyle and Warbrick (supra) at p.504, citing X v Iceland (Application No. 6825/74, 18.5.1976)  at 88 and Niemietz v Germany (1992)  16 EHRR 97 at p.111, §29.

55.As to relationships between siblings:

(1)  A shared history and experiences promote self-identity and self-esteem because siblings provide support and companionship: Re B (A Child)  (Care Proceedings) [2018] EWCA Civ 20 at §§15 and 20, Munby P (citing the lower Court’s analyses with approval).

(2)  There is strong recognition that sibling relationships are the most enduring or longest lasting relationships in most people’s lives: Re B (A Child)  Case Proceedings, Munby P, §15; St Helens Council v M & Ors [2022] EWFC 167 at §27 (HHJ Greensmith); A Local Authority v A Mother & Ors (unrep., Case No: BH18C00077, 4.1.2019)  at §187(a)  (HHJ Dancey).

(3)  An adoption order has the effect of severing all legal ties between the child and his parents and siblings and, with it, the risk of a damaging impact on the child’s sense of identity and emotional wellbeing: Re T and R (Refusal of Placement Order) [2021] EWCA Civ 71 at §19 (Baker LJ); Kirklees Council v LS [2018] EWFC 12 at §45 (Holman J).

(4)  Upon the making of a freeing order, the legal ties between a child and his parents are severed and he may be placed for adoption: see section 5A(4)  of AO.  This would cause him to lose the potential of relationships with their siblings, which are “extremely valuable”, and their sense of identity as a member of their birth family: Rotherham Metropolitan Borough Council v W [2015] EWFC B115, §84, HHJ D Marson.

56.As with ECHR8, BOR14 imposes a positive obligation on the government to adopt legislative and other measures to protect and give effect to (and guarantee effective protection)  of the substantive rights: Sham Tsz Kit (supra) at §§157,160 (Ribeiro and Fok PJJ).

57.Ms Tong, SC submits that the Children’s rights to privacy under BOR14 are arguably engaged by the Arrangement:

(1)  First, separating the Children (without any contact arrangements)  restricts their BOR14 right as (i)  the Children have the right to establish and develop relationships with each other as siblings, which are valuable and important for their formation of self-identity; and (ii)  the separation occasioned by the Arrangement prevents the enjoyment of such a right.

(2)  Second, the lack of positive measures to enable contact between the Children also engages their BOR14 right, as (i)  the government is under a positive duty to ensure their effective enjoyment of such a right; and (ii)  this duty has not been fulfilled as it appears that no steps have been taken to facilitate the formation of relationships between the Children.

58.The freeing orders arguably restrict the BOR14 rights of those Children who are subject to freeing orders because (i)  they are now being placed for adoption; (ii)  they are thus at risk of losing all legal ties with their siblings, as well as a potential relationship with them a sense of identity as a member of their birth family; and (iii)  these are all protected by the right to privacy under BOR14.

F.   THE BREACH ISSUE

F1.  The “prescribed by law” requirement

59.Pursuant to Article 39(2)  of the Basic Law, a restraint upon fundamental rights must satisfy the “prescribed by law” requirement so as to be lawful.  This has two separate limbs and the relevant principles are stated in Chee Fei Ming v Director of Food Environmental Hygiene [2020] 1 HKLRD 373 at §23 (Lam VP, as he then was), citing Sunday Times v United Kingdom (1979-80)  2 EHRR 245 at §49.

(1)  The law must be adequately accessible, in that the citizens must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case;

(2)  A norm cannot be regarded as a law unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: Chee Fei Ming, at §23.

60.In this regard, a law which confers discretionary powers on public officials, the exercise of which may interfere with fundamental rights, must give an adequate indication of the scope of discretion.  The degree of precision required of the law in this connection will depend upon the particular subject matter of the discretion: Chee Fei Ming, at §27, citing Leung Kwok Hung v HKSAR (2005)  8 HKCFAR 229 at §29.

61.In the present case, I agree with Ms Tong SC that the Arrangement satisfies the “prescribed by law” requirements:

(1)  Pursuant to section 34(5)(a)  of the Protection of Children and Juveniles Ordinance (Cap 213), where the legal guardianship of a child is vested in the Director, he may make any order regarding the custody and control of the child which he thinks desirable in the interests of the child.

(2)  Since the Director is the legal guardian of the children,[2] the Arrangement would have been made pursuant to this statutory power.

(3)  This statutory power does not fall foul of the “prescribed by law” requirement, given that (i)  it is contained in a statute which is accessible to citizens; and (ii)  the statutory provision contains express and clear limitations as to the scope of the power (namely, the “custody and control of the child”)  and the standard by which such power should be exercised (namely, “interests of the child”).

62.Similarly, the freeing orders satisfy the “prescribed by law” requirements in that (i)  they were made pursuant to section 5A of AO, a statute accessible to the citizens; and (ii)  sections 5A and 6 of AO contain express and clear criteria as to when an order would be granted.

F2.  The proportionality test

63.Where constitutional rights are restricted, such restriction can only be lawful if it satisfied the proportionality test laid down in Hysan Development Co Ltd v Town Planning Board (2016)  19 HKCFAR 372 at §§134-135 (Ribeiro PJ):

(1)  The restriction serves a legitimate aim;

(2)  It is rationally connected to the legitimate aim;

(3)  It is no more than is necessary to accomplish that legitimate aim; and

(4)  It strikes a reasonable balance between the societal benefits of the encroachment and the inroads made into the constitutionally protected rights of the individual, asking in particular whether pursuit of the societal interest resulted in an unacceptably harsh burden on the individual.

64.Insofar as children’s rights are concerned, the proportionality test is satisfied where the adoption order is considered to be in the best interests of the child.  A court that has correctly afforded paramount consideration to the best interests of the child throughout his/her life before concluding that adoption is required would have identified a legitimate aim for the restriction (namely, the need to safeguard and promote the child’s best interests)  and the conclusion represents the court’s considered view on proportionality.  See, in the context of adoption, Re B (A Minor) (Adoption: Natural Parent) [2002] 1 WLR 258 at §31 (Lord Nicholls).

65.When determining whether a restriction is in the best interests of the child in any child-related proceedings, a court would consult the “Welfare Checklist”: Director of Social Welfare v YPC [2020] 5 HKLRD 249 at §73 (B Chu J).

66.When ascertaining the best interests of a child in “any matter concerning the proposed adoption of the child”, a court would consult the “Adoption Checklist”: DSW v YPC, at §75. 

67.The Adoption Checklist specifically provides that the Court and adoption agencies must have regard to, amongst others: (i)  the likely effect of the child (throughout his life)  of having ceased to be a member of the original family and become an adopted person (item (c)); and (ii) the relationship which the child has with relatives, including the likelihood of any such relationship continuing and the value to the child of its doing so (item (f)(i)).

F3.  Whether the Arrangement and freeing orders are in breach of BOR14 

68.In the present case, the first 4 Children were put into the same institution, each up to the age of 3.  At that young age, they could not take care of one another. Their positions were no different from unrelated children placed into the same kindergarten.  They could no longer be placed together thereafter. The other Children had not resided together.  The situation was exacerbated by the COVID pandemic which prevented access. Without e.g an elder sibling able to take up responsibility, there was no opportunity for the Children to “build their own family”.

69.Whether the complete absence of sibling contact is in breach of the Children’s BOR14 rights as to privacy depends on whether the Arrangement is in their best interests.

70.Ms Tong SC draws my attention to Re A, B, C, D and E (Children: Placement Orders: Separating Siblings) (unrep., Case No: DE16CO0355, 15.3.2018), §75, HHJ Judge Bellamy:

“74. Separating siblings is not a step that is ever lightly taken by the Court. Separation of siblings may make the local authority’s task of identifying suitable placements somewhat easier but the starting point… is that ‘generally siblings being placed together’, if at all possible, is preferable…

75.  Every family is different.  In any particular case there may be factors that make the objective of keeping a sibling group together unrealistic or inappropriate.  These factors may include, for example, the size of the sibling group, the wide age range of the sibling group, the ethnic diversity of the sibling group, the fact that children in the sibling group have different fathers, the special needs of a child who is part of the sibling group or a professional assessment that it is in the welfare interests of the children concerned that they should be separated.  These are illustrations.  The list is not intended to be exhaustive.  The court must focus on the needs and welfare of the individual children whose future it is determining.”

71.It cannot be assumed that sibling contact is invariably in the best interests of a child. There are cases where separation between siblings was ordered in light of the specific circumstances, eg:

(1)  In Leicestershire County Council v D (unrep., Case No: LE13CO1377, 29.8.2014)  at §24, HHJ Bellamy, sibling bond was not close.  There was clear evidence, including evidence from experienced foster carers, that placement of the 2 children together would give rise to a real risk of one child’s progress being impeded by his half-sister.

(2)  In Re M (A Child) (unrep., Case No: NE15C00308, 2.3.2016)  at §16, HHJ Simon Wood, the child’s pressing need for permanent parents had to take precedence over the desirability of ongoing contact with his birth family:

72.With regard to the restriction on sibling contact, whether it is in the best interests of the Children is a question that Ms Tong SC is not in a position to answer without expert evidence.  It is for the Director to demonstrate by reference to the factors in the Adoption List, failing which there may be a violation of the right to privacy under BOR14.

73.With regard to the freeing orders, Ms Tong SC is of the view that there is no violation of such rights, since the Court has taken the view that adoption is in the Children’s best interests.[3]  Any restriction of their rights under BOR14 would be proportionate.

G.   SAFEGUARD ISSUE

74.Following on from paragraph 72, Ms Tong SC is unable to give an opinion on the minimum measures which are necessary to protect the Children’s BOR14 rights.  She has given some proposals.  In gist,

(1)  The minimum measures required may differ depending on their individual needs of a child. At one end of the spectrum, the best interest of the child may require the siblings to be apart rather than together.  At the other, in circumstances where sibling contact is essential to the well-being of the child, the Court may place the siblings for long term foster care rather than adoption.

(2)  Options which lie between the two ends include: (i)  post-adoption sibling contact orders; and (ii)  sibling contact orders pending adoption.

(3)  The best option for an individual child should be determined by a welfare assessment based on his/her specific circumstances.  The judicial task is to evaluate all the options, undertaking a global, holistic and multi-faceted evaluation of the child’s best interests.

It is not necessary to examine them because, as shown in the next section, the Director has done all these, if not more.

H.   CARE PLAN AND PLACEMENT CHOICES

75.The Director agrees with the Legal Opinions.  In particular, she acknowledges that the Children’s right to privacy under BOR14 is engaged in that they have the right to establish and develop relationships with one another as siblings and the Arrangement restricts such right.  The key issue is whether such restriction is in the best interests of the Children.

76.Subsequent to the Legal Opinions, the Director seeks to address that issue by filing Fong-3^rd and obtaining clinical psychologists’ reports for 3 Children.

H1.  The Director’s considerations on placement

77.The Director adopts a permanency planning approach when considering out-of-home placement for a child.  This is a systematic process of carrying out a timely and goal-directed activities for care planning to maintain a child in his own home or live in a stable and home-like environment that offers continuity of relationships with nurturing parents or carers and the opportunity to meet the children’s developmental needs and establish life-time relationships.

78.When professionals plan to refer a child for residential child care services, the best interests of the child is of paramount concern.  If a child cannot remain living with his/her biological family or cannot be adopted, long term suitable care, as a last resort, has to be planned thoroughly and opportunities for ongoing contact with his/her family should be built into the care plan.

79.Factors to be considered in deciding placement include but are not limited to the child’s age, physical, mental and emotional conditions, behavioural and developmental needs, the needs for arranging siblings in the same placement, preference indicated by the child and the parents/guardians, vacancy available according to the gender and age range of the child, etc.  The placement choice for each child should be assessed and decided according to the circumstances and characteristics of the individual case.  Social workers and related professionals should continue to review the placement regularly to ensure that the type of placement arranged for the child best meets his/her need.

80.Ms Fong assures the Court that adoption is not the necessary destination for every child.  The above principles were and are taken into account when considering the placements for the 7 Children.

81.According to Fong-3^rd, initially, the 4 older Children had once been placed in the same institution at the ███████████████ (“███”)  of the ████ with an age limit of 3.  Foster care was not chosen then to guard against the risk of their parents disturbing the foster parents. 

82.Upon reaching the age limit, the Children were moved out one by one to other institutions.  The 2^nd Child was put on waiting list at the same institution as the 1^st but, unfortunately, no placement was available at that time and she had to move to another institution.

83.Group foster care was explored for the 3^rd and 4^th Children as it was clear at that time that the parents did not intend to contact the children at all, and hence their risk of their disturbing the foster parents was low.  However, there was no available foster home for group placement and so the 3^rd and 4^th Children were placed in different foster homes.

84.Generally speaking, it is preferable to have children at tender age being subject to foster care where they can enjoy stable care in a home-like environment.  On the other hand, the manning ratio of small group home was less intensive and the children had to be more mature in self-care.  Small group home was thus considered not to be in the Children’s best interests at that juncture.

85.The 3 younger Children were all placed at New Comers’ Ward of PLK after birth since no emergency foster home could be located after their discharge from hospital. They have been put on waiting list for the same institution or group placement of foster home.  As no available placement could be found, the 5^th Child and 6^th Child were placed at different institutions. The 7^th Child was given foster care as it fortunately was available at the time of her discharge from hospital.

86.When the 1^st to 3^rd Children reached the maturity to have basic understanding of sibling relationship, the case worker did inform them of the existence of siblings at different occasions and would, eg show them photos of the younger siblings.

87.The Director has considered various options on placements:

(1)  Family reunion or relative support is not viable.  It is clear with the lapse of time that the parents have no intention to reunite with the 7 Children.  As drug abusers, the parents are unlikely to have any children care ability.  The only traceable relative is the grandmother, who does not show any concern over the Children’s conditions and expressed no capacity to assist with child care.  She became untraceable after the social worker’s last telephone contact in December 2021.

(2)  Institution care is also not viable.  Due to age limits and wide age range, the 7 Children cannot be placed together for a long time to allow any building of siblings’ relationship.  Even at PLK (for children aged 0-18), they would have to be placed at 3 different sections and live separately according to their respective age, to meet their different levels of personal care. The quality and intensity of care at institutions are generally not comparable to that of foster care due to group size of the children and the available carers at the institution.  The frequent change of living environment and carers are not conducive to the children’s healthy development.

(3)  Foster care is a better option given the quality and intensity of care that can be provided to children to suit their respective needs.  It is not always available given the inadequate number of foster families in Hong Kong and the limitation as imposed by the size of their residential premises.  Although this option is always considered by the social worker, it is difficult, if not impossible, for 7 Children to be taken care of by the same foster family. Further, stability cannot be guaranteed by foster care, which is only a temporary arrangement terminable by the foster parents by serving one month’s notice.  The frequent change of living environment and foster carers are not conducive to the children’s healthy development.  As the 3^rd, 4^th and 7^th Children are of tender age, it is unrealistic to assess the option of having foster care until each of them reaches 18.

88.Adoption, with its quality of care and stability of upbringing in a family environment with a permanent home and lifelong and stable support, is considered to be in the best interests of the 7 Children.  The adoptive parents can give a father and mother figure which foster parents cannot.  The adoptive parents can also attend to individual developmental needs of a Child.  It will minimize the risk of psychological harm to the Children caused by the change of placements.  Given that they are healthy and are clinically assessed to be suitable for adoption, the chance of adoption is optimistic.

89.The matching panel will first consider if there is any suitable local adoptive parents.  If not possible, separate adoptive families will be found for each Child.  If local adoptive families are not available, the Children will be referred for inter-country adoption with a view to placing them in the same overseas family, while attempts are made at the same time to match with local homes. The Adoption Unit will give priority to local adoption over overseas adoption, for all of the Children.

90.The Adoption Unit will also explore the views of the local adoptive family which has already adopted an elder sibling to see if the family plans for a second adoption.  This, however, has to be balanced against the need to avoid delay in coming to a decision relating to adoption of a child: DSW v YPC, §69 (paragraph (2)  of the Adoption Checklist).

91.The Director has already explored with the adoptive families of the 1^st, 4^th and 5^th Children and those families prefer not to adopt another Child. 

H2.  Clinical psychologists’ views

92.Having collected information in interviews with the children, the Official Solicitor reported that:

“The elder children were aware that they had siblings, and those with better memory could still recall their siblings' names. However, their memory in relation to the siblings appeared to be vague and might not be reliable. The younger children did not even aware that they had siblings. It did not appear that the children, especially the younger ones, had any close personal ties among themselves, not to mention bonding with the original family” (§9).

93.This is in line with the assessments of the clinical psychological reports on the 1^st, 2^nd and 6^th children:

(1)  The 1^st child is found to have very little and confused memory of her siblings and very little emotional bonding with them.  On the other hand, given that she readily welcomed the idea of having a new family via adoption, there seems to be little or no complication for her to cease to be a member of the original family and pick up the new identity as an adopted person in a family where she would feel secure and loved.  Given the child recently entered into an adoptive family, facilitating her adaptation and smooth transition is important (§4).

(2)  The 2^nd child is found to exhibit a detached relationship and limited emotional bonding with her siblings.  It is believed that there would be none or minimal adverse impact on her to relinquish her tie with the original family.  The 2^nd child generally holds positive views on adoption and expresses willingness to have “new parents” and a new home.  Given her current limited emotional bonding with her siblings, any meaningful sibling relationship would require extensive, long-term, and consistent contact over many years.  However, even with frequent contact, there is no guarantee of the quality or depth of the sibling relationship.  Balancing the well-being and developmental needs of the child against the request to prioritise building sibling relationship, the clinical psychologist recommends proceeding with adoption placement for the child as soon as feasible (§§2-3).

(3)  The 6^th child could not express her mood and inner states, concepts on adoption, biological parents or siblings.  Therefore, the assessment was incomplete in the sense that her views about contacts with her biological family members, separate or joint adoption arrangement could not be gathered.  However, in view of her indiscriminate interactions with strangers as well as familiar caretakers and playmates in her hostel at this stage, placing her in contact with her biological family members or non-biological caretakers and playmates was opined not to have much difference, especially considering the fact that she had not met any of her biological family members and had any idea about them since her birth.  On the other hand, given her developmental delay, referral to comprehensive assessments and proper trainings is deemed more important and beneficial for her developmental needs in the long run. Thus, having supportive caretakers or adoptive family members who genuinely accommodate her developmental delays and are willing to participate in various trainings with her will fit her emotional and psychological needs more, regardless of their biological ties (§4).

94.This Court has already found, in relation to the 5^th, 6^th and 7^th Children that it is unlikely for the relevant Children to have separation issues with their siblings were they freed for adoption.

95.There is repeated emphases by the clinical psychologists that the importance of sibling relationship in a child’s life does not rely on blood relationship, but the emotional bonds that are developed through a stable life together, which could provide a sense of security in a child's development.

I.   RESTRICTION ON SIBLING CONTACT JUSTIFIABLE

96.The existing arrangement of the Adoption Unit is for children to keep contact with their siblings post adoption.  If any adopted child expresses to the adoptive parents his/her wish to keep this kind of contact, a social worker of the Adoption Unit will assign a social worker to facilitate the request by contacting the adoptive parents of the other siblings for their consent to arrange for contacts.  The Adoption Unit also offers root tracing service to adopted children who have reached the age of 18.

97.Given the slim chance of all 7 Children being adopted by the same family, the Director contemplates the need to protect the Children from the sense of repeated abandonment, loss and separation from the original family, which might lead to irretrievable psychological trauma when the Children are adopted by different adoptive families. 

98.The Director has shared the experience of Children being placed in the same residential home but were later matched with 3 different adoptive homes in the end; there were separation issues to be handled in that case.

99.This Court has been most concerned as to why the Children were not put together to enable them to “build their own family with siblings despite being abandoned or neglected by their parents”.  The Director’s evidence in Section H above has allayed my concerns.

100.Firstly, this Court is assured that the Director does not regard adoption as the default position in each case.  It is the best interests of a child in the long term that is the Director’s paramount consideration.

101.Secondly, it was clear that the Director was aware of the need to place siblings together, ever since they came under her guardianship, into the same institution or foster care family as far as possible.  It was owing to practical constraints and prevailing considerations (such as parents’ disturbance of foster families)  that it has not been possible to do so in a manner that served their interests at the relevant time for more prolonged periods.

102.Thirdly, the Director has actively considered the needs and risks of siblings contact and the psychological impact on the Children.  She has done so by not only considering an individual Child but also the impact of that Child’s placement on the siblings.

103.Siblings contact in the present case is non-existent.  It is quite unlike cases where siblings have existing bonding.  In those cases, eg Re A, B, C, D and E (Children: Care Plans) (supra), §§46-48, 52, 97, 101, 114-115, 120, 122, and St Helens Council v M [2022] EWFC 167[4], the courts have referred to the risks of distress and adverse impact on the emotional well-being on children who will be separated post-adoption. 

104.St Helens Council v M(supra), §30 referred to research findings which confirmed such effects:

“…Ending contact between brothers and sisters involves risks and losses for children and their families, for example, young children may be distressed, resent contact ending and find it very hard to settle or trust their adoptive parents. There is a danger that risks and losses are insufficiently recognised and considered…” [citing Beyond Together or Apart: Planning for, assessing and placing sibling groups 2021, a Coram Baaf Good Practice Guide, Shelagh Beckett (Beckett 2021)]

105.Here is not a sibling group where the children have existing bonds and one of the elder children is willing to take up the role of “parenting” the other siblings.  Even if it had been so, the Director and the Court should be aware of the risks of psychological harm arising from separation:

“The most deeply traumatised children in this study were those who have undertaken a protective role for a sibling while living in the birth family and who found that sibling relationship severed against their wishes”[St Helens Council v M (supra), §31, citing the study by Catherine MacAskill, Safe Contact: Children in Permanent Placement and Their Birth Relatives (2002)]

106.I accept that the Director in the present case has prioritized the arrangement and preparation for adoption over the need for regular meetings among the Children to avoid causing any sense of repeated abandonment, loss and separation from the family to the Children.  This is to safeguard their psychological aspect and is in the best interests of each Child. 

107.Accordingly, I find that the Arrangement that gave rise to the restriction on the children’s right to protection of privacy under BOR 14 is justified by the need to protect them from such risks.  Introducing siblings contact at this stage may carry real risks.

108.As to future siblings contact, in my view, it would not be in the best interests of the Children to consider it without the input of the adoptive parents.  Taking care of adopted children will already pose a challenge to the adoptive parents.  It may “scare off” the adoptive parents if an extra burden is imposed on them to maintain siblings contact post-adoption, which may give rise to difficulty in the adopted child blending into the adoptive family.

J.   CONCLUSION

109.The Children’s right to privacy under BOR14 has been restricted by the Arrangement. However, the Director has put in place a system of placement and has actually placed the Children with their best interests in mind.  This case is not suitable for letting the Children “build their own family” or maintain contact.  There is no breach of BOR14.

110.For the reasons given, I took the view that it was in their best interests that freeing orders be made for the 6^th and 7^th Children and that adoption orders be made for the 4^th and 5^th Children. For all the Children, there should be no arrangement for sibling contact unless and until the adoption of 2 or more siblings by the same family or families becomes a realistic option (recommendation in paragraph 14 above).

111.I express my gratitude to the Official Solicitor, Ms Tong SC, Mr Cedric Yeung and Ms Bonnie Cheng and Ms Christine Wong for their invaluable assistance.  I also express my wholehearted respect and gratitude to the team of Ms Fong Wai Yin for their contributions in this case and in every aspect relating to the 7 Children.

Ms Bonnie Cheng, instructed by Department of Justice and Ms Christine Wong, Senior Government Counsel, of the Department of Justice, for the Plaintiff

Ms Sara Tong SC and Mr Cedric Yeung, instructed by the Official Solicitor as next friend for the Children

Ms Melody Chui of the Official Solicitor Office

The Defendants were unrepresented and did not appear