Director of Social Welfare v. Fc and Another

HCAD 6/2025

[2025] HKCFI 4249

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADOPTION APPLICATION NO 6 OF 2025

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J U D G M E N T

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BACKGROUND

1.This is an application by the Director of Social Welfare (“the Director”) for an order:

(1)  That any consent of the 1^st Respondent (“Mother”) required to free the infant XXXX XXX XX (“FMW” or “the Infant”) for adoption be dispensed with;

(2)  That any presumption that the 2^nd Respondent (“Husband”) is the father of FMW under section 5 of the Parent and Child Ordinance, Cap 429 (“PCO”) be rebutted;

(3)  That any consent of the Husband to free the Infant for adoption be dispensed with;

(4)  That the Infant may be freed for adoption under section 5A of the Adoption Ordinance, Cap. 290 (“the Ordinance”).

2.FMW, a girl, was born on X XXX XXX in Macau to the Mother and an unknown male from Beijing whose name the Mother could no longer recall (“the Putative Father”). The Mother stated that she had no contact or means of contact with the Putative Father. The name of the father on the Infant’s birth certificate was left blank.

3.The Husband is presumed to be the father of the Infant because at the time of her birth, the Mother was married to him. However, the Mother has not seen the Husband since 2007.

4.The Mother has given birth to 4 children, tabulated below:

Name	Father	Relationship with FMW	Sex/Age	Education	Remarks
Unknown	Husband	Elder half-brother	M/around 20	Unknown	Living with maternal grandmother in Mainland China
XXXX XXX XX (XXX)	Unknown man from Beijing	Subject child born on X XXX XXXX	F/around 13	XXXXXX	Living in Po Leung Kuk (“PLK”) and receiving CSSA
FKY HCAD 7/2025	Unknown	Younger half-sister born on X XX XXX	F/X	XXXXXX	Foster care and receiving CSSA
Unknown	Unknown	Younger half-brother born on XX XXXX XXX	M/XX	-	Unknown

5.The Mother is a drug addict with a gambling problem and chronic mental illness. FKY and the youngest child were born with traces of drugs in their urine. She was diagnosed with schizophrenia and drug-induced psychosis which required psychiatric treatment in Kowloon Hospital, but she has stopped the psychiatric medication and has been absent for all medical follow-up since 2018.

6.FMW was born in Macau and returned to Hong Kong with the Mother in 2014. She lived with the Mother for 3 years. After the age of 3, FMW was arranged to receive residential care service and placed at a foster home for about 5 years. Thereafter, FMW was transferred to a relief foster home on 2 March 2020, to an emergency small group home on 28 April 2020, and to Po Leung Kuk Children’s Section from 6 July 2020 until the present.

7.The Mother seldom visited the Infant at her residential home and is now untraceable. She has never attended the Infant’s half-yearly review meetings.

8.To safeguard the Infant’s interest, the Director has been appointed as the legal guardian of FMW on 20 December 2019.

9.The Director took out the present originating summons on 11 March 2025.

10.Pursuant to the order of Master J Wong on 18 March 2025, service of court documents on the Mother and the Husband has been dispensed with as they were untraceable.

REBUTTING THE PRESUMPTION THAT THE 2^ND RESPONDENT IS THE FATHER OF THE INFANT

11.Under section 5 of the PCO,

“(1) A man shall be presumed to be the father of a child –

(a) if he was married to the mother of the child at any time and if there arises by virtue of that marriage a presumption of law that the child is the legitimate child of that man; or

(b) where no man is presumed to be the father under paragraph (a), and subject to section 10(3), if he has been registered as the father of the child by an entry made after the commencement of this section in any register of births kept by the Registrar of Births and Deaths under any Ordinance.

(2) Any presumption under subsection (1) may be rebutted by proof on a balance of probabilities.

(3) The presumption of law as to a child’s legitimacy arising by virtue of the marriage of the child’s mother at a time related to the conception or birth of the child may be rebutted by proof on a balance of probabilities.”

12.Where there is no scientific evidence or evidence from the parents, the question of whether a person was the lawful and natural child of his parents was by no means an easy one, and it must be approached from a common sense point of view, having regard to the evidence available and all the relevant circumstances in the light of the so called presumption of legitimacy. The starting point in such a case must be the conduct of the parents: Director of Social Welfare v HSP [2014] 2 HKC 51, §105.

13.According to a Probation Officer’s Report dated 17 July 2020, the Mother married the Husband, a Hong Kong resident, in Hunan, China in 2020.

14.The name of the father on the birth certificate was left blank even though the Mother was married to the Husband at the time of the birth of the Infant.

15.The Mother has no marriage record in Hong Kong. She married the Husband in Mainland China. The Director is unable to confirm her current marital status with the Husband in Mainland China. According to the Mother, the Husband is not the biological father of the Infant and she has not met him since 2007. She does not have the means to contact the Husband either.

16.The Mother claims that the biological father is a man from Beijing but she cannot contact him or does not have the means to do so.

17.The Mother and the Putative Father cannot be located. There is no evidence to rebut the Mother’s version of events. On balance, the presumption as to fatherhood is rebutted with regard to the Husband.

LEGAL PRINCIPLES ON FREEING THE INFANT FOR ADOPTION

18.Under section 5(5)(a) of the Ordinance, an adoption order shall not be made without the consent of every person who is a parent of the infant.

19.Under section 2 of the Ordinance:

(1)  The term “father” in relation to an infant born out of wedlock, means the birth father.

(2)  The term “parent” in relation to a child born out of wedlock, means (a) his mother; (b) in the case of a child whose father is entitled to exercise any right or authority in relation to the child by virtue of an order of a court under section 3(1)(d) of the Guardianship of Minors Ordinance, Cap 13 (“GMO”), his father.

20.The court may make an order declaring an infant free for adoption if it is satisfied that:

(1)  The parent has “abandoned, neglected or persistently ill-treated the infant”;

(2)  The parent cannot be found or that his consent is unreasonably withheld; or

(3)  The parent’s consent ought, in all the circumstances of the case, to be dispensed with.

See sections 5A(1) and (2) and 6(1) of the Ordinance.

21.In Re C (Adoption: Consent) [2012] 1 HKLRD 308, §§25 and 26, Poon J (as he then was) explained the meaning of “abandonment” and “neglect”:

“25. Abandonment is a morally reprehensible desertion of the child. When a parent abandons his child, he is disregarding his parental duty completely. He simply gives up the child and has left it to its fate. …

26. Neglect involves a very serious dereliction of parental responsibility. When a parent neglects a child, he fails to make adequate arrangements for the care and nurturing of the child, such as the provision of adequate and proper food, nursing, clothing, medical aid, accommodation, education or other special needs of the child.”

22.In Director of Social Welfare v YKK [2021] 4 HKLRD 30, §73, B Chu J adopted a two-stage process in this type of application:

(1)  Is adoption in the best interests of the infant? In considering this, the Court shall have regard to the Adoption Checklist: Director of Social Welfare v YPC [2020] 5 HKLRD 233, §§69-75, B Chu J.

(2)  If so, is a ground or grounds of dispensation of the consent to the adoption required under section 5(5)(a) of the Ordinance proved on the balance of probabilities?

23.The fact that the Court is satisfied that any necessary consent should be dispensed with does not make the Court a rubber stamp to allow the freeing application: Director of Social Welfare v HJX [2021] 1 HKLRD 519, §§30-31.

STAGE 1: IS ADOPTION IN THE BEST INTERESTS OF THE INFANT?

24.The paramount consideration of the Court must be the best interests of the Infant. The Court bears in mind that any delay in coming to the decision is likely to prejudice the Infant's best interests. In determining this case, I have taken into account the Adoption Checklist.

25.The Mother is not fit to be a carer and is untraceable. She is aged around 46. She was and is a drug addict with gambling problem and has incurred great debts. She has repeatedly relapsed into abusing drugs, and failed to attend intake interviews for drug withdrawal services. The Mother’s youngest child, born on XX XXX XXXX, had traces of methamphetamine in his urine, indicating that the Mother was still taking drugs recently.

26.Furthermore, the Social Welfare Department reports that the Mother has been difficult to trace, has an unstable residence, and has missed many appointments with her social workers. She was diagnosed with schizophrenia and drug related psychosis, yet she has defaulted all follow up since 2018. She was declared medically unfit for child care and making decisions on child care arrangements. She has also been imprisoned 5 times between 2003 to 2024 for offences related to gambling and theft. She is also suspected of having abused FMW’s welfare money, and the Social Welfare Department was appointed to receive the comprehensive social security assistance for FMW in lieu of the Mother in August 2017.

27.FMW is in residential placement at PLK. While a residential care home is able to provide stable care for FMW, there is a high child-to-caregiver ratio, frequent changes of caregivers, and a tendency to focus more on physical needs than emotional development. Staff at PLK are busy and frequently change but FMW longs for a long-term carer.

28.A stable and loving family, on the other hand, is in the best interests of the Infant in developing a long-term family relationship with the love and care that she needs.

29.The Mother has not been cooperative in devising child care plans. She has not always been contactable. Over the years, she vacillated between keeping the Infant herself and signing her off for adoption. However, the case-worker(s) have made full use of the time and gone an extra mile to arrange for FMW and FKY to meet on a monthly or bi-monthly basis. The 2 girls developed bonding. FMW treats FKY as her only family member and has a strong wish to live with FKY. FKY likes FMW and calls her “sister”.

30.Further, the case worker(s), with the assistance of the clinical psychologists, took time to observe the attitude on the part of the younger one towards adoption and to bring about her deeper understanding of the concept of adoption. Both girls have been given time to nurture a genuine wish to adoption by the same family.

31.Separating siblings is not a step that is ever lightly taken by the Court. Separation of siblings may make the Director’s task of identifying suitable placements somewhat easier but the starting point is that, generally, siblings should be placed together, if at all possible: the 7 Children Case of Re LLY and 6 others, HCAD 26 and 27/2022, HCAD 19,20,21,33 and 34/2023, §70, Au-Yeung J, following Re A, B, C, D and E (Children: Placement Orders: Separating Siblings) (unrep., Case No: DE16CO0355, 15.3.2018), §75, HHJ Judge Bellamy.

32.The approach of the case workers in the present case is to be applauded. It is consistent with (i) what this Court was assured of in §80 of the 7 Children Case, ie, that adoption is not the necessary destination for every abandoned child; and (ii) the approach of the Director described in §§100-102 of the same case. FMW and FKY’s right to privacy under Article 14 of the Bill of Rights has been upheld. This Court remains confident that sibling relationship can be built despite siblings living apart and despite not having a parent to take care of them. It is also not essential that one (usually elder) child has to be in a leadership role or is able to physically take care of the younger one(s) that family relationship can be nurtured. If adoption or adoption by the same family cannot be achieved, these 2 girls now at least have one person on earth they can look to for familial attachment.

33.FMW is capable of expressing her view on adoption. She spent 3 years with the Mother before she received residential service. Initially, FMW did not want to be adopted as she upheld a hope that the Mother would come to visit her and take her home for long-term care. However, upon the continuous disappearance of the Mother, FMW expressed her great disappointment over the Mother who only paid lip service to visiting her.

34.FMW has expressed a strong wish to be adopted, as she longs for love and a permanent home with parents. She needs adoptive parents and a stable family environment to help her develop a secure attachment.

35.FMW raised her request for meeting FKY from time to time, and the sisters’ visit has been arranged monthly or bimonthly from August 2021 (when FKY was aged 2) until present. FMW and FKY are happy to meet each other and treasure their time together. FMW treats FKY as her only family member and she expressed her strong wish to be adopted together with FKY.

36.According to the psychological report, FMW clearly expresses her willingness to accept adoption, whether local or overseas, as long as she would be adopted together with FKY into the new family. FMW understands what adoption means, and she is well aware that given her age, inter-country adoption is more feasible. She also understands what inter-country adoption is and that adoption would be permanent. FMW maintains and expresses her wishes and willingness to be adopted (either locally or overseas) together with FKY.

37.FMW is a healthy, sociable and kind-hearted girl. She has developed insecure attachment from the long-term parental abandonment. She is eager for adults’ attention and care. She was diagnosed with Attention Deficit Hyperactivity Disorder with Oppositional Defiant Disorder features. FMW requires a stable living environment with carers who are patient and caring to help her develop a secure attachment.

38.FMW has no bonding with the Mother or other siblings as FMW had lived with the Mother only until the age of 3. There is no indication of negative impact on the Infant if she ceases to be a member of her original family upon adoption.

39.It does not seem that FMW has suffered or is at risk of suffering from any harm.

40.FMW had a good but not close relationship with her ex-foster mother. Contact with her could alleviate FMW’s sense of abandonment. Yet the ex-foster mother could not be reached by the caseworker since mid-2023.

41.None of the relatives are available to or have ever taken care of FMW or FKY. The maternal grandmother is already living with the Mother’s first son and is not contactable. The Director has no information on any other relatives of the Infant.

42.The Infant lacks the experience of forming a secure, stable and loving relationship with her major carers throughout her formative years. This is a plain case that adoption is the best choice compared to foster care service and institutional care service. FMW has expressed a strong wish to be adopted together with FKY.

43.Given that FMW and FKY are healthy and clinically assessed to be suitable for adoption, they should be given a chance at adoption. To maximize the chances of sibling adoption, local and Convention adoption can be arranged in parallel. The Director undertakes to arrange for adoption by the same family. This Court agrees that this is in the best interests of FMW and FKY to do so.

STAGE 2: IS A GROUND FOR DISPENSATION WITH THE RESPONDENTS’ CONSENT TO ADOPTION PROVED?

44.The Mother has not taken care of or visited FMW in the last 10 years. She has not shouldered her parental responsibilities or shown any concern over the Infant’s welfare. She has defaulted numerous appointments arranged by the Director for discussion of the Infant’s welfare. She failed to enquire about the Infant’s conditions, not to mention arranging for food, nursing, clothing, accommodation, education or the like. She has plainly abandoned or neglected the Infant.

45.The Mother does not have fixed abode, stable job or source of income. She relies on comprehensive social security assistance. There is no realistic likelihood that she will be able at any time in the foreseeable future to offer a safe and beneficial family environment for the Infant. I find that her consent to free the Infant for adoption was unreasonably withheld. She is not even traceable.

46.The Mother simply lacks ability and capacity to provide for the Infant. She has already deprived the Infant of the love of a family. The older the Infant gets, the greater the chance of seeking adoption diminishing. Under the Adoption Checklist, delay of the court or adoption agency in coming to a decision in relation to a child is likely to affect the child’s best interests. There should be no more delay and I consider it appropriate, in all the circumstances, to dispense with the consent of the Mother.

47.The Husband is not a parent, so his consent to a freeing order or adoption is not required. In any case he has never been involved in the Infant’s life. Any consent to adoption required can be dispensed with.

CONCLUSION

48.As FMW has been abandoned by the Mother and the Husband is not the father, and there are no relatives who can take care of FMW, it is in the best interests of FMW to free her for adoption.

49.The Director has undertaken to arrange for adoption of FMW and FKY by the same family in Hong Kong or overseas. The Director is also willing to give an undertaking to the Court to continue to provide counselling and information to the Infant and to obtain her consent in accordance with Director of Social Welfare v LPK (No 2) [2023] 4 HKLRD 405, §4, 29. The Court accepts the undertakings.

50.For the reasons given, I therefore order as follows:

(1)  Any presumption that the 2^nd Respondent is the father of FMW under section 5 of the Parent and Child Ordinance, Cap 429 (“PCO”) is rebutted;

(2)  Any consent of the 1^st Respondent as required to free the Infant for adoption is dispensed with; and

(3)  Any consent of the 2^nd Respondent as required to free the Infant for adoption is not required; and

(4)  That the Infant be freed for adoption.

51.I thank Ms Fong, Mr Lam, Ms Yee Ka Wing, Karen (Social Work Officer) and Ms Wong Sin Nga, Zena (Social Work Officer) for their assistance.

Ms Agnes Fong, Senior Government Counsel and Mr Arnold Lam, Government Counsel, of Department of Justice, for the Applicant

The 1^st and 2^nd Respondents were not represented and did not appear