Baby K v. Hong Kong Sar Government

HCAL 1375/2026

[2026] HKCFI 4760

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1375 OF 2026

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BETWEEN

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J U D G M E N T

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A.  INTRODUCTION

1.This is an application for habeas corpus that involves a minor. As the case involves allegation of maltreatment on the minor, the hearing was held in chamber pursuant to s.22A(4) of the High Court Ordinance and Order 54, rule 1(1)(c) of the Rules of the High Court (“RHC”). The matter is adjourned to open court for the order to be announced and handing down of the judgment. The names of the minor and his parents are anonymized and the personal information is redacted.

2.The minor is a baby usually referred to as XXX (“D”). He was said to be born on XXX 2026, now 4 months old. He is under a protection order with supervision for 36 months imposed by a Magistrate on 26 June 2026 (“CPO”). He is now committed to the care of XXXX XX (“PLK”) and placed under the supervision of a Social Welfare Officer (“SWO”) pursuant to the CPO.

3.This application for a habeas corpus is made by Mr XXXXXXXX, D’s father (“Father”) on behalf of D. It is the Father’s case that during the protection, D encountered torture, arbitrary detention and unfair trial that the Social Welfare Department (“SWD”) inflicted on him, in breach of Articles 7, 9 and 14 of the International Covenant on Civil and Political Rights (“ICCPR”).

4.The DOJ, acting on behalf of the Director of Social Welfare (“the Director”), submits that it is simply not appropriate to engage the extraordinary remedy of habeas corpus in respect of a minor in care. D is not under detention. There is an alternative avenue to address the Father’s concerns. In any case, the CPO is a lawful order. The Director asks for dismissal of this application with costs.

B.  FACTUAL BACKGROUND

5.D was said to be born at home in a public housing unit in Hong Kong on XXXX 2026 without medical assistance. The Father was responsible for delivery and taking care of the Mother.

6.It transpired that D is the third child of his Parents. All 3 children were said to have been born at home, without antenatal, perinatal or postnatal check-up. The first child, a girl, was born in 2019 in Country A and passed away for an unknown cause when she was one month old. The second child, a girl, was born in 2021 in Country A, but the family later moved to Country B. The daughter was removed by Country B’s authorities. The Parents have sought assistance in Country C and Hong Kong to apply for a passport for the daughter but the daughter remains in Country B, with a custody order and prohibition from removal. As for D, the Parents claim not to be aware of the Mother’s pregnancy until delivery of D.

7.This case came to the attention of the SWD on 28 May 2026 following media reports which raised suspicion of child maltreatment in respect of D. On 2 June 2026, D’s Parents were arrested by the police on the suspicion of ill-treatment or neglect by those in charge of child or young person and D was arranged to receive child assessment at the Caritas Medical Centre (“CMC”).   

8.With cross-departmental joint action on 2 June, 2026 DNA test was conducted to confirm the Parents and D’s biological relationship. D’s birth certificate was issued on 6 June 2026.

9.On 3 June 2026, the Child was discharged from CMC. SWD made an application for a CPO before the West Kowloon Juvenile Court (“WKJC”) and submitted a Brief Case Summary (“Brief Case Summary”).

10.Under the “Order for Detention in Place of Refuge” dated 3 June 2026, the WKJC directed, pursuant to the Protection of Children and Juveniles Ordinance, Cap 213 (“PCJO”), that the matter be adjourned to 26 June 2026 and that D be detained in PLK as the designated place of refuge until resumption of hearing on such day.

11.On 26 June 2026, a hearing was held before the WKJC for the application of an CPO. A Social Welfare Officer’s Report on Application for Care or Protection Order dated 25 June 2026 (“SWO Report”) was submitted to WKJC in support of the application.

12.After hearing submissions from the Parents, representatives of SWD and assigned duty lawyer representing D at the hearing, a Magistrate of WKJC made the CPO upon being satisfied that D, under the age of 18 years, was in need of care and protection.

13.By the CPO, D was committed to the care of PLK. He is also placed under the supervision of a SWO for 36 months from the date of the order under section 34(1)(b) and (d) of the PCJO with the following special conditions (“Special Conditions”):

(1)  Reside as directed by the SWO;

(2)  Receive medical appointments, check-up, health assessment, investigation and treatment as advised by the medical officer(s) concerned and directed by the SWO; and

(3)  Receive visitation, day leave and home leave as directed by the SWO.

14.According to the CPO, a hearing is scheduled for 28 August 2026 for progress report.

15.Based on the information available to the DSW, the Father has not applied to discharge or vary the CPO to date.

16.The Father now asserts, amongst others, that D suffered from “torture” by the SWD during the residential care at PLK. On 27 July 2026, SWD decided to exert statutory power to administer medicine for D’s eczema as advised by the doctor of PLK, despite the Parents’ request to consult the doctor. The Father applies for a writ of habeas corpus that D be immediately released from “arbitrary detention”.

17.The Father, however, emphasizes many times at this hearing that he has no intent to challenge the orders made on 3 or 26 June 2026. His challenge is that SWD/PLK exercised their powers in excess. In gist, his grounds for the application can be summarized as follows:

(1)  The CPO did not identify significant risks of harm to D by his Parents after various medical examinations. There was no evidence to suggest that D would be deprived of, or there was a real risk of his being deprived of medical care under his Parents’ care (“Ground 1”);

(2)  SWD/the WKJC failed to examine the proportionality of imposing the CPO on D; none of the authorities have ever analyzed D’s needs by using the Welfare Checklist (“Ground 2”);

(3)  Placing D under residential care in the long term and forcing him to quit breast milk prematurely was a form of torture. When the Parents visited D at PLK on 16 and 21 July, 2026, they observed that D had obvious eczema, was less willing to be breast fed and to have exercise (“Ground 3”); and

(4)  At the hearing before the WKJC on 26 June 2026, SWD failed to disclose key documents (Form 11.3, the MDCC Report and the MDCC Notes that SWD relied upon to accuse D’s parents of neglecting him), and the WKJC did not order SWD to do so, despite the Father’s request for access to those documents. That led to an unfair trial and unsafe CPO (“Ground 4”).

18.The Director opposes the application on the following grounds:

(1)  D, now under arrangements of care pursuant to the CPO, is not in custody or detention at present (“Not in Detention Ground”);

(2)  Habeas corpus, as an extraordinary remedy, should not be used as a “back door” to challenge the legality and terms of the CPO when there are more appropriate avenue(s) to do so (“Alternative Avenue Ground”); and

(3)  The CPO is and remains to be a lawful order made by the WKJC in the ordinary discharge of its judicial functions (“Lawful Order Ground”).

C.  LEGAL PRINCIPLES RELIED ON BY THE FATHER

19.The Father relies on the following provisions under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBORO”):

(1)  Art.3: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation (ICCPR Art.7);

(2)  Art.10: equality before the courts and tribunals; fair and public hearing by a competent, independent and impartial tribunal established by law (ICCPR Art.14);

(3)  Art.14: no one shall be subjected to arbitrary or unlawful interference with his privacy, family or home. Everyone has the right to the protection of the law against such interference.

D.  LEGAL PRINCIPLES ON HABEAS CORPUS APPLICATION

20.A writ of habeas corpus is commonly the remedy for persons who are being wrongfully deprived of their personal liberty and seeks to secure their liberty by requiring their immediate release. In modern practice, applications of the writ of habeas corpus are primarily concerned with the committal or detention of prisoners, the detention of persons in pursuance of deportation orders and extradition orders of fugitive offenders, the detention of immigrants, and the detention of persons detained for medical reasons: Hong Kong Civil Procedure 2026, Vol.1, §54/1/1.

21.The writ of habeas corpus is available only for a current detention. It is an extraordinary remedy and would only be issued in cases where the ordinary legal remedies are inapplicable or unavailable. It will not be used to litigate matters that are more properly determined by other means. Where there is an alternative remedy, such as judicial review, which will provide a more or equally effective remedy, the courts may decline to issue the writ: Hong Kong Civil Procedure 2026, Vol.1, §54/1/1 & 54/1/3. 

22.It is not appropriate to bring habeas corpus proceedings in respect of a child in care. The principles have been set out by the UK Supreme Court in The Father v Worcestershire County Council [2025] 2WLR, where the applicant applied for a writ of habeas corpus instead of pursuing a statutory appeal against an interim care order:

(1)  On an application for habeas corpus, the lawfulness of a care order is only relevant if it is an order for the detention of a child or an order under which a local authority may, in the exercise of parental responsibility, consent to the deprivation of a child’s liberty amounting to detention. (§31)

(2)  While a care order is in force, the local authority is under a duty to receive the child into their care and to keep the child in their care, and the local authority can exercise parental responsibility. The ordinary exercise of parental responsibility under a care order by a local authority, or foster parents’ exercise of their delegated authority, will not deprive a child of liberty amounting to detention. (§§33, 34, 37)

(3)  A writ of habeas corpus will be appropriate only in the most extreme or unusual circumstances where “the improper exercise of parental responsibility by a local authority or delegated authority by foster parents, may result in the deprivation of a child’s liberty amounting to detention”. It would be the same as if the foster parents had taken a child off the streets and imprisoned him or her. (§38)

(4)  If the challenge to the purported exercise of parental responsibility succeeds, the appropriate order will be for the child to be released from detention, not that the care order should cease to have effect. The result is that the child will be placed back in a position where they are subject to parental responsibility conferred on the local authority by the care order. (§39)

(5)  If there is an allegation of extreme or unusual circumstances, then an initial judgment will have to be made as to whether the claim has a “real prospect of success”. The test of a “real prospect of success” is the same as the test for resisting summary judgment. If there is no reasonable prospect of success, the application will fall to be dismissed on a summary basis (§41). In determining whether there is a real prospect of success, the allegation of extreme or unusual circumstances must be seen in the context of the statutory regime for looked after children. For there to be a claim with a real prospect of success, there will have to have been failures in relation to those procedures by several individuals. (§42)

23.A child living temporarily with foster-parents under arrangements made by a local authority under an interim care order is equally not in custody or detention: Re (S) v Haringey LBC [2004] 1 FLR 590.

“[28] ... Habeas corpus … is a remedy protecting the citizen or subject against an unlawful detention or imprisonment. Detention need not be at the hands of the state or public authority. Even a domestic house may for this purpose be a prison: … But there must be a detention. The children in the present case are not in secure accommodation (whether in the sense in which that expression is used in s 25 of the Children Act 1989 or in any other sense). They are not being detained. They are simply living with foster parents in exactly the same type of domestic setting as any other children of their ages would be, whether living at home with their parents or staying with friends or relatives.”

24.While the regimes on child protection between UK and Hong Kong may not be entirely the same, these legal principles laid down by the UK Supreme Court on the interplay between habeas corpus and child care orders should be applicable in this application by analogy.

25.I will first deal with the propriety of habeas corpus proceedings in the present case.

E.  NOT IN DETENTION GROUND

26.As a matter of law, it is not appropriate to bring habeas corpus proceedings in respect of D who is in the care of PLK pursuant to a court order: Worcestershire.

27.As a matter of fact, D is not under detention or “secure accommodation”. He was received into the care of PLK upon the making of the CPO. PLK has parental responsibility whilst the CPO is in force. In exercising that authority, PLK has not deprived D of liberty that would amount to detention. There were no extreme or unusual circumstances that came into existence due to exercise of powers by PLK/SWD.

28.Neither the making of the CPO nor the resultant care of D by PLK are “arbitrary”, but they are the result of a decision made pursuant to powers granted by the PCJO. That decision was made after D received child assessment at the CMC pursuant to section 45A of the PCJO and upon application of the SWD to a Magistrate pursuant to section 34E(4) of the PCJO. The Magistrate initially ordered, pursuant to section 34E(4) of the PCJO, the “detention” of D in a place of refuge for a period not exceeding 28 days from the date of the order in the first instance in order that further inquiries may be made about D. Any alleged detention between 3 and 26 June was rendered academic when the initial order was overtaken by the CPO on 26 June 2026.

29.The CPO never granted power to the Director or PLK to detain D. It committed D to the care of PLK, not to the Director or the SWO. Rather, the SWO as the designated supervisor under the CPO has the duty under section 34B of the PCJO to “advise, assist and befriend” the supervised person, i.e. D.

30.According to section 34(4)(a) of the PCJO, whilst the CPO is in force, PLK as the designated institution shall “have the like control over the child or juvenile as the parent and shall be responsible for his maintenance, and the child or juvenile shall continue in the care of such person or institution, notwithstanding that he is claimed by his parent or any other person”. This residential care arrangement does not empower PLK/SWD to detain D, but it is akin to the foster parent arrangement in Re (S) and care by a local authority in Worcestershire pursuant to a court order. What PLK has been doing is to exercise control over D as the parent and is responsible for his maintenance and care, notwithstanding the Father’s claim. There is nothing shown to be in excess of PLK/SWD’s powers.

31.Further, the WKJC has power to include the Special Conditions under section 34A of the PCJO when it considers “necessary for securing the adequate care, protection and control of the supervised person” having regard to the circumstances of the case.

32.Notwithstanding that there is no statutory requirement under the PCJO to consult the Parents in the daily implementation of the CPO and the Special Conditions, PLK and the SWO did discuss with the Parents on the issue of medical treatment of D’s rash/eczema. Medication was repeatedly prescribed after each of the medical examination by visiting medical officer on 17, 20, and 24 July 2026. Yet, the Parents withdrew their consent to the medication prescribed on these occasions, raising concerns about its side effects and insisting their own proposal of applying organic olive oil as alternative treatment.

33.Upon the medical examination on 27 July 2026, the Parents were duly informed by the SWO and the PLK staff about the written medical advice obtained, the medication prescribed for D, its usage, benefits and possible side effects. The medication prescribed was applied on D’s face and gradual improvements to D's eczema were noted.

34.The CPO and the Special Conditions were lawfully made and could not be read as orders of detention. The Father’s personal disagreement on the daily care and medical arrangements of PLK and supervision of SWD cannot turn lawful exercise of powers by PLK and SWD’s into something arbitrary. As there is no detention and nothing arbitrary about the CPO or residential care arrangements by PLK/SWD, habeas corpus is an entirely inappropriate remedy. This ground alone is sufficient to dispose of this application.

F.  ALTERNATIVE AVENUE GROUND

35.Habeas corpus is an extraordinary remedy that should not be deployed where a matter can more properly be determined by other means, such as judicial review or appeal.

36.Specifically, in relation to a care order regarding a minor, the UK Supreme Court held, in Worcestershire, §36 that:

“… It is sufficient for the purposes of this appeal to state that if, as the father has assumed, a care order is an order for the detention of the children or an order under which the council may, in the exercise of parental responsibility, consent to the deprivation of the children’s liberty amounting to detention, then, as we explain in section 8 below, on an application for habeas corpus (a) the care order would be lawful authority for the children’s detention and a complete defence to the application unless the order was set aside by some appropriate procedural route; (b) ordinarily the applicant would have to bring judicial review proceedings, in aid of the habeas corpus application, to quash the care order; (c) permission to bring an application for judicial review would be refused if, as here, there was a suitable alternative remedy by way of an appeal against, or an application to discharge, the care order; and (d) in such circumstances the application for habeas corpus would be dismissed.”

37.WD v Chief Executive of Hospital Authority [2025] 3 HKLRD 871, was an extremely unusual habeas corpus application involving a child allegedly unlawfully detained in a hospital. Whilst divorce proceedings in the Family Court and wardship proceedings in the Court of First Instance were foot, conflicting orders were made – a CPO by the Juvenile Court (which committed the child to the mother’s care, with supervision of an SWO for 12 months) and an interim order by the Family Court (giving care and control to the father). The Court ordered the child to be released from the hospital as there was no medical reason for him to be there. Coleman J commented, obiter, that the proper place for addressing matters relating to the care and control of the child was the Family Court.

38.Despite his assertions that he is not challenging the validity of the CPO, the Grounds relied on by the Father are collateral attacks on the CPO and the Special Conditions through the back door of a habeas corpus application. In law, he has an alternative avenue under section 34C(1) of the PCJO, which provides that a parent or guardian may apply for the discharge or variation of the CPO or Special Conditions. Section 34C(2) further provides that any variation may cancel any requirement included in the CPO, or insert any requirement which could have been included in it. And yet the Father has never applied for discharge or variation.

39.On the Alternative Avenue Ground alone, this application can also be dismissed.

G.  LAWFUL ORDER GROUND

40.Assuming D has really been detained, the question is whether there is and continues to be lawful authority to detain him. As stated by Coleman J in WD:

“38. As already indicated, the central question on an application for habeas corpus is whether there is, and continues to be, lawful authority for a detention. The lawfulness of detention, or continuing detention, is subject to potential objective review by the Court. The review is not a review as to Wednesbury unreasonableness, or on other public law grounds.

39. Either continuing detention is lawful, or it is not. Even in circumstances that the Court’s review involves an exercise of judgement and balance, that is not a discretionary decision. Where there is a prima facie case that the detention is unlawful, the burden is upon the person detaining to show that the detention is lawful.

40. The lawfulness of detention is to be assessed at the time of the application.”

41.In Secretary for Justice v CMT and Another [2020] HKCA 939, §§22 and 27, Hon Poon CJHC emphasized the importance of satisfying one or more of the 4 statutory criteria under section 34(2) of PCJO before a CPO may be made, i.e. that the child is one:

(a)  who has been or is being assaulted, ill-treated, neglected or sexually abused; or

(b)  whose health, development or welfare has been or is being neglected or avoidably impaired; or

(c)  whose health, development or welfare appears likely to be neglected or avoidably impaired; or

(d)  who is beyond control, to the extent that harm may be caused to him or to others.”

42.Hence, where counsel advocates or a probation officer considers a care and protection order is appropriate, he should provide the necessary assistance to the court, including indicating how the statutory criteria is met in the circumstances of the case. It would not be sufficient to proceed simply on the basis that the offender needs care and protection in a general or loose sense.

43.The WKJC in West Kowloon was presented with:

(1)  The Brief Case Summary, which documented the background information of which the SWD had reasonable cause to suspect that D was or was likely to be in need of care or protection. In particular, D’s health was of great concern as he was allegedly delivered at home “without information on antenatal, perinatal or postnatal check-up”. It was therefore considered that D was in need of care or protection in accordance with Section 34(2)(b) of PCJO “whose health, development or welfare has been or is being neglected or avoidably impaired”, leading to the application for CPO;

(2)  The SWO Report, which consolidated the available information of D. It included the family background, living condition, financial condition and family relationship of D’s family in great detail. It also recorded the claims of the Mother on the care and health conditions of all 3 children of hers. It recorded how the suspected maltreatment of D was uncovered and his medical condition since his placement under PLK from 3 June 2026. It summarized the uncooperative attitude and response of the Parents towards various liaison and contact of the SWO. It was reported that D had not received proper medical attention during the gestation period and after home birth, and yet the Parents have persistently upheld their strong personal views on the health care arrangements for D against professional medical advice. As the Parents had failed to render adequate care and attention to D to the extent that his health and development would be endangered, the conclusion was that this was a case of child neglect.

44.In the light of such evidence, it can hardly be suggested that the CPO and the Special Conditions could not satisfy any one or more of the four statutory criteria as set out in section 34(2) of PCJO. There is no evidence to suggest that the Magistrate had improperly taken into account irrelevant factors or overlooked relevant factors.

45.The CPO is a lawful order and remains a complete defence to this application unless and until it is set aside or overturned by an appropriate procedural route: Worcestershire. Again, the Lawful Order Ground in itself is sufficient to dismiss this application.

H.  ANALYSES OF THE GROUNDS ADVANCED BY FATHER

46.Given the above analyses, the Father’s Grounds for application can be dealt with briefly.

47.Grounds 1, 2 and 4 and his reliance on HKBORO are in fact collateral attacks on the propriety of the CPO. In view of sections E to G above, it can hardly be said that the CPO was unlawful. As the Father confirmed during the hearing, he has never applied for discharge or variation of the CPO.

H1.  Ground 1 – no significant risk

48.The Father submits that in Form 11.3, the responsible MP found D’s health to have no major deviation from a normal baby of the same age. However, the MP still recommended removing D while the MP identified no significant risk of harm.

49.The Father relies on Re A (A Child) Darlington Borough Council v M, EWFC 11, §12, Sir James Munby, President of the Family Division:

“12. The second fundamentally important point is the need to link the facts relied upon by the local authority with its case on threshold, the need to demonstrate why, as the local authority asserts, facts A + B + C justify the conclusion that the child has suffered, or is at risk of suffering, significant harm of types X, Y or Z. Sometimes the linkage will be obvious, as where the facts proved establish physical harm. But the linkage may be very much less obvious where the allegation is only that the child is at risk of suffering emotional harm or, as in the present case, at risk of suffering neglect. In the present case, as we shall see, an important element of the local authority’s case was that the father ‘lacks honesty with professionals’, ‘minimises matters of importance’ and ‘is immature and lacks insight of issues of importance’. May be. But how does this feed through into a conclusion that A is at risk of neglect? The conclusion does not follow naturally from the premise. The local authority’s evidence and submissions must set out the argument and explain explicitly why it is said that, in the particular case, the conclusion indeed follows from the facts. Here, as we shall see, the local authority conspicuously failed to do so.

…

14. [Citing Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, §50] society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.”

50.The Father submits that the MP merely named some facts and concluded that the Father neglected D without providing evidence and linking the facts to the conclusion. He also submits that the “risk factors of child maltreatment in future” identified in the MDCC Report are not significant risks of harm. There is no evidence in the MDCC Report to suggest that D was facing any realistic risk of harm.

51.I am unable to agree. The MP’s remarks were that there was no proper antenatal/perinatal/postnatal check-up and no vaccination. He also referred to the history of the death of the first sibling and care of the second sibling by the 2^nd Country’s authorities. Those remarks, were in my view matters that linked the facts to the perceived medical risk.

52.Further, while the Father’s submission was focused narrowly on one aspect, namely, medical assessment, the information placed before the WKJC through the Brief Case Summary and SWO Report was much wider than that. See paragraph 43 above.

53.It is not for this Court to review and weigh the risk factors in these proceedings. There are no merits in Ground 1.

H2.  Ground 2 – failure to examine proportionality

54.The Father submits that a care order can only be made if necessary and only if it is proportionate to the needs of the situation. He refers to Re H-W (Children) [2022] UKSC 17, §45:

“The effect of a care order is to vest parental responsibility for the child in the local authority. … Thereafter, the parents can exercise their parental responsibility only to the extent that the local authority determines. … that intrusive power clearly engages the article 8 rights of the parents and children. It follows that a care order can only be made, even if the statutory threshold criteria under section 31(2) are met, if such an order is necessary in a democratic society for the protection of the child(ren)’s right to grow up free from harm. That means that the order can be made only if it is proportionate to the needs of the situation. … a judge considering a care order has an obligation not to act incompatibly with the article 8 rights involved. In truth, the obligation under article 8 ECHR, so clearly recognized in In re B does no more than re-state the longstanding proposition of English child care law that the aim must be to make the least interventionist possible order …”

55.Again, this is an attack on the propriety of the CPO which should not be ventilated in these habeas corpus proceedings.

56.The Father submits that none of the authorities have ever analyzed D’s needs by using the Welfare Checklist.

57.In Hong Kong, it is common for courts to refer to the Welfare Checklist in children cases. However, there are several caveats that Poon J (as the CJHC then was) has pointed out in H v N [2012] 5 HKLRD 498:

“29.  First, absent any statutory underpinning in the GMO, our courts are under no duty to have regard to “the welfare checklist”. In other words, it is not compulsory to do so. Whether a judge may wish to make use of it and if so how is entirely a matter for him. For example, he may cherry-pick, as it were, only those factors on the checklist which are relevant to the case before him. As long as the judge’s decision, supported by reasons, is demonstrably in the best interests of the minor, he cannot be criticized for not expressly applying the checklist or not going through all the factors one by one.

30.  Second, when applying the checklist, judges are not subject to the laborious necessity of expressly relating their findings in every case to its specific provisions one by one.^[6] Otherwise the task will become too onerous unnecessarily.

31.  Third, “the welfare checklist” is an aide-memoire designed to ensure that none of the factors potentially relevant for a court considering a child’s welfare generally in the circumstances of each particular case is left out of account... It is not meant to be exhaustive. Judges are entitled to and indeed should have regard to all other relevant factors even if they are not on the list.

32.  Subject to these caveats, I think judges are at liberty to make use of “the welfare checklist” in the way that best suits the need of the case before the court for the purpose of assessing the best interests of a minor.

58.In my view, the MDCC Report had plainly considered the Welfare Checklist under various bold titles. Not only that, but the reporting officer also considered the Parents’ capability, reliability and views on welfare plan as carers for D. The section titled “risk factors of child maltreatment in future” set out the birth history of all 3 children; followed by consideration of the child aspect, parent aspect, family aspect and interaction between family and agency staff. Amongst others, the need for proper child care for D, “to maintain bonding” between the Parents and D and the Parents’ wish to take care of D by themselves had been considered. These were considered by the SWO and the WKJC before the CPO was made.

59.§31 of the MDCC Report identified 6 needs of D and the family:

(1)  To arrange proper child care for D, including stable accommodation, timely medical attention and follow-up on health condition;

(2)  To enhance the parents’ understanding on the common developmental and health care needs of D;

(3)  To equip the parents with proper child care knowledge and skills;

(4)  To maintain bonding between the parents and D;

(5)  To assess and address the possible impact on the parents’ emotional and child care arising from the family adversities, i.e. decease of their first child and the prolonged separation of their second child; and

(6)  To enhance the parents’ cooperativeness with professionals.

60.The Father submits that these could all be achieved without removing D, a most intrusive measure. SWD had not explained why other measures, such as placing the family together in an investigative home could not be effective. As SWD was mainly concerned with the medical attitude of D’s parents, the parents conceded to consult medical advice monthly on D’s health and so there was no need to remove XXXX.

61.This submission once again attacked the propriety of the CPO. The Father also took things out of context. The MDCC Report and SWO Report had considered more wide-ranging factors than what he submitted. The 6 needs were more than medical aspects. How the 6 factors were or should be weighed before coming to a conclusion that D was in need of residential care service and professional assistance to safeguard his best interests is not a matter for these proceedings.

62.There are no merits in Ground 2.

H3.  Ground 3 – torture of D

63.Father submits that under the Guidelines for the Alternative Care of Children (the Guidelines), A/RES/64/142, §4, every child should live in a supportive, protective and caring environment that promotes his full potential. Alternative care for young children, especially those under the age of 3, should be provided in family-based settings. Exceptions to this principle may be warranted in cases where the placement is of an emergency nature or is for a predetermined and very limited duration, with planned family reintegration or other appropriate long-term care solution as its outcome.

64.The Father also submits that research has demonstrated that children institutionalized before the age of 6 months suffer long-term developmental delay. There will be devasting effects to health and development of young children if they stay for longer than 3 months in institutional care.

65.D has been under institutional care since 2 June 2026 when he was removed from his parents’ care. He was hospitalized for 9 days and the rash on his face became serious eczema. His Parents’ alleged observation was that his physical, emotional and social developments were negatively impacted by the institutional care. D also developed self-harm behaviour. The Father claims that despite the Parents’ expression of concern, SWD failed to take any measure. Further, D only had the opportunity to see his Mother twice a week and 45 minutes each time. He had to quit breast milk prematurely. That negatively impacted on his health and severely limits the opportunity to establish intimacy with his Mother.

66.In my view, the attack on the duration of the CPO is not a matter for this Court. The other matters concern the implementation of the CPO. They are well within the powers of PLK and the supervisory role of SWD and cannot be said to be “fortune” of D. The Father has not ventilated his complaint at the appropriate forum under the PCJO.

H4.  Ground 4 – failure to disclose key documents

67.This complaint is academic. As acknowledged in the Father’s affirmation, §33, SWD had provided various documents to the Father on 29 July 2026 pursuant to his data request on 30 June 2026. Redaction of third party information on those documents was well within the restraints under the Personal Data (Privacy) Ordinance, Cap 486. As the Father is not challenging the validity of the CPO and Special Conditions, Ground 4 is irrelevant.

I.  CONCLUSION AND COSTS

68.It is plain that the application for a writ of habeas corpus is entirely inappropriate. Given the analyses above, none of the Father’s grounds have merit. The application is thus dismissed.

69.DOJ seeks costs against Father. The Court does have discretion to award costs against an unsuccessful applicant for habeas corpus, but the discretion is to be exercised judicially depending on the facts and circumstances: Tong Ying Kit, §§13-18.

70.The outcome of the habeas corpus application remains a relevant consideration, though not a conclusive one: Tong Ying Kit, §26.

71.The hearing came on quickly and DOJ’s counsel very fairly and ably assisted the Court with their submission on law under great pressure of time.

72.There is no public interest involved in the present case. It is an application by a parent who, having a child delivered by his own means, fixates on his own way of raising his child without regard to the risks that he exposes his child to. Taking all circumstances into account, I make no order as to costs against Father.

73.I thank Mr Andrew Tong and Mr Peter Wong for their helpful submission.

Applicant, represented by his father, appeared in person

Mr Andrew Tong, Acting Senior Government Counsel, and Mr Peter Wong, Government Counsel, of the Department of Justice for the Respondent