Li Bo Chun and Another v. Lee Wai Kuen

HCAD000051/1978

Coram: Garcia, J. in Chambers

Date of Judgment: 21 December 1979

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DECISION

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1. This is an application made under the Adoption Ordinance Cap. 290 by Mr. & Mrs. LI Bo-chun for an order to adopt a male child known as LI Yiu-hung but originally named LEE Wai-kuen. Coupled with this application is an application under Section 6(1)(a) and 6(1)(c) of the said Ordinance to dispense with the consent of the natural mother of the child required to be given under Section 5(5)(a) of the Ordinance. The application for an adoption order was filed by the applicants on the 10th day of March, 1978. The appropriate form of consent to the adoption of the said child was signed by his mother on the 14th November, 1977 when the child was handed over to the applicants, but on the 25th July, 1979 she filed a notice to the effect that she no longer consented to an adoption order being made in respect of the said child hence these proceedings. That she is fully entitled to withdraw her consent before an adoption order is actually made has not been disputed even though the provisions of Section 5(5)(d) have not been complied with, but for the purpose of the present proceedings, her notice will be treated as an application under those provisions. See also in Re Hollyman 61 Law Times Reports 229. The child in question was born on the 11th day of July, 1977 and is the son of Madam LEE Wai-kuen and Mr. CHEUNG Kam-sin. He has been described as the putative father of the child but as hereafter appears he would be referred to as the father of the child in this judgment. Madam LEE Wai-kuen describes herself as having been previously married to a Mr. SIU Chi-ping from whom she separated some time in 1975 because of his cruelty to her. She had four children by him, three of whom are now in his custody and the 4th and last child of their union, who was born after she had "divorced" from Mr. Siu was adopted under an order made on the 4th day of April, 1978. It appears from the evidence adduced by her in support of her withdrawal of consent to the adoption of the child in question that she married Mr. Cheung on the 13th July, 1978 and in the marriage certificate she is described as a spinster and therefore in fact a more accurate description of her relationship with Mr. Siu is that they cohabited with each other and were never married. She says in her affirmation that she put out her last child by Mr. Siu for adoption with the latter's consent because she was unable to support him due to her financial position at that time. Following the child's adoption she began working in a factory where she met Mr. Cheung and they both eventually cohabited together in an unnumbered hut in Shek Lei Pui, and in March 1977 as a result of a quarrel between them she left home, whilst at about the same time Mr. Cheung had returned to Mainland China to care for his sick relative who eventually passed away. When she left home she says she was about five months pregnant with Mr. Cheung's child and having lost contact with him and finding herself destitute she sought assistance from the Tsuen Wan Caritas Family Service Centre where she was helped by Miss Margaret LEUNG Tsui-ping in obtaining public assistance before and after the birth of the child in question. Even before the birth of child, the question as to whether she wished to keep the child was raised and despite acknowledgement of the assistance given to her by Miss Leung Madam Lee, she states in her affirmation that she had been persuaded by the former to give up her child for adoption, whereas on the contrary it was said by Miss Leung in evidence that she had encouraged Madam Lee to keep the child. Miss Leung also says that there was an occasion in which Madam Lee, after the birth of the child in question, had attempted to recover the child born of her cohabitation with Mr. Siu, from his adopted parents but her attempts had been unsuccessful and she gave it up. The reason given for recovering that child was because the child in question and that child could be brought up together. However, after the birth of the child in question she vacillated in her decision as to whether she should keep him or have him adopted by others. The first course she took was to recommend a couple by the name of Mr. and Mrs. Kwan who were friends of her sister to adopt the child and this was done some time in August or September 1977 - two months after the birth of the child. The Kwans were interviewed by Miss Leung but shortly afterwards they withdrew their offer to adopt the child. Madam Lee's financial circumstances were to say the least rather bad at that time. She was on public assistance and as she had to support a new born child on that plus living in a rented bed space in a cockloft, she had to seek further assistance from Miss Leung. Here again she says that Miss Leung persuaded her to have the child adopted by her (Miss Leung's) friends, the applicants, and once the child was adopted she would be free to return to work and they would offer her $2,000 if she was willing to give up her child for adoption. This was some time in November 1977. Miss Leung denies that the applicants are friends of hers and her only connection with them was that she had interviewed them because they had expressed their wish to adopt a child. A meeting was however arranged by Miss Leung for her to meet the applicants with the child in question but she did not turn up because she says she had decided not to give the child away.

2. Mr. Cheung returned from China in October 1977 and began to look for Madam Lee and he was not successful until about the time of the said writ. When he saw her he wanted her and the child to pose for a photograph to enable him to apply for a piece of Crown land in order to build a hut since his but at Shek Lei Pui was then demolished. No mention was however made by either of them as to whether they would live together again and what was to be the child's future, although no doubt there would have been much discussion over her living conditions as they had been away from each other for some time and it would have been the first time Mr. Cheung had seen his son since he was born. After the picture was taken, Madam Lee says simply that Mr. Cheung "then went away".

3. As she did not turn up for the meeting with Miss Leung and the applicants Miss Leung contacted her again and, according to her, Miss Leung persuaded her to put the child up for adoption and in the end she says that she relented and agreed to meet her and the applicants on the 14th day of November, 1977.

4. Having heard Miss Leung give evidence in the witness-box I am convinced that what Madam Lee says of Miss Leung regarding this particular episode is not true. As to the choice of whether she wanted to have the child put up for adoption or not was entirely her own and no doubt since Mr. Cheung had already got in touch with her not so long before that call from Miss Leung, she would have asked for his advice, he being then the putative father of the child. However, she attended the meeting with her child, and after an introduction to the applicants she went with them to the Adoption Unit of the Social Welfare Department where the necessary documents were prepared. During the luncheon break she had a meal with the applicants and two of their friends who had accompanied them to the said Adoption Unit, and at the meal Mrs. LI Bo-chun told her that $2,000 would be paid to her after the necessary consent to adoption of the child was signed by her. Miss Leung was not with them either at the Adoption Unit or at the lunch that day. Following lunch, the parties returned to the same Unit and there she signed the consent form (Form 4) for the adoption of her child by the applicants and after doing so, she was given a red packet by Mrs. LI Bo-chun which contained a sum of $2,000. This payment has not been denied by the applicants and Miss Leung finds it a common-place thing where such matters are concerned even though these payments are illegal, under the Ordinance. Such payments, although attracting criminal penalties for the parties concerned do not however affect the making of an order in favour of the applicants. The question arises here as to how far the consent given by Madam Lee was the result of a promise of the payment of $2,000 as she seems to have implied in paragraph 4 - a reference to her financial condition at the time of the child's birth and the period between then and his adoption by the applicants and a promise of $2,000 for nourishing food for her - and in paragraph 6 - a reference to the payment of $2,000 after the papers were completed.

5. The child was handed over to the applicants after the consent form was signed. A week or so later, Madam Lee contacted Miss Leung by telephone to say that she had changed her mind and wanted the child back from the applicants. She was then told that she could not get the child back because she had signed the consent form, and eventually after several telephone calls both by her and Mr. Cheung to Miss Leung and to the officer-in-charge of the Adoption Unit, the applicants were contacted and naturally enough, they refused to comply with Madam Lee's request. Several meetings were held as a result of her decision and these meetings were held at the Adoption Unit in the company of Mr. Cheung, but the applicants were adamant and eventually she was told that she could make a request for the return of her child when the application for an adoption order in respect of him was made in court. She was in the meantime not given any access to the applicants or to the child.

6. On about the 8th of June 1979 she was given a notice of hearing on the present application and on 16th July 1979 she was granted legal aid to oppose the application and she filed a notice withdrawing her consent to an adoption order of the said child on the 25th of July 1979.

7. The reason why she had a change of heart was that Mr. Cheung had in November 1977 asked her to live with him again in the new hut he was to build on Crown land in Kwai Chung and he wanted the child to live together with them. They eventually married on the 13th of July 1978 and the other reason why she had changed her mind was that Mr. Cheung who now earns a salary of $1,700 in a steady job, is able to provide a secure and steady home for both her and the child and that they are energetic and healthy being 37 and 28 years old respectively, and that they would be able to bring up the child with love and care, and that the said child would be brought up together with his younger sister who was born on the 14th of June 1979. Moreover, she says she had been informed by her doctor after the birth of the said daughter that her health would suffer if she had another child again.

8. It has been submitted on behalf of the applicants that Madam Lee has unreasonably withheld her consent to the adoption of the child in question because the said child has been with the applicants and cared for by them since he was four months old and that the adopted parents treat the child as their own. Although it has been stated that there may be some psychological disturbance for the child if his present surroundings were changed and inevitably they must be if he is to go back to his natural parents, there is however no medical or psychological report to support that statement in respect of the said child. The main thrust of the argument put forward by the applicants is that the natural parents of the child by reason of their previous behaviour towards each other, and against that background, their relationship is not a stable one and is one which is liable to break up in future.

9. Here again considering the situation at the date of hearing there is no evidence to indicate that such a situation envisaged by the applicants would arise in the near future. On the contrary the evidence indicates that Madam Lee and Mr. Cheung had made a determined and genuine effort to stabilise their relationship.

10. It is further submitted on behalf of the applicants that they are able to provide a more stable home and environment for the child by reason of their more affluent circumstances. While this may be true the correct test which has been applied in similar cases is that laid down by Lord Denning M.R. in re L (infants) 1962 1 Weekly Law Reports 886. There he says:

"In considering the matter I quite agree that: (1) the question whether she is unreasonably withholding her consent is to be judged at the date of the hearing; and (2) the welfare of the child is not the sole consideration; and (3) the one question is whether she is unreasonably withholding her consent. But I must say that in considering whether she is reasonable or unreasonable we must take into account the welfare of the child. A reasonable mother surely gives great weight to what is better for the child. Her anguish of mind is quite understandable; but still it may be unreasonable for her to withhold consent. We must look and see whether it is reasonable or unreasonable according to what a reasonable woman in her place would do in all the circumstances of the case."

11. In re W (1971) 2 All E.R. 49 Lord Hailsham, L.C, in referring to the above quoted judgment of Lord Denning, M.R. says:

"From this it is clear that the test is reasonableness and not anything else. It is not culpability. It is not indifference. It is not failure to discharge parental duties. It is reasonableness, and reasonableness in the context of the totality of the circumstances. But, although welfare per se is not the test, the fact that a reasonable parent does pay regard to the welfare of his child must enter into the question of reasonableness as a relevant factor. It is relevant in all cases if and to the extent that a reasonable parent would take it into account. It is decisive in those cases where a reasonable parent must so regard it.

I do not understand re K (an infant) as deciding anything different from what I have said. I specifically endorse the often quoted passage from Jenkins L.J., in which he said:

Exceptional, yes. But the test is still reasonableness, or its opposite, and reasonableness, or its opposite, must be judged, as Russell L.J. observed in the instant case, and as both counsel agreed, by an objective (as distinct from a subjective) test. Indeed, I cannot myself readily visualise circumstances in which the words 'reason', 'reasonable' or 'unreasonable' can be applied otherwise than objectively. And, be it observed, 'reasonableness' or 'unreasonableness' where either word is employed in English law, is normally a question of fact and degree, and not a question of law, so long as there is evidence to support the finding of the court. It seems to me that the passage in Jenkins L.J.'s judgment in re K (an infant) immediately following that which I have quoted above is too often forgotten and deserves to be better remembered. He said:

It is unnecessary, undesirable and, indeed, impracticable to attempt a definition covering all possible cases of that kind. Each case must depend on its own facts and circumstances.'

In my opinion, besides culpability unreasonableness can include anything which can objectively be adjudged to be unreasonable. It is not confined to culpability or callous indifference. It can include, where carried to excess, sentimentality, romanticism, bigotry, wild prejudice, caprice, fatuousness, or excessive lack of common sense."

12. Several examples of Madam Lee's culpability in failing to discharge her parental duties towards the child in question had been cited by the adoptive parents to support their claim that her with-holding of consent to adoption is unreasonable. But the charges had been in my view satisfactorily answered by her. The blame for the length of time the child has been left with the adoptive parents lies in the hands of other parties but not hers. And I ask the question: "Can it be unreasonable for her to withhold consent now when she had made several attempts a week or so after she had given her consent to the child being adopted by the applicants to recover her child?" I think not and the complaints made against her - the statement of facts annexed to the supplementary affirmation made by the adoptive parents in support of this application - are based on circumstances over which she had no control. But these matters although relevant are not of paramount consideration when the question is whether she is unreasonable in withholding her consent. But they do have some little relevance when considering the provisions of section 6(1)(c) of the Ordinance. In the same case, that is re W (an infant) Lord Guest adopted the judgment of Lord Sorn in A B and C B v. X's Curator (1963) S.C. at 124:

"As I see it, neither of these alternative ways of approaching the question is right. The proper way to approach the question is to look at the matter from the point of view of the parent and, having regard to the whole circumstances, to ask whether the parent's decision to withhold consent was an unreasonable decision for the parent to have made. It might be put something like this:- how would a parent, placed in the situation of the actual parent and having the qualities or defects of the actual parent, yet considering the situation reasonably, have decided the question? Would such a person have come to the conclusion that to refuse consent was unreasonable? Or, as Lord Denning, M.R., put it, in a case in which a mother was withholding her consent, 'We must look and see whether it is reasonable or unreasonable according to what a reasonable woman in her place would do in all the circumstances of the case'."

In all the circumstances of the present case I cannot say that applying all these principles she is unreasonable in withholding consent to her child being adopted by the applicants. Her application under section 5(5)(d) of the Ordinance is granted and accordingly the application of the adoptive parents for an order under section 4 of the Ordinance fails.

13. I think under that section [Section 5(5)(d)], I had better make an order that the child in question be returned to the respondent, Madam Lee, within 14 days hereof. In the meantime the natural mother or the parents are to have access to the child. They would have access by prior arrangement between the solicitors for the parties.

14. Costs to Respondent to be taxed under Legal Aid Regulations. Certificate for Counsel.