Re W., An Infant

HCAD000264/1970

IN THE SUPREME COURT OF HONG KONG

Adoption Case No. 264 of 1970

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Coram: Huggins, J.

Date of Judgment: 4 June, 1971.

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JUDGMENT

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1. The question which now arises upon this originating summons is one of general importance and I have adjourned the matter into Court for the purpose of delivering my ruling. This being an adoption case the names of the parties should not be published.

2. The two Applicants ask that they be authorised to adopt W, an infant now aged 17?years. They are husband and wife but W is the illegitimate son of the wife by a man with whom she had a liaison before she met her husband. Subject to one matter all the requirements of the Adoption Ordinance have been fulfilled and I see no impediment to the adoption. However, the Applicants do not, for obvious reasons, wish that W be told of his illegitimate status. Whether or not the possible harm which may flow from telling him now will exceed that which might flow from his learning the truth at some later date, e.g. after he has entered into an engagement to be married, is not a question I am required to consider. What s.8 of the Ordinance says is, in part:

It appeared to me in the light of the report I had as to W's educational attainment that it would be impossible for me to say that having regard to his age and understanding his wishes in the matter should carry no weight. I thought it was implicit that an infant of his age must be informed of the proposed adoption even if that would unavoidably result in his having to be told of the reason why an adoption was sought. I adjourned the summons for counsel to be instructed.

3. The submission now made on behalf of the guardian ad litem is that the law in Hong Kong recognises a difference in approach to illegitimacy in the East from that in the West where, counsel suggests, it is more readily accepted as a misfortune for the illegitimate child. The correctness or otherwise of that suggestion could be ascertained only by a sociological study which it is no part of my function to conduct, but I would observe that the Common Law certainly offered little comfort to the illegitimate child. Counsel points out that in England s.7 of the Adoption Act 1958 is in comparable terms to those of our s.8(1)(b) but that there is in Hong Kong no equivalent to rr.11 and 13 of the Adoption (County Court) Rules 1959. Rule 11 provides:

"Where the guardian ad litem reports to the court that in his opinion the infant is able to understand the nature of an adoption order, the registrar shall serve on the applicant a notice in Form 6."

Rule 13 then says:

"Where the applicant has been served with a notice in Form 6, the judge shall not make an adoption order or an interim order unless -

Counsel argues that the absence of similar rules from our law indicates an unwillingness on the part of the Legislature to compel disclosure of the fact of adoption to the infant, although he concedes that in England there could he no question of withholding notice of the proposed adoption from a normal infant of 17?years (and in my view nothing turns upon the recent reduction there of the age of majority). In Re J.M. Carroll⁽¹⁾ has been relied upon. The substance of that case is contained in the following passage from the judgment of Scrutton L.J. at p.336:

"But in my opinion (the Court) has this duty, where the character of the parent is not attacked, to give effect to the views as to religious education of the parent of a child too young to have intelligent views of its own."

I accept the case as authority for the proposition there stated, which, of course, is applicable to any question with respect to the custody or upbringing of the infant, but it is not authority upon the question I have to decide. In the present case W is not too young to have intelligent views of his own upon any matter which I think is relevant.

4. While I naturally regret being unable to comply with the wishes of the Applicants I am not persuaded that the submission on behalf of the guardian ad litem is sound. Under our s.8(1)(b) and under its English equivalent the court has to be satisfied that the making of an adoption order is for the welfare of the infant. The welfare of the infant is relevant to the issue Adoption or no adoption? and not to the subsidiary issue Must the court ascertain the wishes of the infant on the matter of adoption? The rules upon which reliance has been placed do not, in my view, affect the real issue: they are merely concerned with the machinery by which (a) the court is informed of the degree of understanding of the infant and (b) the court is enabled to satisfy itself as to the wishes of the infant before deciding whether to make an adoption order. I have no doubt that W is of such age and understanding that he could fairly expect to be consulted upon so grave a matter as his adoption. As I have indicated, what I have to consider is the desirability of making an adoption order at all and not the desirability of risking the revelation of the infant's illegitimacy. The Applicants, by virtue of their applying for an adoption order, necessarily represent that the making of such an order is for the welfare of W. They cannot impose conditions upon the court. The guardian ad litem does not contend that the making of an adoption order is not for the welfare of W: he also, in effect, is seeking to impose a condition upon the court. I do not think I am at liberty to do what is asked. Being of the view that W is of an age and understanding to have an opinion of his own on the matter, I have to ascertain his wishes before declaring myself satisfied that the making of the order sought is for his welfare. He must be told of the application and I shall require that he attend in chambers in order that I may ascertain that his wishes are freely expressed.

5. It may well be that the Applicants do not want to broach the subject with W at this point in the academic year. This is a matter entirely for them, although I hope they will consult the guardian ad litem. I shall adjourn the summons sine die with liberty to restore.

6. If it be thought that as a matter of policy it is desirable that in circumstances such as those which have arizen in the present case it should be possible for this Court to make an adoption order without consulting the wishes of the infant the matter can be drawn to the attention of the Legislature.

Representation:

(1) 1931 1 K.B. 317