Re Infant
Read the full judgment text of HCMP 53/1977 on BabelCite. This High Court CFI judgment.
1. On 10th December 1971 a married couple (who I shall call the applicants) applied by originating summons under the Adoption Ordinance for an order that they be authorised to adopt a male child named at birth C and renamed by them Y (who I shall call the minor).
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HCMP000053/1977 IN THE SUPREME COURT OF HONG KONG ----------------- MISCELLANEOUS PROCEEDINGS NO. 53 OF 1977
and ADOPTION CASE NO. 307 OF 1971
----------------- Coram: Zimmern, J. Date of Judgment: 12th August, 1977. ----------------- JUDGMENT ----------------- 1. On 10th December 1971 a married couple (who I shall call the applicants) applied by originating summons under the Adoption Ordinance for an order that they be authorised to adopt a male child named at birth C and renamed by them Y (who I shall call the minor). 2. In the applicants' affirmation in support of their application the following facts are verified:-
3. On 15th December 1971 the Director of Social Welfare, the guardian ad litem entered an appearance for the minor. This matter was left in abeyance till 24th November 1976, when the Director of Social Welfare as guardian ad litem filed his report and applied for a date of hearing of the case. 4. The matter came before the Court on 22nd December 1976 and an order to set down for hearing on a date to be fixed by the clerk of the list was made. The father was represented by solicitors at the hearing. He is said to have objected to the making of the adoption order. 5. By way of originating summons under the Guardianship of Minors Ordinance dated 21st January 1977 served on the applicants as respondents the father applied for an order (1) that the custody, care and control of the minor and his sister ML (a minor) to be committed to him and (2) that the applicants deliver up the said minors into his custody. 6. The applicants were granted legal aid and an appearance was entered on 1st March 1977. Affidavits were filed and both matters came before me on 3rd June 1977. The parties' representatives agreed that both applications be heard together and I accordingly made the Consent Order. They also agreed that Mr. Tang for the applicants should start. Mr. Tang relied on the joint affirmation of the applicants affirmed on 27th July 1977 filed under the Cap. 13 proceedings and reminded me of the report of the guardian ad litem and the Departmental Clinical Psychologist which neither he nor counsel for the father had seen. Mr. Barretto for the father who did not wish to cross-examine either of the applicants on their joint affirmation then proceeded to call viva voce evidence. Before dealing with that evidence, this would be the right time and place to deal with the facts deposed to by the applicants in their joint affirmation. 7. It repeats the facts verified by their affirmation in the adoption proceedings set out above and further shows:-
8. In 1966 all was not well between the father and the mother out in the New Territories, in particular between the mother and the mother-in-law. They in that year quitted their jobs in the New Territories and rented premises in Electric Road firstly to avoid the mother-in-law and secondly to try and make a go of it in an urban area. To put it in a nut shell the father failed to make a living in the metropolis and was unable to support the mother and their children. He was in arrears with his rent and there was insufficient money for food. The female applicant did her best to help them. 9. The evidence is not clear on this point but it would appear that the minor was left behind in a nursery in the New Territories when the father and the mother moved to Electric Road in 1966. Any way the applicants say that sometime in 1967 the father had intended to give the minors away because of financial difficulties and that the mother asked them to adopt him. The applicants were led to believe that the father had given his consent. 10. Pursuant thereto on 2nd May 1967 the applicants and the mother went to the nursery in the New Territories and upon paying all the arrears due to the nursery they took the minor back to the applicants' home. There were Chinese ceremonies and the minor was renamed Y. He was then just over two years old and his sister ML living in the same home was then four and a half. They have since lived with the applicants. 11. The circumstances of the father and the mother went from bad to worse during the years 1968, 1969, 1970 and I am not clear eventually whether it was the father who deserted the mother or vice versa. It is clear that the other three children remained in Electric Road and the applicants did a lot to help them and the mother who was also receiving help from the Family Welfare Association. In 1971 the father took the two older boys to Taipo in the New Territories to serve as apprentices in his barber shop and in 1973 the elder girl followed suit and they have been together since. 12. In support of his application for custody, care and control under Cap. 143 the father made an affirmation on 21st January 1977. He further gave viva voce evidence and was cross-examined. The facts deposed to in his affirmation concerning his move from the New Territories to Electric Road in 1965 tally substantially to the facts deposed to by the applicants. Further the father acknowledges the help given to his family by the applicants all the years after 1965 but where they differ may be thus summarised. The father affirms that:
I think "1973" is a mistake as the evidence shows he was back in 1972 if not 1971. 13. Mr. Barretto called as witnesses an employee of the barber shop business, a relative of the father, a friend and the three elder children with the intent no doubt that I should be told what a good man the father is and that I should have a sight of the three elder children. 14. At the end of the evidence and before the addresses of counsel I told Mrs. Chan of the Social Welfare Department that I only had a confidential report on the applicants under the adoption proceedings and it would be of help if I had a confidential report on the father and his household. The father agreed to be interviewed and I have been supplied with a confidential report. 15. I now deal with the adoption proceedings: 16. The provisions of section 5 of the Adoption Ordinance do not allow me to make the adoption order applied for unless:-
17. As to whether both the parents have given their consent, I have no doubt that the mother has, but the father has not, Mr. Tang, quite properly in his final submission, never relied on the intimation in the applicants' affirmation that the father had given his consent but boldly asked me to exercise my discretion under section 6 to dispense with his consent. I cannot leave it at that for it is clear on the evidence before me that in their anxiety to adopt the minor in 1971 they were not frank with the Court and with the Social Welfare Department. 18. I refer to the Statutory Form 3 being statement in support of application for an adoption order signed by them on 10th December 1971. In paragraph 5 of the said form they acknowledge that the minor is the child of father whose last known address was 127 Electric Road, 4th floor, Hong Kong. In paragraph 9 they request the judge to dispense with the consent of the father on the ground he is untraceable. Let this be compared with the evidence set out in paragraph 33 of their affirmation of 27th May 1977 reading as follows:-
The adoption proceedings were started on 10th December 1971 yet there was no application for a date of hearing till 24th November 1976. I asked Mrs. Chan the guardian ad litem the reason therefor. From her records she told me that in December 1971 the father could not be located at 127 Electric Road. Of course he could not be located there as the applicants in their affirmation stated quite clearly that the three elder children had moved from 127 Electric Road to 88 Electric Road certainly in 1970 and possibly before. Mrs. Chan further told me that the father was located in the second half of 1972 and he told the Social Welfare Officer that he objected to the proposed adoption. I have no doubt whatsoever that the applicants knew at all times that the father would not give his consent to their adoption of the minor and they went so far as to mislead the then Social Welfare Officer as to the whereabouts of the father. Furthermore they applied to set down the matter for hearing in November 1976 because by then the father was demanding the return of both of his children with them (see paragraph 14 of the father's affirmation of 21st January 1977). Having said all this let me say further the applicants acted in the manner they did first because I do not think they realise the seriousness of it all and secondly for them from the best possible motive - their deep love for and anxiety to adopt the minor. On the matter of consent Mr. Tang for the applicants took a further point and that is the father's consent was not necessary as there is no evidence that the father and mother were married. Indeed he says the evidence is to the contrary and he relies on paragraph 3 of the father's affirmation which in part reads:-
19. Mr. Barretto's answer to this was: 20. First the applicants did not make it an issue in their statement in support of the application (Form 3) which they were bound to if the minor was illegitimate and they cannot do so now. Secondly even if there is no evidence of a Chinese marriage ceremony the fact of long cohabitation resulting in five children is sufficient to constitute a common law marriage and all the five children are legitimate. Without deciding his first argument I find he is right on the second. This then disposes of the consent issue. 21. I now turn to whether I should exercise my discretion and dispense with the consent of the father under section 6(1) of the Adoption Ordinance which read as follows:
22. Mr. Tang for the applicants does not rely on section 6(1)(a), (b), (c) but in all the circumstances of the case I should form the opinion that the father's consent ought to be dispensed with. I cannot agree. The consequence of an adoption have been highlighted in many law reports and do not require repetition. 23. The minor was deposited with the applicants when slightly over two years of age through their parents then in dire circumstances. There was no condition to this deposit. I have no doubt that there existed and exists today a deep bond of love and affection between the applicants and the minor; but the applicants knew and knew at all times that the father was against their adopting his son. The applicants were free at any time to return their son to his father but chose not to do so. They hung on to the child primarily because of their love for him but no doubt also because they hoped that the father would one day give his consent. I do not believe that the applicants or the minor ever lost touch with the father for any length of time or at all. There is evidence that in later years the minor has spent part of his holidays with his father, brothers and sisters at his father's home in Taipo. The younger sister has lived with him at the home of the applicants for now some ten years. She will be returning to her father's home in the near future as will appear when I deal with the custody matter. Is a court with one stroke of the pen going to say to this minor your father who you know to be your father is no longer your father, your brothers and sisters including one sister who has lived with him all these years are no longer your brothers and sisters. Without the most cogent reasons no court would do so and I see none in this case. I know that this twelve-year-old boy loves the applicants and prefers to live with them, nay to be adopted by them. Even with this knowledge in mind I am completely unable to form the opinion which I have been asked to form. This boy gains nothing by adoption though he might suffer some emotive discomfort for a time from non-adoption. I have not yet dealt in this issue with the matter of the welfare of the minor but what I say about it in the next issue applies herein. 24. The application for the proposed adoption order is dismissed with costs. There will be a certificate for counsel. Applicants and the father' costs to be taxed in accordance with Legal Aid Rules. 25. I turn now to the application of the father under Cap. 13 for the custody of his son and his younger daughter. The respondents are the applicants in the adoption proceedings and I shall continue to refer to them as the applicants. There is no claim by them for custody, or care and control by them in this issue. 26. So far as the younger daughter is concerned from what I can gather from Mr. Tang the attitude is best expressed in paragraph 47 of the applicants' affirmation.
This younger daughter now aged fifteen is not a bit adverse to joining her father, brothers and sisters at Taipo. I have seen her in chambers. As for the minor, I have not been told whether the applicants still want him without the formality of an order of adoption but by the tone of their affidavit I am prepared to assume that they do. Further I am prepared to assume without a counterclaim that I have the power in this case to deprive the father of the custody, care and control of the minor. If I err in this I shall err on the right side for even without competing claims I shall still in deciding this matter have regard to the welfare of the minor as the first and paramount consideration. 27. In weighing the scales where it comes to natural love, affection and bond, it is heavy in favour of the applicants. It is said that the father wants the son back not by reason of his love and affection for him but by reason of egotism - the local boy in his own rural area having made good wants to show the world that he can maintain his children. Even if true ought that to be held against him. He is the father and both in law and morally the duty is on him to support his infant children. Is the motive that important when the father's desire is to have his own son back and maintain him to the best of his ability. The father has been in adversity but other than a hint that he used to gamble, there is no suggestion that he has serious vices. Indeed a witness was called on his behalf. His name is Chan Chi-man. His evidence is short and to the point. He said:
This was a sincere statement by an elderly farmer and I accept it. Let me also say that character-wise there is nothing against the applicants. I now compare the two homes. The male applicant is a tailor with his home in a cubicle in Electric Road. He does not appear to have advanced very much in life over the years. The father today is better off than the male applicant both in income and in living conditions. They both would be able to give the minor the same sort of education. Having heard the evidence of the other three sons and having seen and heard the minor in chambers I have come to the conclusion that scholastically they are all on par - definitely on the low side. The minor's three elder brothers are apprentice barbers. It would not be long say three or four years before the minor is an apprentice barber, tailor or in some other trade. The minor's siters strike me as far more able and capable. The next few years will be important for the minor and I have no doubt that so far as his welfare is concerned he would be far better off with his own father, brothers and sisters at Taipo than with the applicants at Electric Road. There is more security in a big family. This in my opinion outweighs everything else including any emotive feeling which might manifest itself on leaving his home with the applicants for so many years. Also the minor will not be parted from his siter ML. I grief for the applicants but the welfare of the minor must come first. The application of the father is granted in terms. I shall make no order as to costs on the application as the applicants' appearance was no more than a formality. Applicants costs to be taxed in accordance with legal aid scale. Representation: Barretto (Edmund Cheung & Co.) for applicants in M.P. 53/77. R. Tang (Raymond Tang & Co.) for respondents. R. Tang (Raymond Tang & Co.) for applicant in Adoption Case 307/71. Barretto (Edmund Cheung & Co.) for natural father of respondent. Mrs. Chan of Social Welfare Department, guardian ad litem, for respondent. |