Director of Social Welfare v. Dt

HCMP 1620/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.1620 OF 2007

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Before : Hon Hartmann J in Chambers (Not open to public)

Date of Hearing : 15 February 2008

Date of Judgment : 29 February 2008

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J U D G M E N T

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1.This is an application made by the Director of Social Welfare (‘the Director’) for an order that he be permitted to arrange for the adoption of a child against the wishes of the natural mother.  The child is a girl named DH who was born in Hong Kong on 15 August 2001 and is now six years of age.  The defendant is her mother.

2.This application came before me originally on 17 October 2007.  The mother was not present at the beginning of that hearing but arrived at court shortly before the hearing concluded.  She protested that she did not wish to give up her daughter for adoption.  In the circumstances, I adjourned the matter, giving the mother the opportunity to seek legal aid.

3.Legal aid was obtained and the solicitors instructed to represent the mother were able to prepare a full affirmation setting out her case.  Regrettably, however, legal aid was discharged a day or so before the hearing.  The mother was, therefore, deprived of the benefit of legal representation at the hearing itself.

4.This application by the Director is made under the Adoption Ordinance, Cap.270.  The Ordinance directs that no order for adoption shall be made unless the consent of the parent, or parents, has first been obtained.  However, in certain limited circumstances, this court may, by its order, dispense with such consent.  In this regard, s.6(1) of the Ordinance directs that :

“The Court may dispense with any consent … if it is satisfied —

(a)    in the case of a parent or guardian of the infant, that he has abandoned, neglected or persistently ill-treated the infant;

(b)   in the case of a person liable by virtue of an order or agreement to contribute to the maintenance of the infant, that he has persistently neglected or refused so to contribute;

(c)    in any case, that the person whose consent is required cannot be found or is incapable of giving his consent or that his consent is unreasonably withheld,

or if it is of opinion that such consent ought, in all the circumstances of the case, to be dispensed with.” 

5.In this case, the Director of Social Welfare contends that, in all the circumstances, the mother has unreasonably withheld her consent and that accordingly this court may make an order dispensing with the mother’s consent in terms of s.6(1)(c).

6.I have spoken so far of one parent only, the mother.  The natural father of the child is apparently a man named TC, for a period of time the mother’s lover.  Mr TC, it appears, left Hong Kong in 2001, the year of the child’s birth, returning to his home country, Vietnam.  All trace of him has been lost since that time.  There is no evidence that he has ever attempted to contact the child or has in any way sought to provide any kind of maintenance for her.

7.It should be said that a year or so after the birth of the child’s elder sister, the mother married a man by the name of TM.  The marriage lasted for some ten years, ending in divorce in 2003.  Mr TM died in July 2007.

8.It is a sad fact that for much of her adult life the mother has been addicted to heroin.  Indeed, when her daughter was born, the child herself was found to be suffering from symptoms of drug withdrawal.  The mother also has a poor criminal record, not only for drugs but for theft.  The records show that between 1995 and 2005 she was imprisoned on nine occasions.

9.Nor is there any evidence that the criminal conduct has ceased.  In December 2007, about one month after the original hearing in this present matter was adjourned, the mother was arrested on two counts of theft.  The items stolen were mobile telephones.  In order to attend the hearing before me, the mother had to be brought from remand prison.  As to those charges, during the course of the hearing, the mother informed me that, when her trial takes place in the District Court, it is her intention to plead guilty.  She appreciates that she is likely to have to serve a term of imprisonment in excess of a year, only being released in 2009.

10.Accordingly, even if I refuse the application made by the Director, the mother will be separated from the child for at least another year.

11.As it is, however, the mother has only enjoyed intermittent contact with her daughter since the summer of 2003 when the child was just two years of age.  It was in 2003, the mother being incapable of providing for the child, that her daughter was taken into care by the welfare authorities and placed under the protection of foster parents.

12.The following year, in June 2004, by an order of the Juvenile Court made pursuant to s.34(1)(a) of the Protection of Children and Juveniles Ordinance, Cap.213, the Director was appointed legal guardian of the child.  That appointment remains in force.

13.The mother’s innate desire to care for her child and provide a home for her is not really disputed.  What is disputed, sadly, is her ability to put her own life into sufficient order to be able to give realistic effect to that desire.

14.In this regard, in his affirmation of 24 August 2007, Mr Yim Chun Hung, a social work officer and Officer-In-Charge of the Tuen Mun (East) Integrated Family Service Centre, spoke of more than one occasion when the mother’s avowed intent to put her life in order so that she could care for the child came to nothing.  He has described one such occasion in the following terms :

“On 6 December 2004, Madam DT [the mother] was sentenced to imprisonment at the Tai Lam Centre for Women for the offence of theft.  During her imprisonment, our social worker discussed with her (on 9 June 2005) the infant’s permanency plan and proposed to arrange for the infant’s adoption in order to safeguard and promote the infant’s welfare.  However, Madam DT expressed her wish to reserve her parental rights over the infant and promised inter alia to stay away from drugs, visit the infant regularly and, with the support of the Department, provide good care to the infant. …

However, after an early discharge from prison on 30 June 2005, Madam DT failed to honour her promise.  Same as before, she had no fixed abode or valid means of contact.  She only visited the infant once on 19 July 2005.  Later, she was caught for another offence of ‘Trafficking of Dangerous Drugs’ in October 2005 and sentenced to 16-month imprisonment at the Tai Lam Centre for Women on 4 November 2005.”

15.Essentially the same scenario played itself out after the mother was released from prison in August 2006.  Yes, she did work on a construction site for a period of time and, accompanied by a social worker, was able to visit her daughter on some four occasions.  She also agreed to see a clinical psychologist so that her readiness for parenting could be assessed.  However, as Mr Yim expressed it in his affirmation, her co-operation lasted for a short period of time —

“After March 2007, our social worker failed to get in touch with her despite repeated phone calls and visits to her friend’s home in Tuen Mun.  Madam DT has paid no further visit to the infant after 23 February 2007.  She has also failed to attend interviews with the clinical psychologist …”

16.In her own affirmation, dated 13 February 2008, the mother stressed that she had done her best to co-operate with the social welfare authorities.  She said, however, that she was frustrated by the restrictions imposed upon her governing access to her child.  Access had to take place in the offices of the social welfare authorities which was not ‘a free and pleasant environment’.  Access was therefore stressful and artificial.  The mother said that, during the Lunar New year celebrations in early 2007, the child was brought to her home.  Her family members had gathered for dinner and they all wanted the child to stay for dinner.  But the request was refused. After this, said the mother —

“… I became reluctant to give my co-operation to the case workers about further access because I lost faith in the case workers.  I thought they were discriminating against me.  I therefore deliberately did not answer their calls.  I now realize it was foolish of me to express my discontent that way.  That explained my failures to attend the scheduled appointments with the psychologist and to maintain regular contact with the case workers.”

17.As to her future plans for the child, the mother said the following in her affirmation :

“Due to my present situation, I am unable to implement any of my child care plans before the sentence is fully served.  With good behaviour … I hope that I will be released in about mid 2009.  I plan to find a job immediately after my release, such as jobs in a restaurant or on construction sites.  I will try my best to establish a healthy financial foundation and to have a stable fixed place of abode.  I will keep close contact and maintain meaningful communication with the case workers on all relevant matters concerning the infant so that her best interests will be properly looked after. …”

18.During the hearing, however, the mother said that her plan was now to send the child back to be with her family in Vietnam.  But she could provide no concrete details of that plan, no details of where the child was to live, with whom and in what circumstances.  There was no evidence that anybody in Vietnam was even prepared to receive the child.

19.This brings me back to the central question.  While it is recognised that the mother has expressed the best of intentions on a number of occasions, is there objectively any realistic prospect – even in a year or so when the mother comes out of prison – that she will be able to provide the child with a stable home environment? 

20.History, of course, is never an exact indicator of the future.  But it may be a guide.  In this regard, in looking to all relevant circumstances, I cannot ignore the fact that, in addition to her daughter, the mother has two other children.

21.The mother has a son, the youngest child, who was born in July 2007.  This child too exhibited symptoms of drug withdrawal at birth and has been in foster care since birth.

22.But of more immediate relevance to the present application is the fact that the mother has an elder daughter, TH, who was born in September 1991 and is now 16 years of age.  Regrettably, this eldest child has not had a happy upbringing.  A social enquiry report prepared in June 2004 said the following of her :

“TH was caught for stealing mobile phones 8 times from 2000 to 2003.  She was put on police discretion once and Care or Protection Order twice.  Yet, without proper childcare and parental guidance, she committed three other similar offences.  She has been put on probation thrice.  She was ordered to receive 9-month training in Fanling Girls’ Home effective 8 August 2003.”

23.Elsewhere in the same report, the mother is blamed for failing adequately to care for and supervise TH and for failing to make regular visits to her daughter when she was in the Fanling Girls’ Home.  In this latter respect, the following is said :

“Upon repeated advice and prompting, she had slight improvement in the recent month.  Yet Madam DT [the mother] changed her living place frequently.  In the past 10 months, she changed living abode at least 5 times without informing us promptly.  It was difficult to contact her as no reliable telephone numbers was provided and she had no mobile phone. …”

24.As to the present circumstances of the eldest daughter, it appears that, in December 2007, she was arrested with her mother in respect of the theft of mobile telephones.  The eldest daughter was given bail subject to the condition that she reported to a police station.  She apparently failed to do so.  As at 15 February, therefore, when the hearing before me took place, the eldest daughter had gone missing, being wanted by the police.

25.The history of the eldest daughter does not set a good precedent.

26.But that being said, it is no small thing to take from a mother all her rights in her child, giving that child over for adoption.  In a society like Hong Kong based on the sanctity of the family I believe it should only be done in the clearest of cases.

27.S.6(1) of the Adoption Ordinance provides that this court may dispense with the mother’s consent if her consent is unreasonably withheld.  I am enjoined by the statute, therefore, to consider whether, in all the circumstances, the refusal by the mother to give her consent is – judged objectively – unreasonable.  In his speech in In re W. (an infant) [1971] AC 683, in considering the English statutory provision to the exact same effect as s.6(1), Lord Hailsham described the test in the following terms :

“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.”

28.What is or is not reasonable is, of course, a question of fact and degree. 

29.In my view, the test – in this case – may be expressed in the following question.  Recognising that, if at all possible, for the benefit of both parties, a mother should be able to raise her own child, is the mother nevertheless, in declining to give consent, refusing to acknowledge the realities that point so clearly to her inability – past, present and future – to be able to care for her child and, in that refusal, is she prejudicing the child’s manifest best interests and thereby acting unreasonably?

30.In answering that question, considering the factors that I have outlined earlier in this judgment, I am more than satisfied that the mother’s refusal to give her consent, judged objectively, is unreasonable.

31.Adoption offers this child a real prospect of happiness and fulfilment in her life.  The alternative is bleak at best and indicates a future in which, as in the past, mother and child will have only intermittent contact. 

32.I will, therefore, grant the orders sought by the Director.  In so far as it may be necessary, I will also grant an order pursuant to s.6(1) in respect of the child’s natural father, TC.

Ms Michelle Chui, GC of Department of Justice, for the Plaintiff

Defendant in person