Re Philips, Diana Kit Yan

Adoption Case No. 2 and 3 of 1985

Headnote

Adoption - application by divorced mother with custody of children and step-father - applicants holders of British passports - children in mother’s passport but with restriction, “no right of abode” - children not entitled, as of right, to British citizenship - question of nationality and right of abode of children not a proper matter for consideration by the court.

IN THE HIGH COURT OF HONG KONG

CIVIL JURISDICTION

ADOPTION CASE NO. 2 and 3 of 1985

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Coram : de Basto, J.

Date of Hearing : 9th and 10th December, 1985

Dates of Delivery of Judgment : 21 FEB 1986

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J U D G M E N T

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1. The applicants for an adoption order are the natural mother (“the mother”) and the step-father of the two children the subject matter of the application.

2. The natural father (“the father”) opposes the application.

3. The mother and the father were married on the 22nd September,1970 and they had two daughters, Esther born on the 7th May, 1973 andDiana born on the 2nd August 1976.

4. In mid-1978 the step-father began seeing the mother and on the 3rd February, 1979 the mother and the father entered into a Deed of Separation under which, among other things, the father agreed to contribute towards the maintenance of the two children.

5. The mother initiated divorce proceedings on the 3rd February, 1981 and in a document entitled “Arrangementfor Children” dated the 13th March, 1981 the mother proposed to the court that she herself should be the sole provider for the children and since that date the father has not, as I understand it, made any further financial contributions to the maintenance of the children.

6. The marriage of the mother and the father was dissolved on the 23rd May, 1981 the court granting the mother custody of the two children with reasonable access to the father.

7. The applicants by a supplemental affidavit sworn on the 5th October, 1985 set out, inter alia, the reasons why they say the father’s consent is being unreasonably withheld including their contention that the father’s objection is “only directed to the change of surname of the children and not their status with the applicants”.

8. The father in an affirmation dated the 27th November, 1985 states his objection to the adoption and the reasons therefore. These include that he loves the children, that he has regularly being seeing the children once or twice a month and that it would be unreasonable to deprive him of his right of access to his children granted to him under a court order.

9. The children have been living with the mother and the step-father for about 4 years.

10. In proposals for adoption the dutyof the court is definedby Section 8 of the Adoption Ordinance, Cap. 290. Under that Section, before making an adoption order the court is directed that it:‑

“Shall be satisfied - (a) that every person whose consent is necessary under this Ordinance, and whose consent is not dispensed with, has consented to and understands the nature and effect of the adoption order for which application is made, and in particular in the case of any parent understands that the effect of the adoption order will be permanently to deprive him or her of his or her parental rights; (b) that the order if made will be for the welfare of the infant, due consideration being for this purpose given to the wishes of the infant, having regard to the age and understanding of the intant; and (c) (irrelevant for the purposes of this case).

11. Thus while in custody cases the welfare of the child is the first and paramount consideration in adoption proceedings the welfare of the childis the second of three separate conditions as to each one of which the court has to be separately satisfied, and the first of which is that the consent of the parent must be forthcoming at the time of the hearing, unless the consent has been dispensed with by the court under the other provisions of the Ordinance.

12. As was said by Hailsham, I.C. in Re W (an infant) (1971) A.C. 682 at 693

“The difference, it need hardly be said, is due to the different nature and effect of the orders sought in the two classes of cases. In custody cases what is in question is the custody, care or control of the child, or perhaps theadministration of his property, and that is why his interest is the first and paramount consideration. But in adoption cases, what is in issue is the parent-child relationship itself and in that relationship the parent as well as the child has legitimate rights”. Under Section 13(1) of the Adoption Act 1958, on an adoption being made:‑

‘…… all rights, duties, obligations and liabilities of the parents .... in relation to the future custody, maintenance and education of the infant …… shall be extinguished, and all such rights, duties, obligations and liabilities shall vest in and be exercisable by and enforceable against the adopter as if the infant were a child born to the adopter in lawful wedlock; and in respect of the matters aforesaid .... the infant shall stand to the adopter exclusively in the position of a child born .... in lawful wedlock’.

The new relationship extends even to the adoptive parents’ right to give or withhold consent to marriage and serves to bring the adoptive brothers and sisters within the prohibited degrees of matrimony. The result is that in the Adoption Act 1958 Parliament has enacted provisions for the protection of natural parents the normal effect of which is to enable the natural parent to veto an adoption order unless one of the exceptions which it provides enables the court to dispense with parental consent.

13. Section 13(1) of the Adoption Act, 1958 is reproduced in Section 13(1) of the Adoption Ordinance.

14. The power to dispense with the consent of a parent in adoption proceedings is contained in Section 6 of the Ordinance:-

“(1) The Court may dispense with any consent required by section 5(5) 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 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.

(2) The Court may dispense with the consent of the spouseof an applicant for an adoption order if satisfied that the person whose consent is to be dispensed with cannot be found or is incapable of giving the consent or that the spouses have separated and are living apart and that the separation is likely tobe permanent or if it is of opinion that such consent ought, in all the circumstances of the case, to be dispensed with;”

15. The above section is based on Section 3 of the AdoptionAct, 1950 which now appears as Section 5 of the Adoption Act, 1958. In Re W (an infant) (supra) held that:‑

“Section 5(1)(b) of the Act of 1958 (Section 6(1)(c)of the Adoption Ordinance Cap 290) laid down a test not of culpability or of callous or self-indulgent indifference or of failure or probable failure of parental duty or of potential lasting damage to the child but of reasonableness in all the circumstances; that, although welfare per se was not the test, the fact that a reasonable parent paid regard tohis child’s welfare made welfare in any particular casea more or less relevant or decisive factor depending on how the reasonable parent would regard it: that reasonableness was to be judged by an objective test, though the court was not entitled simply to substitute its own view for that of the parent, and was normally a question of fact and degree and not of law so long as there was evidence to support the court’s finding; that unreasonableness could include anything which could objectively be adjudged to be unreasonable.”

16. The step-father contended that unless an order for adoption were made, he would not be, nor have the powers of, a guardian but he agreed that those powers could be exercised by the mother.

17. The main argument advanced by the applicants was that unless an adoption order were made, the children would not be entitled to British citizenship and to British passports and that without these the children would not have a right of abode in the United Kingdom. I might here mention that Section 1(5) of the British Nationality Act, 1981 provides that an adoption order made by any court in the United Kingdom in respect of a minor not a British citizen, would, by virtue of such an order, make the minor a British citizen, provided that at the time of the order at least one of the adopters is a British citizen.    There is no similar statutory provision in HongKong or, as far as I am aware, in anyother British Dependent Territory. The step-father and mother are holders of British passports. The children are now in the mother’s passport but with the restriction “no right of abode”.

18. Neither of the children was born in the United Kingdom and neither the mother nor the father was a British citizen whether by birth or descent at the time of the birth of the children. Thus neither of the children is entitled, as of right, to British citizenship but if an application, under Section 3 of the British Nationality Act, 1981 were to be made for their registration as British citizens; the Secretary of State “may, if he thinks fit” cause them to be registered as British citizens. A senior immigration officer testified that applications of that kind were uncommon, indeed, she said she was not personally aware of any case in which the Secretary of State had granted citizenship in circumstances like the present case.

19. As for British passports these are issuedunder the Royal prerogative and the Secretary of State has a discretion to accede to or to refuse an application for a British passport (see Secretary of State v. Lakdawalla (1972) Imm. A.R. 26). In the circumstances of this case I do not think that the question of whether the children might or might not be granted British citizenship or British passports is a matter which ought properly to be considered by the court.

20. Both applicants gave evidence as did the father. The step-father very properly and fairly said that he did not deny the father’s love for the children nor his right to access. I am satisfied, indeed it is not really in dispute, that the father has regularly been exercising his right of access once a month. I do not doubt the father’s love for his children nor the genuineness of his desire to exercise his right of access which right would cease if an adoption order were made. Nor do I doubt the sincerity of his reluctance that the children should have a different surname from his own, especially a non-Chinese surname.

21. I appreciate equally that the applicants would like the children to have the same surname as themselves but, as Sir George Baker, P. said in Re D Minors (1973) 3 All E.R. at 1007 in relation to the change of a child’s name:

“ ….. it cannot by itself be a legitimate ground for adoption, or generally in the interests of the children”.

22. I think all the parties before me were sincere in their motives.

23. Having spoken to the children I an satisfied they are perfectly happy living with the mother and step-father and that, further, they would not be happy to have to live with the father.

24. The father has withheld his consent to the present application. It follows that I must not make an adoption order unless I am of the view that the withholding of the father’s consent is unreasonable. Even if I were so to find, I would have to decide whether I should exercise my discretion to dispense with his consent.

25. I cannot say that the father is unreasonably withholding his consent.

26. However, even if I thought otherwise, I would still not have dispensed with his consent.

27. In Re B (a minor) 1975 2 All E.R. 449, a case also involving adoption by one parent after remarriage with the other parent not consenting, Sir George Baker, P said at 460:-

“I accept the submission for the father that the discretion to dispense with consent should be even more sparingly used in the present type of case where there has been remarriage ....”

28. In the same case, Bagnall, J. said at I. 464:-

“On the general issue I would desire to add a few further observations. There is a body of opinion that where there is a divorce followed by remarriage and a very young child, the best course for the child is to make a complete break and allow the child to be brought up exclusively as a member of the new family established by a parent and a step-parent. That this view has not found favour in these courts is clear from recent decisions of the Court of Appeal to which I need not refer. Nevertheless it may well be that where all parties are in agreement and the relevant parent consents, it can be established that adoption by a parent and the step-parent is for the welfare of the child. In such a case the other parent agrees, so to say, to disappear wholly from the child’s life and to accept a change of the child’s legal status. Even there I think that parents should hesitate long and think carefully before taking such an irrevocable step. Cases such as this, where the relevant parent refused to consent to adoption, are quite different. The advantages which adoption may bring to the child can almost always be secured without a change in legal status. Where the application is made by a parent and a step-parent after divorce and remarriage, I am of the opinion that only in very rare and wholly exceptional cases will it be possible to say that adoption against the wishes of a present and expostulating parent is for the welfare of the child. I am likewise of opinion, where such an application is made, that again only in very rare end wholly exceptional cases should it be said that a father who says, ‘I do not wish my son to become in law the son of another man’ is acting unreasonably. I think it is inadvisable that adoption applications in cases such as this should in any way be encouraged”.

29. The situation of the mother having custody of the children by a previous marriage and having remarried is by no means out of the ordinary - there must be many families in this situation and they live in harmony and affection without the need for adoption.

30. In my view, there is nothing very rare or wholly exceptional in the case before me. The applications are dismissed.

Applicant in person.

Mr TSE Hon instructed by Messrs. P.H. SIN & CO. for Opponent.

Director of Social Welfare.