Director of Social Welfare v. Wmy

HCMP1292/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.1292 OF 2011

---------------------------

---------------------------

BETWEEN

---------------------------

Before : Hon Poon J in Chambers (Not Open to Public)

Date of Hearing : 31 October 2011

Date of Decision : 31 October 2011

Date of Reasons for Decision : 18 November 2011

----------------------------------------------------

REASONS FOR DECISION

----------------------------------------------------

INTRODUCTION

1.This was the application of the Director of Social Welfare for an order declaring that the two minors, C and D, free for adoption and dispensing with their mother’s consent.

2.The application first came before me on 19 October 2011.  The defendant was absent.  She was in fact untraceable.  The notice of hearing was served at her two last known addresses and her sister’s address. The relief sought by the Director, if granted, would permanently sever the defendant’s maternal relationship with her two children without her consent.  This is a most serious invasion of parental rights, which the court would sanction only after hearing the defendant or in her absence only after all reasonably practical efforts to bring the proceedings to her attention had been made.  So although the defendant was untraceable and service at the said addresses would suffice in ordinary civil proceedings, I took the view that the Director should take the extra step of serving the notice of hearing on her by way of substituted service by advertisement in newspapers.  I so directed the Director and adjourned the matter to 31 October 2011.

3.I hope substituted service by advertisement in addition to the usual service at the last known address will in the future become a standard practice for adoption cases where a parent is untraceable.

4.On 31 October 2011, the defendant was again absent despite further service at the two last known addresses and the substituted service.  I proceeded to deal with the matter in her absence. After hearing Ms Man for the Director, I allowed the application.

5.These are the reasons for my decision.

BACKGROUND

6.The defendant was born in Hong Kong.  She is now aged 32.  Her present whereabouts, as noted, is unknown.

7.She previously worked as a cashier in a billiard house and a waitress in a local bar on irregular basis.  She is a drug addict, having abusing “ice” for some years.  She was put on probation for drug-related offences in September 2006 but soon relapsed.  Since then she had been referred to the Social Welfare Department.  She is not a recipient of social security payments.

8.She had intimate relationship with different men throughout the years and gave birth to four illegitimate children.  She had a more stable relationship with a Mr X.  Mr X is also a drug addict.  He had been sentenced to imprisonment for trafficking.  He used to be a construction worker but his present occupation is unknown.

9.She first gave birth to a boy, A, while cohabiting with a Mr Y some 13 years ago.  She took care of A until he was one when she entrusted him to a friend.  She then disappeared.  A had been under the friend’s care until he turned 7.  He was then taken care of by another carer, with whom he did not get along well.  Since August 2007, A has been under residential care.  He is now staying in the Wan Tsui Home for Boys.

10.The defendant gave birth to another son, B, in July 2007.  She was then cohabiting with Mr X.  B exhibited drug withdrawal symptoms at birth and needed detoxification treatment.  She only visited the boy once in July and had since become untraceable.

11.The defendant was sentenced to be committed to the drug addiction treatment centre in September 2007.  In the meantime, B was committed to ordinary foster care in November 2007.  In February 2008, the defendant was released from the treatment centre subject to a supervision order.  Soon thereafter, she failed to comply with the supervision order and had become untraceable again.

12.In August 2009, the Director was appointed the legal guardian of B.

13.On 11 January 2010, the Court made an order declaring B free for adoption and dispensing with the defendant’s consent for adoption on the ground of unreasonable withholding of consent.  B is now staying with his adoptive family in Hong Kong.

14.In November 2008, the defendant gave birth to C, a girl.  She was then living with an unknown man.  According to the defendant, C’s natural father (not her then cohabitee) was an ex-prisoner who was serving his term while C was born.  She took care of C initially although occasionally when she went out for fun she would entrust her to her friend, whose details are unknown.

15.In September 2009, the defendant was arrested for breach of the supervision order referred to above.  She was eventually sent to the drug treatment center again.  She was released in December 2009. She then requested the Social Welfare Department to arrange residential care for C, which was promptly made on the same day.  The defendant then disappeared yet again.

16.The Director was appointed C’s legal guardian on 25 January 2010.

17.In September 2010, C was admitted to the Babies Section of Po Leung Kuk for care.  She has since been living there.  She enjoys her new living environment.  She suffers from Compound Heterozygous Haemoglobin E/Beta Thalassaemia and required blood transfusion thrice last year.  She needs to attend medical follow-up once every three months.  She started her speech therapy in September 2011.

18.In February 2010, the defendant bore Mr X another girl, D.  D showed drug withdrawal symptoms at birth.  The defendant was discharged from hospital on 13 February for treatment of her own drug withdrawal symptoms.  Since then, neither she nor Mr X could be reached.

19.On 2 March 2010, the caseworker phoned the defendant and Mr X.  They objected to send D to a residential home.  Mr X suggested that D be sent to his mother for care.  But he was not able to provide any concrete welfare plan.  In the end, he said he would need to further discuss the matter with the defendant.

20.Since the telephone conversation, both the defendant and Mr X have become untraceable.

21.On 18 March 2010 the Director was appointed D’s legal guardian.

22.On 15 April 2010, D was discharged from hospital and admitted to emergency placement at the Residential Home of Hong Kong Society for the Protection of Children.  On 20 July 2010, she was admitted to a normal foster care home.  The foster parents had taken good care of her but had difficulty in feeding her because of sucking problem.  Treatments were of no use.  The service of the foster parents was terminated in November 2010. D was then admitted to the child care home of Mother’s Choice.  She showed improvement and is happy to stay at the care home.  She is a Beta Thalassaemia and needs to take blood test at the hospital regularly in order to monitor her condition.

GROUNDS OF APPLICATION

23.Under section 5(5)(a) of the Adoption Ordinance, Cap. 290, an adoption order shall not be made except with, inter alia, the consent of every person who is a parent of the infant.  However, the court may make an order declaring an infant free for adoption if it is satisfied that any such consent should be dispensed with : section 5A(1).  The parent’s consent may be dispensed with if the court is satisfied that :

(i) the parent has abandoned or neglected the infant (section 6(1)(a)); or

(ii) the parent cannot be found (section 6(1)(c)); or

(iii) in all the circumstances of the case, such consent ought to be dispensed with (the last sentence in section 6(1)).

24.The Director relied on all the three grounds in section 6(1) in support of this application.  In the present case, if grounds (i) and (ii) are established, ground (iii) must follow.  So I will focus my attention on (i) and (ii) first.

Ground (i) — Abandonment and neglect

25.Abandonment is a morally reprehensible desertion of the child.  When a parent abandons his child, he is disregarding his parental duty completely.  He simply gives up the child and has left it to its fate : Watson v Nikolaisen [1955] QB 286, per Lord Goddard CJ at p.295.

26.Neglect involves a very serious dereliction of parental responsibility.  When a parent neglects a child, he fails to make adequate arrangements for the care and nurturing of the child, such as the provision of adequate and proper food, nursing, clothing, medical aid, accommodation, education or other special needs of the child. 

27.Here, the evidence on both abandonment and neglect is overwhelming.  The defendant has been leading a life of depravity. She abuses drugs.  She has no regular employment.  She maintains fleeting relationships with different men, including a prisoner and a drug addict.  As a mother, she is most irresponsible.  She took drugs during pregnancy, completely ignoring the health of B and D, who were yet to be born.  Twice, she just disappeared soon after giving birth to the baby.  She does not take good care of any of the 4 children at all.  She has appallingly left C and D to their fate without any concrete welfare plan.  She has failed miserably in fulfilling her maternal duty.

28.I am satisfied that the defendant has abandoned and neglected C and D.  Consent can and should be dispensed with under section 6(1)(a).

Ground (ii) — Nowhere to be found

29.To invoke this ground, the Director must have taken all reasonably practicable steps to inform the defendant of the proposed welfare plan and to seek her properly informed views as to it : see In re F(R) (an infant) [1970] 1 QB 385, per Salmon LJ at p.389C and Re A (adoption of a Russian child) [2000] 1 FCR 673, per Charles J at p.683a-e.

30.The defendant cannot be located despite every reasonable and practical step being taken by the Social Welfare Department, including home visits, contacts by phone and by post, and enquiries with the defendant’s family members.  She is indeed nowhere to be found.  Consent can and should also be dispensed with under section 6(1)(c).

Ground (iii) — All the circumstances

31.What I have said above is sufficient for present purposes.  I would add a few words on ground (iii).

32.The defendant is plainly incapable of taking care of C and D.  No relative is available to assist.  Adoption is in the best interests of the two minors.  Indeed, it is the only option available to enable the minors to live in a healthy and caring environment (to be provided by their adoptive parents), which is crucial to their future development and upbringing. Because of her disappearance, the defendant’s consent cannot be obtained.  Her consent should be dispensed with to enable the minors to be freed for adoption forthwith.

CONCLUSION

33.For the above reasons, I allowed the application.

Ms Vickie Man, GC of Department of Justice, for the Plaintiff

The Defendant, in person, absent