Director of Social Welfare v. Dtth

HCMP 1841/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1841 OF 2008

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BETWEEN

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

Date of Hearing : 12 September 2012

Date of Judgment : 12 September 2012

Date of Reasons for Judgment : 17 September 2012

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REASONS FOR JUDGMENT

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Introduction

1.This is the application by the Director of Social Welfare, brought under section 5A of the Adoption Ordinance, Cap 290, for an order dispensing with the Mother’s consent and declaring that the Infant be freed for adoption on the ground that the Mother is unreasonably withholding her consent and that in all the circumstances, her consent ought to be dispensed with.

2.The application was first heard by Saw J on 2 February 2009.  He adjourned the case with a view to allowing the Director to observe the Mother’s performance after her release from prison on 12 February 2009 and to explore the possibility of resolving the matter without the court’s intervention.  Unfortunately, as will be seen in a moment, the development since the last hearing has left the Director with no choice but to revive this application before the court.

3.On 12 September 2012, the matter came before me.  The Mother was absent despite notice of the hearing.  After hearing the Director, I allowed the application.  These are the reasons for my judgment. Counsel for the Director has already indicated that she has no objection to the publication of this Reasons for Judgment.

Background

4.The Mother is a Vietnamese.  She is now 38.  She fled to Hong Kong in or about 1989.  She stayed in the Pillar Refugee Camp until it was closed in 2000.  She is a habitual drug addict and repeated offender.  Since 1995, she had been committed drug-related offences and theft on 11 occasions.  The terms of imprisonment ranged from 2 to 21 months.

5.The Mother has 3 illegitimate children, each with a different natural father.  Her eldest daughter is now 21 and lives with her.  The second daughter is 11 and, having been freed by the court for adoption after a contested hearing in February 2009, was adopted by a family in Australia in June 2009.  The third boy is the Infant.  He was born in July 2007 out of the Mother’s casual sexual relationship with her ex‑boyfriend, whose identify is unknown.  The Mother first met him in May 2007 at her workplace.  They soon broke up and the Mother had not contacted him ever since.  His present whereabouts is unknown.

6.The Infant exhibited withdrawal symptoms at birth and has since been placed under foster care.  He is now studying at a local kindergarten.  The Director was appointed the legal guardian of the Infant on 22 April 2008 and has remained so since then.

7.After the hearing before Saw J in February 2009, the Mother paid her last visit to the Infant in December 2009.  Since then, she had become untraceable.  It was only in October 2011 that the case worker found out that she had been imprisoned because of theft since September 2011.  She was released in March 2012.  In May 2012, the case worker paid the Mother a home visit.  She was busy with her own life, without even bothering to ask about the Infant’s recent condition.

8.It is inevitable that the Director had to come to court again.

Discussion

9.Under section 5(5)(a) of the Adoption Ordinance, an adoption order shall not be made except with the consent of every person who is a parent or guardian of the infant.  However, pursuant to section 6(1), the court may dispense with the consent if it is satisfied that :

“(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.”

10.Whether a parent has unreasonably withheld his consent is a question of fact to be determined objectively with regard to the totality of all the circumstances of the case.  The fundamental question is what a reasonable parent, placed in the position of the parent in question, would do.

11.In cases where the welfare of the child is a relevant factor, the degree of unreasonableness to be proved must be marked in the sense that the parent whose consent is withheld has ignored or disregarded some appreciable ill or risk likely to be avoided or some substantial benefit likely to accrue if the child is adopted : In re W (an infant) [1971] AC 683, per Lord MacDermott at p.709A-C.  In Director of Social Welfare v DT [2008] 3 HKLRD 192, which concerns the contested proceedings of the Mother’s second daughter as alluded to above, Hartmann J (as he then was) articulated the test by asking at para 29 :

“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?”

12.Applying the test to the present case, I think the evidence show, quite overwhelmingly, that the Mother has unreasonably withheld her consent.

13.First, the Mother has failed to put her life in order.  She has had no stable residence, regular employment or steady relationships with her male partners.  She has failed to keep her promises to resume her parental duties or cooperate with the caseworkers.  Since the last hearing in February 2009, she has been involved in other criminal offence, sentenced and imprisoned in September 2011 and was only discharged in March 2012.  Her persistence in abstaining from drugs and to sustain a relatively healthy lifestyle remains a concern to the clinical psychologist. 

14.Second, she lacks childcare ability and has failed to care for or show concern towards the Infant.  The Infant has been separated from her and placed in foster care since birth.  She has failed to keep in touch with the caseworkers.  She has rarely enquired about the Infant’s conditions.  The history of her two elder daughters as recounted by Hartmann J in Director of Social Welfare v DT, supra, is a powerful indicator that she is unsuitable to take care of the Infant.

15.Third, the Mother has failed to come up with any concrete childcare plan in respect of the Infant : Re V (Adoption : Parental Agreement) [1985] FLR 45.

16.In my view, the Mother is demonstrably unable to care for the Infant.  But she simply refuses to give consent to the Infant’s adaption.  In so doing, she is prejudicing the Infant’s manifest best interests and thereby acting unreasonably.  Any reasonable parent in her position would not withhold her consent to the Infant’s adoption.  With the Infant’s tender age and good health, that the chance for the Infant to be adopted is optimistic.  Yet, with the Mother’s refusal to give consent, the Infant is deprived of the opportunity to live in a stable family environment to be provided by his adoptive parents.  The advantages of adoption for the Infant are sufficiently strong to justify overriding the views and interests of the Mother.

Conclusion

17.For the above reasons, I made the order as I did.

Ms Vickie Man, instructed by the Department of Justice, for the applicant

The respondent, in person, absent