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Director Of Social Welfare v Lnt And Another

Judgment Cited authorities 10 Cited in Precedent Map Related
Vincent
Judgment Date10 March 2021
Neutral Citation[2021] HKCFI 587
Judgement NumberHCAD9/2020
Citation[2021] 2 HKLRD 579
Year2021
Subject MatterAdoption Application
CourtCourt of First Instance (Hong Kong)
HCAD9/2020 DIRECTOR OF SOCIAL WELFARE v. LNT AND ANOTHER

HCAD 9/2020

[2021] HKCFI 587

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADOPTION APPLICATION NO 9 OF 2020

________________________

IN THE MATTER OF LSL, an infant

and

IN THE MATTER OF Section 5A of the Adoption Ordinance, Cap 290

________________________

BETWEEN

DIRECTOR OF SOCIAL WELFARE Plaintiff
and
LNT 1st Defendant
TCY 2nd Defendant

________________________

Before: Hon B Chu J in Chambers (Not Open to Public) (By Paper Disposal)

Date of Plaintiff’s Skeleton Submissions: 29 January 2021

Date of Plaintiff’s Supplemental Submissions: 25 February 2021

Date of Decision: 10 March 2021

________________________

D E C I S I O N

________________________


Introduction

1. This is an application made by the Director of Social Welfare (“Director”) under section 5A of the Adoption Ordinance, Cap 290 (“Ordinance”) for an order declaring the female infant LSL (“Child”) free for adoption and dispensing with any consent required by section 5(5)(a) of the Ordinance.

2. The 1st defendant is the natural mother of the Child (“Mother”). She was born in Mainland China in December 1978, and is now 42 years old. She married the 2nd defendant, a Hong Kong resident, in Mainland in 1999 and they have two sons born in 2000 and 2009. Mother was granted right of abode in Hong Kong in 2005. As seen later in this decision, Mother was diagnosed with schizophrenia in 2005, and she returned to her maternal home in the Mainland in 2012.

3. In May 2017, Mother was found to be pregnant and had irrelevant speech by her family in the Mainland. She was brought back to Hong Kong. In June 2017, she was compulsorily admitted to the psychiatric ward of Tai Po Hospital and had remained there since then.

4. Mother gave birth to the Child in August 2017 at the Prince of Wales Hospital but she was unable to report any detail about the circumstances leading to her pregnancy, and the identity of the birth father of the Child remains unknown.

5. On 15 September 2017, a Care and Protection Order for the Child was made by the Juvernile Court appointing the Director as her legal guardian, and since 4 April 2018, the Child has been entrusted to the care of a foster home in Tuen Mun.

6. As the 2nd defendant was legally married to Mother at the time of the birth of the Child, he is presumed to be the Child’s legal father.

7. However, according to the 2nd defendant, he had no contact with the Mother over the past few years. He denied any blood relationship with the Child and strongly refused to be her legal guardian.

8. On 18 April 2018, the 2nd defendant had signed a Form 4A, relinquishing the parental right and giving his consent to free the Child for open adoption.

9. The present application is made by the Director under section 5A of the Ordinance on the grounds that the Mother is incapable of giving her consent, that the 2nd defendant has relinquished his rights, if any, over the Child and that in all circumstances of this case, it is in the best interest for the Child to be freed for adoption.

10. Senior Government Counsel, Ms Carmen Siu, represented the Director in this application.

The relevant provisions in the Ordinance

11. Section 5A of the Ordinance provides for freeing an infant for adoption as follows:

“(1) Subject to subsection (2), where on an application made by the Director, the Court is satisfied that any consent required by section 5(5)(a) should be dispensed with, it may make an order declaring an infant free for adoption.

(2) An application in respect of an infant may be made by the Director under subsection (1) only if under any Ordinance the Director is the legal guardian of the infant or the infant is in the care of the Director.

(3) Before making an order under this section, the Court shall notify every person whose consent is to be dispensed with and who can be found (other than a person who is incapable of giving his consent) of the application under subsection (1) and give every such person an opportunity of being heard.

(4) On the making of an order under this section—

(a) all rights, duties, obligations and liabilities of the parents or guardians of the infant, referred to in section 13(1), shall vest in the Director as if the order were an adoption order and the Director were the adopter;

(b) the Director or an accredited body may place, subject to the provisions of this Ordinance, the infant for adoption; and

(c) section 5(5)(a) shall not apply.”

12. Section 5 (5) has set out that:

“Subject to sections 5A and 6, an adoption order shall not be made—

(a) in any case, but subject to section 20C(4), except with the consent of every person who is a parent or guardian of the infant, or who is liable by virtue of any order or agreement to contribute to the maintenance of the infant; or

(b) on the application of one of 2 spouses, except with the consent of the other spouse”

13. Further, section 6 provides that :

“6. Dispensing with consent to adoption

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

(2) The Court may dispense with the consent of the spouse of 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 to be permanent, or if it is of opinion that such consent ought, in all the circumstances of the case, to be dispensed with.

(3) The consent required by section 5(5)(a) may be given without knowing the identity of the applicant for the order; and where consent so given by any person is subsequently withdrawn on the ground only that he does not know the identity of the applicant, his consent shall be deemed for the purposes of this section to be unreasonably withheld.

(4) While an application for an adoption order in respect of an infant is pending in any Court, any parent or guardian of the infant who has signified his consent to the making of an adoption order in pursuance of the application shall not be entitled, except with the leave of the Court, to remove the infant from the care and possession of the applicant; and in considering whether to grant or refuse such leave the Court shall have regard to the best interests of the infant.”

Queries raised by this Court

14. Upon considering the 1st Skeleton Submissions from Ms Siu on behalf of the Director, as there were no submissions made in relation to Order 80 rule 6 of the Rules of High Court (“RHC”), this Court raised the following queries on 3 February 2021 :

(1) As Mother is a party in these proceedings and has been named as a defendant, it appears mandatory under Order 80 rule 6(1) of RHC for an application to be made for the appointment by the Court of a guardian ad litem for her due to her said mental incapacity, and the Director is asked to explore the possibility for the Official Solicitor to be appointed the guardian ad litem for Mother or to be appointed as the Committee for Mother under Part II of the Mental Health Ordinance, Cap 136 (“MHO”);

(2) As there was only one authority produced on behalf of the Director in relation to the meaning of “incapable of giving consent” under section 6(1)(c) of the Ordinance, the Director was requested to provide additional authorities to assist the Court.

15. This Court then directed the application be dealt with on papers.

Mother’s mental incapacity

16. The Director has somehow managed to obtain medical reports on Mother’s condition notwithstanding that Mother appears to have been incapable of giving her consent.

17. Anyway, according to a psychiatric report dated 10 January 2019 from Dr Wong Ching Yi (“CY Wong”), then the Resident and now the Associate Consultant of the Department of Psychiatry, Tai Po Hospital, and who is on the List of Approved Doctors for the purposes of section 2(2) of the MHO, Mother was first known to the mental health service there in 2005 and presented with various psychotic symptoms including auditory hallucinations, persecutory delusions, disturbing and aggressive behaviors eg threatened to kill her family, damaged neighbour’s door with a chopper etc. She had 3 past psychiatric admissions between the year of 2005 to 2010, but she defaulted psychiatric treatment and follow up since March 2011 and went away to the Mainland in 2012.

18. According to Dr CY Wong, Mother’s maiden family reported her to have fluctuating mental state with persistent psychotic symptoms since then, and that she had repeated disorganized behaviours in public and frequently absconded from home and did not return home sometimes for weeks to month. Her elderly parents were not able to supervise her condition, and that Mother had no contact with her husband and 2 sons in Hong Kong during that time.

19. Dr CY Wong reported that around May 2017, Mother’s parents found out that she had become pregnant, and Mother could not provide any information concerning her pregnancy due to her prominent psychotic symptoms. Finally her family successfully brought her to Hong Kong for psychiatric treatment in June...

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