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Re Infant

Judgment Cited in Precedent Map Related
Vincent
Judgment Date12 August 1977
CourtHigh Court (Hong Kong)
Judgement NumberHCAD307/1971
Subject MatterAdoption Application
HCAD000307/1971 RE INFANT

HCAD000307/1971

IN THE SUPREME COURT OF HONG KONG

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MISCELLANEOUS PROCEEDINGS NO. 53 OF 1977

IN THE MATTER of the Guardianship of Minors Ordinance, Cap. 13

and

ADOPTION CASE NO. 307 OF 1971

IN THE MATTER of an infant

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Coram: Zimmern, J.

Date of Judgment: 12th August, 1977.

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JUDGMENT

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1. On 10th December 1971 a married couple (who I shall call the applicants) applied by originating summons under the Adoption Ordinance for an order that they be authorised to adopt a male child named at birth C and renamed by them Y (who I shall call the minor).

2. In the applicants' affirmation in support of their application the following facts are verified:-

(1) They are resident in Hong Kong.
(2) They are lawfully married having married in the Registrar's office at Victoria in Hong Kong on 24th June 1964.
(3) The minor was born on 12th March 1965 his natural father being C and mother Y (who I shall call "the father" and "the mother" respectively).
(4) The mother had given her consent to the making of the adoption order.

3. On 15th December 1971 the Director of Social Welfare, the guardian ad litem entered an appearance for the minor. This matter was left in abeyance till 24th November 1976, when the Director of Social Welfare as guardian ad litem filed his report and applied for a date of hearing of the case.

4. The matter came before the Court on 22nd December 1976 and an order to set down for hearing on a date to be fixed by the clerk of the list was made. The father was represented by solicitors at the hearing. He is said to have objected to the making of the adoption order.

5. By way of originating summons under the Guardianship of Minors Ordinance dated 21st January 1977 served on the applicants as respondents the father applied for an order (1) that the custody, care and control of the minor and his sister ML (a minor) to be committed to him and (2) that the applicants deliver up the said minors into his custody.

6. The applicants were granted legal aid and an appearance was entered on 1st March 1977. Affidavits were filed and both matters came before me on 3rd June 1977. The parties' representatives agreed that both applications be heard together and I accordingly made the Consent Order. They also agreed that Mr. Tang for the applicants should start. Mr. Tang relied on the joint affirmation of the applicants affirmed on 27th July 1977 filed under the Cap. 13 proceedings and reminded me of the report of the guardian ad litem and the Departmental Clinical Psychologist which neither he nor counsel for the father had seen. Mr. Barretto for the father who did not wish to cross-examine either of the applicants on their joint affirmation then proceeded to call viva voce evidence. Before dealing with that evidence, this would be the right time and place to deal with the facts deposed to by the applicants in their joint affirmation.

7. It repeats the facts verified by their affirmation in the adoption proceedings set out above and further shows:-

(i) The applicants are without issue.
(ii) The father is the natural father of five children out of the mother, namely
(1) W a boy born on 25th June 1985
(2) Y a girl born on 26th August 1959
(3) T a boy born on 29th October 1960
(4) ML a girl born on 21st October 1962
(5) The minor born on 12th March 1965.
(iii) The mother is a sister of the female applicant.
(iv) Since 1965 the applicants have resided in various places all situate at Electric Road, Hong Kong and they are presently residing in a cubicle at 70 Electric Road, 4th floor with the minor and his sister ML.
(v) The male applicant runs a fashion tailor shop at the cockloft of No. 10 Marble Road, North Point, which business brings in an income of $1,700 per month.
(vi) In or about 1965 the father and the mother were living in the New Territories with their family.
(vii) Sometime in 1965 the father and the mother took their younger daughter ML to the applicants for them to look after.

8. In 1966 all was not well between the father and the mother out in the New Territories, in particular between the mother and the mother-in-law. They in that year quitted their jobs in the New Territories and rented premises in Electric Road firstly to avoid the mother-in-law and secondly to try and make a go of it in an urban area. To put it in a nut shell the father failed to make a living in the metropolis and was unable to support the mother and their children. He was in arrears with his rent and there was insufficient money for food. The female applicant did her best to help them.

9. The evidence is not clear on this point but it would appear that the minor was left behind in a nursery in the New Territories when the father and the mother moved to Electric Road in 1966. Any way the applicants say that sometime in 1967 the father had intended to give the minors away because of financial difficulties and that the mother asked them to adopt him. The applicants were led to believe that the father had given his consent.

10. Pursuant thereto on 2nd May 1967 the applicants and the mother went to the nursery in the New Territories and upon paying all the arrears due to the nursery they took the minor back to the applicants' home. There were Chinese ceremonies and the minor was renamed Y. He was then just over two years old and his sister ML living in the same home was then four and a half. They have since lived with the applicants.

11. The circumstances of the father and the mother went from bad to worse during the years 1968, 1969, 1970 and I am not clear eventually whether it was the father who deserted the mother or vice versa. It is clear that the other three children remained in Electric Road and the applicants did a lot to help them and the mother who was also receiving help from the Family Welfare Association. In 1971 the father took the two older boys to Taipo in the New Territories to serve as apprentices in his barber shop and in 1973 the elder girl followed suit and they have been together since.

12. In support of his application for custody, care and control under Cap. 143 the father made an affirmation on 21st January 1977. He further gave viva voce evidence and was cross-examined. The facts deposed to in his affirmation concerning his move from the New Territories to Electric Road in 1965 tally substantially to the facts deposed to by the applicants. Further the father acknowledges the help given to his family by the applicants all the years after 1965 but where they differ may be thus summarised. The father affirms that:

(i) He and his wife gave sum of $200-$300 per month to the applicants for helping their children.
(ii) In 1969 he separated from his wife because he discovered she had sold the minor's birth certificate to the female applicant.
(iii) In 1971 the female applicant asked him to sign his consent to her adoption of the minor and he refused. He frankly admitted in 1971 he was not in a position to take back the minor.
(iv) In 1973 he moved back to the New Territories and went into partnership in Taipo in a barber shop. He is now the sole proprietor and his three elder children are employed in the business which now brings in a minimum of $3,000 per month.

I think "1973" is a mistake as the evidence shows he was back in 1972 if not 1971.

13. Mr. Barretto called as witnesses an employee of the barber shop business, a relative of the father, a friend and the three elder children with the intent no doubt that I should be told what a good man the father is and that I should have a sight of the three elder children.

14. At the end of the evidence and before the addresses of counsel I told Mrs. Chan of the Social Welfare Department that I only had a confidential report on the applicants under the adoption proceedings and it would be of help if I had a confidential report on the father and his household. The father agreed to be interviewed and I have been supplied with a confidential report.

15. I now deal with the adoption proceedings:

16. The provisions of section 5 of the Adoption Ordinance do not allow me to make the adoption order applied for unless:-

(a) both the parents have given their consent; or
(b) I exercise my discretion to dispense with any consent under the provisions of section 6.

17. As to whether both the parents have given their consent, I have no doubt that...

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