Director of Social Welfare v YKK

Bebe Chu J in Chambers
Family Law
18 March, 15 June, 20 July 2021

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FACTS

This was an application by the Director of Social Welfare under the Adoption Ordinance (Cap.290) for: (i) a declaration under s.5A that a child was free for adoption; and (ii) dispensation under s.6(1)(a) with the putative father’s consent otherwise required by s.5(5)(a).

Held, dismissing the Director’s application without prejudice to future applications under changed circumstances, that:

  1. A s.5A application should be approached by way of a two-stage process, asking: (i) whether adoption was in the child’s best interests; and (ii) if so, whether any ground for dispensation with consent to adoption was proved on the balance of probabilities (Re D (A Minor) (Adoption: Parental Agreement) [1991] 1 FCR 615, Re G; Re S (Care Order: Freeing without consent: Contact) [2001] Lexis Citation 3643, Re S and C (Care Order: Freeing for Adoption) [2005] NI Fam 15 applied).
  2. There was simply no sufficient evidence before the Court for it to be satisfied that an adoption, particularly an adoption under the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption of 29 May 1993, was in the child’s best interests (Re B-S (Children) (Adoption: Leave to Oppose) [2013] EWCA Civ 1146, Re B (A Child) (Care Proceedings: Appeal) [2013] UKSC 33, Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112 applied).
  3. As stage one had not been satisfied, it was premature to consider stage two.

Editorial Note:  (1) The Judge said in para.62 that it would seem that when making a s.5A application in the Court of First Instance instead of the District Court, the Director has in mind a Convention Adoption and intends once a suitable adopter is identified to pass care and control of the child to a person not residing in Hong Kong. (2) She continued by saying as follows in paras.63–64. The Director’s evidence in a s.5A application should set out clearly the Director’s adoption plans, whether it is for a local adoption or for a Convention Adoption. Section 5A applications made by the Director in the Court of First Instance have sometimes been issued under “HCAD” and sometimes under “HCMP”. Such applications relate to a child’s proposed adoption. They should for consistency sake always be issued under “HCAD”. (3) While the finding that the evidence before the court was insufficient for it to be satisfied that an adoption is in the child’s best interests is necessarily fact-specific and fact-sensitive, the Judge’s reasons as to why the evidence was insufficient provides guidance as to what the Director’s evidence in these applications should address and how. (4) Guidance is also to be had from the observations which the Judge went on to make after saying that it was premature to consider stage two.

APPLICATION

This was an application by the Director of Social Welfare under the Adoption Ordinance (Cap.290) for: (i) a declaration under s.5A that a child was free for adoption; and (ii) dispensation under s.6(1)(a) with the putative father’s consent otherwise required by s.5(5)(a).

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