M, a minor born in 2005 and now 16 years old, had been placed under the care of L (the elder brother of M’s biological mother) and D1, a same-sex couple, since M was about three months old. In 2006, by a Deed of Appointment of Guardians (the Deed), M’s biological parents (D2 and D3) formally placed M in the care and control of L and D1, who shared all parental rights and obligations in relation to M. In 2019, it was arranged for M to attend a boarding school in the UK.
P (as next friend of M) sought inter alia the following orders: (i) M be made a ward of the Court during his minority or until further order; and (ii) D1 be given leave to make arrangements for the adoption by him of M, pursuant to s.23A of the Adoption Ordinance (Cap.290) (the AO).
Section 23A(1) of the AO provides that “… no person other than— (a) the Director; (b) an accredited body … ; or (c) a person acting in pursuance of an order of the Court, shall make arrangements for the adoption of an infant, or place an infant for adoption”. Section 23A(5) relevantly provides that a person shall be deemed to make arrangements for the adoption of an infant if he enters into any agreement, or makes any arrangement, for the adoption of the infant by any other person where the adoption is effected, or is intended to be effected, in Hong Kong or in a place outside the People’s Republic of China; or he initiates or takes part in negotiations the purpose or effect of which is the conclusion of any such agreement, or the making of any such arrangement.
The suitability assessment report by the Director of Social Welfare (the Director) and social welfare report were positive and M had clearly expressed his agreement to be adopted by D1. D2 and D3 did not contest the proceedings.
Held, making the orders as sought, that:
- It was not necessary for parties to invoke the Court’s wardship jurisdiction solely for the purpose of making the s.23A application when there appeared to be no objection from anyone (including the child concerned) to the proposed arrangement and no other reason why the child concerned required the protection of a wardship judge.
- In the circumstances, there was no sufficient evidence that the parties to the Deed had contravened s.23A(1) of the AO or had received M in contravention of s.23A(1) or that they have been guilty of an offence under s.23A(4).
- From the policy perspective, the arrangements in the present case may not be conzsistent with the objective of s.23A of the AO, namely to ensure that vital placement decisions were handled by qualified/experienced people who were not acting for personal profit. In general, it would be more proper to conduct suitability assessment on the would-be applicant(s) for an adoption order before proceeding with any childcare arrangements as in the present case. However, it was accepted by the Director that, even if there was a breach of s.23A(1) of the AO, the breach did not preclude the making of an adoption order but it was a matter to be taken into account in conducting a balancing exercise (In Re Adoption Application (Non-Patrial: Breach of Procedures)  Fam 125 applied).
- The Court was satisfied that M’s residence in Hong Kong had not been broken by his attending boarding school in the UK, and he remained resident in Hong Kong, a requirement for an adoption order to be made under s.5(6) of the AO (Re P (GE) (An Infant)  Ch 568, N v O  1 HKLRD 68 applied).
- Having considered the relevant factors and reports, the Court was satisfied that it was in M’s best interests for the Court to grant leave to D1 to make arrangements for him to adopt M.
This was an application for an order that the first defendant be given leave to make arrangements for the adoption by him of a minor, pursuant to s.23A of the Adoption Ordinance (Cap.290).
1 Section 3(1) of Sch.3 of the Implementation Rules provides: “[w]here the Secretary for Security has reasonable grounds to suspect that any property held by any person is offence related property, the Secretary may, by notice in writing specifying the property, direct that a person must not, directly or indirectly, deal with the property except under the authority of a licence granted by the Secretary.”