RE A

bjbj HCAD00032/1973 IN THE SUPREME COURT OF HONG KONG ADOPTION CASE NO. 32 OF 1973 ----------------- In the matter of "A" an infant In the matter of the Adoption Ordinance, Cap. 290. ----------------- Coram: Leonard J. in Chambers Date of Judgment: 2nd March, 1973. ----------------- JUDGMENT ----------------- This is an application of rarity in that it is an application for adoption which, while uncontested, comes before the court without the support of a recommendation from the guardian ad litem, the Director of Social Welfare. In the words of Harman J. this : " is one of the most anxious jurisdiction which falls on the Court of Chancery, for adoption, as has often been pointed, out, is a permanent change in the status of the person adopted ... It is therefore a matter which, at the best and even when unopposed, must be looked at with great circumspection ...."(1) In the present case the applicant is a 45 year old bachelor, a university graduate and the director of a local limited company living in affluent circumstances. The father of "A" the infant is a "captain" in a bar of the more respectable type in Central District where "A" also worked before he was befriended by the applicant. "A's" mother is dead. "A" will be 21 in one week's time and is at present working as a trainee in the applicant's company. He has been living under the applicant's roof since some time in 1969. The failure of the applicant to bring this application earlier has been explained as due to faulty legal advice or a misunderstanding by the applicant of the advice given. Notice of Intention to apply for an adoption order was not given to the Director until the 19th January 1973. Therefore before any adoption order could be made it would be necessary for me to abridge the time within which the applicant is obliged by Section 5(7)(b) of the Ordinance to give notice to the Director. The primary question which I must answer is whether I should do so as unless I do no successful application for adoption can ever be made since "A" will be 21 in 7 day's time. [It is the age of the infant at the date on which the order is made rather than his age at the date of application that is of importance (2).] Notwithstanding the requirement as to "care and possession" in Section 5(7) of the Ordinance, the courts have on many occasions made adoption orders although the person to be adopted is approaching majority; the term "infant" in the Ordinance being defined as meaning "a person under the age of 21 years" but as not including one who is or has been married. However, I find it impossible to see what advantage may accrue to the infant in this case by an order for adoption that could not be made available to him without an actual change of status. He is already a British subject having been born in Hong Kong. A change of name can as readily be effected by deed poll as by adoption. I am told that both the infant and the applicant desire "since their relationship appears to be one of mutual concern and respect that it be legalized". I must confess to doubt as to whether the fulfilment of this desire would itself confer on the infant sufficient benefit to justify intervention by the court to change his status. In Re R. (Adoption) (3) having distinguished the case of Re A (an infant) (4) Buckley J. granted an adoption order in respect of an infant aged 20. In Re R the applicant was of British nationality domiciled and resident in England with children of his own while the infant was a youth who had escaped from a totalitarian regime who desired to obtain British nationality. To that extent the adoption was an "accommodation" one but Buckley J. distinguished it from Re A (an infant) (above cited) in words which are not wholly irrelevant to a consideration of the present case : " The name is not true, in my judgment, of the present case. A is now fully in loco parentis to R, who has no one else standing in that position. The benefit which adoption, if permitted, would confer on R would not be confined to the acquisition of British nationality; it will give R the social and psychological benefits of truly belonging to a family, as a member of it, with the attendant legal status and rights. I have, of course, given very careful consideration to the public policy aspect of the matter mentioned by Cross, J., in Re A (an infant) (4). This aspect, I think, makes it incumbent on the court to be particularly circumspect in exercising the jurisdiction under the Act of 1958 when the infant proposed to be adopted is of foreign nationality and, more particularly when he or she is no longer a young child but is approaching his or her majority." In the absence of any collateral advantage such as a change of nationality and because the applicant, being a bachelor, has no family of which the infant can become a member so as to acquire the social and psychological benefits of which Buckley J. speaks I am extremely doubtful whether I should have granted an order had the Notice of Intention been lodged with Director not less than six months before today's date. I say this because it seems to me that, try as they may, neither the infant nor the applicant could ever regard themselves as truly in the relationship of father and child. The infant's father is still living and is well-known to the infant. Again any "family" relationship that might exist between them by reason of the adoption could be nullified at the wish of "A" at any time, after 7 days. Be that as it may, it seems to me that the preliminary application that is that to abridge the time within which the Notice of Intention must be lodged with the Director - must necessarily fail. The reason for requiring the Notice of Intention to be lodged six months before the making of the order is clearly to enable the Director to make full enquiry into the background of all parties involved. Miss Ng for the Director has found it impossible to do so in this case. She tells me she is not "in a position to make any recommendation because time has been too short to carry out a detail home-study (sic). However she would like to support the applicant's request for an abridgement" and leave the final decision of granting an adoption order to the court. With respect I do not think her support of the request for abridgement to be logical. The "shorter period" which the court may allow under Section 5(7)(b) must, in my opinion, be a period adequate to enable full enquiry to be made; if it is not, there must be made to appear to the court very compelling advantages which would accrue to the infant by the period being shortened and the adoption order being made. These factors are absent in this case and I do not consider that I would be acting with that "great circumspection" which Harman J. enjoins if I abridged the time. Accordingly I must refuse this application. (P.F.X. Leonard) Puisne Judge Representation: Applicant in person. Miss Ng for guardian ad litem. (1) Re F (an infant) (2) M a petitioner 1953 S.C. 227 (3) 1966 3 All E.R. 613 (4) 1963 1 All E.R. 531 (4) 1963 1 All E.R. 531 PAGE - PAGE - &`#$ HCA000032/1973 RE: Normal Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR HCA000032/1973 RE: Title Microsoft Word Document MSWordDoc Word.Document.8 HCA000032/1973 RE: Normal Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR HCA000032/1973 RE: Title