Podcast S4E4 | Family: The Adoption Process in Hong Kong

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TRANSCRIPT

Tune in for Series 4 of The HIP Talks podcast: a series of discussions on legal issues hosted by Hugill & Ip Solicitors – an independent boutique law firm in Hong Kong providing bespoke legal services and exceptional client service to individuals, families, entrepreneurs and businesses, locally and internationally. Clients have diverse issues: some require immediate attention and speedy outcomes; others require the building of a long-term partnership between solicitor and client. In all situations and for all clients, Hugill & Ip provides clear practical advice to help achieve the best results. The firm has achieved outstanding recognitions in the most recent editions of the major legal directories, as well as remarkable results in the areas of Dispute Resolution, Corporate & Commercial, Trusts & Estates, Family, Employment & Business Immigration and Data Privacy.

Frances Tsang  00:52
Hi, this is Frances Tsang, I’m an Associate at Hugill & Ip. Today I’m with Raphael Wong, a Senior Associate at Hugill & Ip, and we are from the Family Team.

Frances Tsang  01:03
Today, we’re going to do a podcast about adoption. Talking about adoption, there are two classes of cases that we usually see. So the first one is adoption, which is done through the Social Welfare Department. This relates mostly to abandoned children, or children to whom the applicant is not a relative or a stepparent. And there is the other class of cases called the private adoption, which mostly relates to stepparents and relatives adopting a relative child. This is a podcast about the latter kind, private adoption, because this is where lawyers usually get involved. In some cases, private adoption might also involve adopting a child from overseas. And there’s a class called convention adoption, which mainly relates to adoption from overseas. So, Raphael, would you mind talking about the statistics in relation to adoption published by the Social Welfare Department?

Raphael Wong  02:05
Thank you, Francis. I was talking about the data yesterday. And as of the end of June 2022, according to the Social Welfare Department, there are about 174 adoptions by local homes, 26 cases of adoption by overseas families, and only about 30 cases of privately arranged adoption by relatives. And what’s more interesting is that, according to the Social Welfare Department, there’re actually no normal and healthy children available for adoption. Now, this is not to be read as anything wrong – it’s simply because if the children are normal and healthy, chances are you do not need an adoption in the very first place. And also, the problem with this figure is that it fails to account for applications of private adoption, where the infants are not even in the pool in the very first place. Perhaps Frances, you can talk about the criteria for the adoption.

Frances Tsang  03:08
Sure. In the context of a private adoption, we will need to consider a number of criteria which the applicant has to meet. So, the guiding principle in all of these cases is the best interest of the child. And this principle is translated into criteria listed in the adoption ordinance, and subsidiary legislations. So firstly, we’ll need to look at the age of the applicant. If it is a sole applicant, then he or she needs to be at least 25 years old, but it was a joint application by spouses then one of them has to be at least 25 and the other at least 21. Apart from that, of course, the applicant will also need to have good mental and physical health conditions. And we also need to consider whether they have stable employment, whether they have any criminal record. And we will also need to consider the circumstances of the child in question as in whether the child has any siblings. So, if there is, let’s say a brother or sister of the child, then it is the usual case that it will preferred for both children to be adopted together. We will also need to consider if there are any other children of the sole applicant or the joint applicant as spouses because obviously, when an adopted child enters into the family, they are going to be living together with all those other children. And of course, the adopted children must be under the age of 18 and not married. And the children have also to be in the actual custody of the applicant for at least 6 consecutive months before an adoption order can be granted. However, we do see a number of issues practically when these criteria are put in place. So, Raphael, would you mind sharing your views on what practical issues we might face in terms of private adoption?

Raphael Wong  05:16
Now, one of the criteria obviously, perhaps the most important criteria, I would say, is the consent of the birth parents. Now, according to the Adoption Ordinance, parents have to give consent, but not only parents, but also whoever is liable to pay. And also, the guardian of the infant(s) would have to give consent, depending on the circumstances of the case. The law also specified, interestingly, that if the child is born out of wedlock, that means the child was born when the parents are not married, the father would not be considered as a parent unless he applies under Section 3.1 of the GMO. But however, in practice, the courts will always ask for father who are born out of wedlock for his consent. There is also a trend that the court would ask for DNA test for infants that are born out of wedlock. So, it’s very important that we secure the birth parents’ consent before we even start the application, otherwise, we might need to dispense with that particular parent’s consent and that would lengthen or delay the application substantially. We also have to draw a distinction between general consent and specific consent, because for general consent, once it is signed, the person signing the general consent would give up or his or her rights at the time of signing of the documents. Whereas if you are signing a specific consent, then your rights would only be given up once or at a time the adoption order is made. There is an exception to the rule that for example, if this is a stepparent’s adoption, meaning that for example, the stepfather is adopting the infant of his current wife, then even though the wife would sign a specific consent for the stepfather to adopt the infant, that mother who signed the consent would not give up her parent or rights under the law. So that is an exception to the general rule where if you sign a specific consent, you give up your rights. And for signing of the consent form, we often come across a situation where the birth parents are not even in Hong Kong. So, when they are signing the form, they need to be careful that they are signing the form properly, and be attested in accordance with the local law wherever they are. But usually in practice, so long as they sign before a notary it should be safe. And consent form can also be signed before the application is made, in fact, is very often that these consent forms are signed before the application is made. So that in practice, we will know that consent can be secured before even we make the application.

Raphael Wong  08:27
If we are not able to secure consent, then we will have to seek to dispense with that particular parent’s consent. And in law, we can only dispense with a party’s consent if he or she abandoned, neglect, or ill-treated the infant, if he or she fails to make payments, persistently neglected or refuse to contribute, incapable of giving consent, or consent unreasonably withheld. And there’s also a catch-all principle or catch-all criteria where the courts can also dispense with the consent in all circumstances of the case. Now, there is also another restriction on the adoption, if it is a private and local adoption, both the infants and the applicants must reside in Hong Kong – that this rule obviously does not apply to convention adoption where clearly the infant(s) and the applicant are residing at different places.

Raphael Wong  09:30
There is also a very interesting restriction under the law where it says a male applicant cannot adopt a female infant. What do you think about it, Frances?

Frances Tsang  09:46
Um, well, honestly, I think it is a rather ancient rule, but one that is that an applicant would not usually expect, but it’s really easy to overlook. And that’s why when you are in the context of a private adoption, you will need legal representation and lawyers to tell you that, in fact, this rule exists. But I do think there has to be a time when this rule has to go away in terms of adoption because there is no valid grounds for this rule to exist anymore and it’s a rather ancient rule to be there in the first place. Raphael, have you encountered any cases where an applicant runs into a problem or an issue, because of the application of this rule?

Raphael Wong  10:38
We did, we did actually. We have an ongoing case right now, precisely with the same issue. And we also did another case, which I managed to convince the judge that he should disregard this provision. Now, the purpose of this restriction, if I may say so, is to guard against potential risk and aims at protecting a young female infant from possible sexual abuse by a sole male applicant. There were some changes to the law. In fact, the law was amended because of discussion regarding this potentially discrimination provision. And in the end, they have amended the wordings and they added a exception to the rule, which says “You may circumvent this, if there are special circumstances of the case”. It’s unclear by Hong Kong cases, what amounts to special circumstances, but what we did in the previous case was that it was a stepfather trying to adopt a female, but that female was about to turn 18. So, and she indicated clear and strong intention for the adoption to go through. And then obviously, her and her mother are residing with the stepfather. So, it’s not like, although it’s a sole male applicant, but in practice the three of them are living together. Another thing is that the consent form signed by the parents, specific consent form, where they specifically allowed these stepparents, this stepfather to adopt the child. So, in the end, the judge was prepared to accept my submission and simply allowed the adoption. We do have a similar case right now, where we are also trying to help a stepfather, well not a stepfather, actually, in this case is a grandfather is the grandfather trying to adopt the granddaughter. It is it’s unclear what the judge will say about this case, but I’m prepared to run similar arguments and I hope that the judge is prepared to disregard this.

Raphael Wong  13:01
What I agree with you is it’s kind of an ancient law as this restriction shouldn’t be gender specific, because sexual abuse can happen either way, and following up from what you’ve said that there should be a 6 month continuous care, now, I just want to expand a little bit on that, because the rule clearly stated that if the child or the infant is studying abroad, or staying in boarding school or in the hospital, it does not break the counting of the duration. So, for example, within that 6 months of care time, the child is unfortunately staying in the hospital, that would not necessarily break the duration of the 6 months.

Raphael Wong  13:52
There is another quite unfortunate restriction, in my opinion, is that not everyone can arrange for adoption or place an infant for adoption. They’re only placing infants for adoption unless you are a director, an accredited body or if you’re acting under a court order. Now, this rule does not apply to certain applicants, namely, if you are a parent of the infant or if you are a relative of the infant, or if you are simply a stepparent. It sounds quite reasonable, but the problem with that is the definition of relative is fairly restricted under the Adoption Ordinance, according to the Adoption Ordinance, relatives only includes if you are related to an infant as grandparents, brother, sister, uncle or aunt, whether of the full blood or the half blood or by affinity. Therefore, if you are, say, for example, great grandparents, logically you have thoughts she or he will be one of the relatives but unfortunately according to the Adoption Ordinance, you are not a relative and we are exactly facing this issue right now. We have an applicant who is the sister of the infant’s grandparents, she tried to apply for adoption, but just to find out that she is not a relative under the law. She will have to apply for leave and go through extra steps. And it’s quite important to bear this in mind because if anyone breaches this section is considered as a criminal offense and you are subject to imprisonment of 6 months. And if you study the rule carefully, it says that you’re deemed to make arrangements or enter into one if you are making agreement or arrangement for adoption of infant by any other person. So, it seems to suggest that if you are actually the person making the adoption application, it would not be treated as arranging for adoption. But in practice, there’s no point in taking the risk. So, when in doubt, we always seek for leave from the court.

Frances Tsang  16:27
Okay, talking about persons who are able to apply for an adoption order in Hong Kong, we see a lot of cases in recent years as to whether same-sex couples can adopt children in Hong Kong. And in some cases, these couples are married overseas, however, their marriage is not recognized under Hong Kong law, because Hong Kong has not yet legalized same-sex marriage. So, in these circumstances, it is still possible for the couple to adopt, however, there cannot be a joint application under the Hong Kong law as spouses because the marriage is not recognized under Hong Kong law. In these cases, we would advise for there to be an application by a sole applicant and the criteria which applies to a sole applicant and, you know, other families in this case will also apply to that person who, in fact, has in a same-sex relationship, but then is applying solely because of the fact that Hong Kong is unable to recognize the marriage. So, you know, the all the same criteria applies to age and as to background. So, this might be an interesting area, which people would like to look into in terms of adopting.

Frances Tsang  17:51
So, looking into the procedure for adoption, so Raphael, you talked a lot about getting consent. So I noticed that for adoption, generally speaking in Hong Kong, every adoption has to commence by way of an application to court and for adoption, which are not private adoptions, and those who are basically done through the Social Welfare Department, we see that you know, all children who are suitable for adoption are in fact placed into the adoptees poll, and the adoption agency and the Social Welfare Department, they will work together to try to find the best compatible matches of parent and children. And while of course, these applications by the Social Welfare Department, they are still guided by the principle of the best interests of the children. And not that it’s done on a first-come-first-serve basis as in, you know, a parent applies first, and he or she gets a higher chance of adopting a child. So, these procedures are in the context of adoption, which are done through the Social Welfare Department, what happens when lawyers are actually involved, let’s say not in a private adoption procedure?

Raphael Wong  19:13
Generally, when a client came to us, of course, we have to make sure that all the criteria that I mentioned, are fulfilled. And the second thing is whether he or she, the applicant, can successfully obtain the consents from whoever consents needs to be obtained. And once consent is secured, or we know that consent can be secured, then we can issue what we call a Form One to the Director of Social Welfare. The Form One basically is a notice to the Director that the applicant intends to adopt the infant. And within 4 months from lodging the Form One, we have to take out the application. So we have a bit of time from lodging the Form One and preparing for the application. The client can also use the time to secure to consent because as I said, sometimes the consent has to be obtained overseas and takes time for them to get it signed, notarized and mailed the original back to us. In other points to note is that the adoption application always starts at the Family Court. The rule says it has to start at the family courts, at District Court and judgment also said we should always start at the District Court. But it doesn’t mean that it will always end up at the District Court or the Family Court.

Raphael Wong  20:46
One of the cases where consent cannot be obtained, and where you have to seek dispense with consent, then we can always apply to transfer the case to the High Court. This is a little bit (of a) technical point. The law actually says, if you cannot secure the consent, you shall transfer the case to the High Court, it seems to suggest that you have no option, but we did a case where we basically obtained the dispense with consents at the at the Family Court. So, we do not even have to deal with the transfer issue because the consent is already dispensed with. But of course, if the case is transferred to the High Court, then it adds to the cost and time and everything. There is also a technical point that we need to pay attention to is once we take out the application, the Director will become the guardian ad litem of the infants. There is no court fees payable for adoption cases, but there is a fee payable to the Social Welfare Department as the guardian ad litem. And also, although the procedure is private and confidential, the Social Welfare Department would prepare a very lengthy and detailed report with a lot of information to be supplied by the clients, the applicant. And the report is also generally a private document. Now I stopped at getting the consent, I digressed a little bit. So, after getting the consent and prepare the Form One, and you will prepare the actual application for adoption, what we call the Form Two and Form Three, so basically Form 1-2-3, so it’s easy to remember. And after you send everything to the courts, get the consent done and everything, the Social Welfare Department will then assign a social worker to your case, where then the social worker will contact us or the client directly and get all the information as I said. They have to complete like a book of questionnaire, whatever called, because it’s so detailed and so long, that you have to submit all the information, practically from your date of birth, basically, like your siblings, your work history, your financial history, medical history and everything, your criminal record, everything. The purpose obviously is to make sure that the applicant is a suitable applicant. So after they conduct the investigation, they prepare their report, and they will inform us that the report is ready, then we can go to court and fix a hearing date. And at the hearing dates if everything goes smoothly, we will get the adoption order right away, immediately on the date of the adoption. That pretty much is the overall picture of the general procedure.

Frances Tsang  23:25
So, upon granting the adoption order, the adoptive parents will have the same parental obligations and rights as any other birth parent and the adopted child will also enjoy the same rights as any biological child under the laws of Hong Kong. So, this means that the child will basically be treated as a natural child of the family. And you know, there is no distinction between him and any child of the family who is of natural birth. This is quite significant. In recent years, especially as we see a lot of cases where an adoption, a private adoption is done for the purpose of relocation or getting overseas passports because let’s say if the birth parent of the child has remarried, and the new spouse has an overseas passport, getting the new spouse to adopt the natural born child of the birth parents can in fact, allow the child to get an overseas passport and because of you know the trend recently, a lot of families are relocating and if families intend to get a passport for any child who is you know a stepchild or child of a relative they may consider adoption so that the child will get a passport from the applicant of the adoption upon the adoption order. So today we talked a lot about the adoption, in general, as in what is the criteria for an adoption, the difference between doing an adoption privately and doing it through the Social Welfare Department and what procedures are there for adoption, including getting the consent following a court application and the effect of an adoption. So, Raphael, I notice that you’ve been in this firm for quite a while now, do you see any trend in respect of adoption cases in Hong Kong?

Raphael Wong  25:43
Yes, we do. We actually have received growing numbers of inquiries and interest in getting an adoption order. Now, you mentioned that passport is obviously one of the major reasons. But obviously, there are also other reasons, such as I’ve seen many families who have been caring for the infant for a number of years, and they do really want to formalize the relationship and strengthen the bonding. And I do agree that for this kind of cases, the adoption order would definitely be in the interests of the infant, they can finally call the carer his or her parents after taking care of themselves for so many years. And as I said, the market trend is that there is a growing number of interest and obviously people are also thinking of alternative living arrangements, so the passport would be something that is quite helpful for them.

Frances Tsang  26:45
Thank you, Raphael, for sharing your experiences on the procedures and the market trends on the adoption process. And it’s been really nice talking to you today. And hopefully, our listeners could also get some insights from this adoption podcast.

Raphael Wong  27:02
Thank you.

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This podcast is for informational purposes only. Its contents do not constitute legal or professional advice.