Re K (Child: Adoption)  2 HKLRD 191,  HKCFI 556
Philip Dykes SC represented the Plaintiffs in Re K (Child: Adoption)  2 HKLRD 191,  HKCFI 556.
P1 and P2 (collectively Ps) were husband and wife, now aged 59 and 62 years respectively. The child, K, was born through a surrogacy arrangement in the USA which Ps had arranged. K was carried by a woman other than P2 as a result of artificial insemination and Ps’ gametes were not used to bring about the creation of the embryo. Ps obtained a judgment from the Superior Court of the State of California stating that they were K’s legal parents at her birth and were registered as K’s legal parents on her birth certificate. K obtained a US passport and came to Hong Kong on a visitor’s visa which permitted her to stay in Hong Kong for 90 days, and the visa had been extended. Ps applied for a Hong Kong Permanent Identity Card for K. However, as they were not K’s natural parents, Ps could not proceed further with the application and voluntarily withdrew their application. Ps first applied for K to be made a ward of the Court by an ex parteoriginating summons, allegedly because of her uncertain legal status. This was eventually withdrawn following the granting of leave for Ps to issue a concurrent originating summons (OS). In the OS, Ps sought, inter alia, that K remain a ward of the court, interim care and control of K and leave for K to be free for adoption. Prior to the directions hearing in *192 respect of the OS and without obtaining leave of the Court, Ps issued an application in the Family Court for K’s adoption. A Social Investigation Report (SIR) was prepared in relation to K’s interim care arrangements.
Held, ordering K to cease being a ward of the Court and that any application under s.23A and/or s.5A of the Adoption Ordinance (Cap.290) to be made in the Family Court, that:
- (1) Since Ps were applying for leave to adopt K themselves, and not simply that K be free for adopting by any other suitable adopters, Ps should not have sought an order that K be free for adoption under s.5A of the Ordinance. Ps should have sought an order under the OS for leave to them to make private arrangements to adopt K under s.23A of the Ordinance and/or K be placed with them for adoption; and Ps had finally issued an ex parte summons for retrospective leave to commence adoption under s.23A(1) (Director of Social Welfare v YKK  4 HKLRD 30, Re M (Leave for Adoption Arrangements)  4 HKLRD 476 considered). (See paras.9, 12 – 13.)
- (2) It was procedurally wrong to apply for K’s adoption prior to the directions hearing and without leave. Upon the issue of the OS, K had already become a ward of the Court. No major steps concerning K’s welfare or interest should have been taken by anyone without leave of the Court. In any event, the SIR did not contain sufficient information to assist the Court to consider the Adoption Checklist factors and/or to form any view as to whether it was in K’s best interest to be adopted by Ps, and/or for leave to be given to Ps under s.23A of the Ordinance (Director of Social Welfare v YPC  5 HKLRD 233 referred to). (See paras.10, 46.)
- (3) Ps were not K’s biological parents and under Hong Kong law, they were not K’s legal parents. There was no uncertainty in K’s legal status in Hong Kong. Furthermore, there was insufficient evidence to demonstrate that K would be removed from the jurisdiction unilaterally without either of Ps’ consent or that K’s visitor’s visa would not be extended by the Director of Immigration upon expiration. There was no evidence that K required any protection from the Court or why K should remain a ward of Court. There was, therefore, no reason for K to continue to remain a ward of the Court. (See para.47.)
- (4) The District Court (Family Court) had jurisdiction to entertain both ss.5A and 23A applications under the Ordinance in relation to local adoption. Only applications under Part 5 and s.23B were in the exclusive jurisdiction of the Court of First *193 Instance. The proper venue for hearing of an adoption application was the District Court, subject to s.4A(2) of the Ordinance and r.17(2) of the Adoption Rules (Cap.290A, Sub.Leg.). Even though the Court of First Instance had inherent jurisdiction in wardship proceedings to order a transfer from the District Court, there was no evidence of a likely opposition from K’s biological parents or the gamete donors to the proposed adoption. There were no grounds or reasons for the adoption application to be transferred up from the District Court (Re C (Adoption)  1 HKLRD 1 applied). (See paras.47 – 49.)
[The above is excerpted from the headnote to the report in HKLRD.]