The aim of the Social Welfare Department’s Adoption Service is to “find a suitable and permanent home for illegitimate children or children whose parents are deceased, deserted the family, or unable to take care of them”. The paramount consideration in choosing the right home for the child is the best interests of the child. This has been forcefully reiterated in the recent High Court judgement of B v. B & another [2024] HKCFI 3356.

The case of “B” was transferred from the Family Court to the High Court for the purposes of obtaining guidance given that this was a sole applicant adoption “with same sex orientation, who had registered his marriage overseas with his life partner.”

Background

The Child was placed into the care of the Director of Social Welfare (“DSW”) when he was only 3 months old. After a year, a suitable placement for the Child was found with the Applicant. The Child was placed under his care in June 2023.

The Applicant is a working professional who had entered into same-sex marriage with his husband in Scotland in 2013.

The Applicant and his husband wished to adopt a child.  Despite being lawfully married overseas, in 2016 the Applicant applied as a sole applicant for adoption and was later approved as a suitable prospective adoptive parent. The rationale - at the time (which was before the decided judgments in QT v. Director of Immigration and the cases that followed) - was that the definition of “spouse” in the Adoption Ordinance (“AO”) would not apply to a couple in a same-sex marriage.

Since being placed with the Applicant, the Child - a happy toddler - bonded well and made great improvements and developments in his adoptive home. The placement was a success. The DSW recommended granting the adoption order as being in the best interests of the Child.

Family Court: Application for Adoption

In October 2023 the Applicant made the usual application to the Family Court for an adoption order.  An adoption hearing was fixed on 20 December 2023.

However, only two days before the adoption hearing, the Family Court Judge (the “Judge”) vacated the hearing and raised certain questions to the DSW concerning, among other things, the impact that the Applicant’s homosexual orientation and relationship with his husband would have on the Child and whether it would be in the Child’s best interests for the adoption order to be made.

On 20 December 2023, the Applicant promptly filed a response to the questions raised by the Judge, which was supported by Hong Kong Court of Final Appeal and Court of Appeal authorities along with academic works.

The Judge ordered the Department of Justice (“DOJ”) to assist the Court in giving its views on the Applicant’s response.

The DSW filed a further report on 30 January 2024 explaining why she maintained that the proposed adoption arrangements were in the best interest of the Child. This did not, however, answer the Judge’s questions regarding the impact that the Applicant’s homosexual orientation and same-sex marriage would have on the Child.

On 9 February 2024 the DOJ replied to the Judge saying that it expressed no views on the Applicant’s response and supporting materials.

On 24 April 2024, without following any due process, the Judge transferred the case to the High Court.

At the High Court call-over hearing on 5 June 2024, the Court ordered that the Official Solicitor be appointed as the Child’s guardian ad litem in place of the DSW and that DSW be added as second respondent.  The case was then listed for substantive argument on 15 October 2024.

High Court Hearing

Hon H. Au-Yeung J took the view that not only was it in the best interest of the Child for an adoption order to be made, but that it should be made forthwith without further delay. A final adoption order was, therefore, made at the end of the hearing with his reasons to follow.

In his judgment, Hon H. Au-Yeung J commented that the suitability assessment of the partner of the applicant is irrespective of the sexual orientation of the applicant and his/her partner and whether they are registered as civil partners or as married in a foreign jurisdiction.

While a number of authorities were referred to dating back to S v. S [1980] – where a lesbian mother was unsuccessful in applying for custody of her two children, Hon H. Au-Yeung J emphasized that it is essential that Hong Kong law shall keep pace with social realities. He referred to the English case of Re M (Children) (Ultra-Orthodox Judaism: Transgender) (Stonewall Equality Ltd & Anor intervening) [2018], where he applied and endorsed the findings herein that welfare is to be judged by reference to the changing views, as years go by, of reasonable men and women as of today, and therefore there is a need to have regard to the ever changing nature of the world including changes in social standards and changes in social attitudes.

On the question of the impact of the Applicant’s homosexual orientation and same-sex marriage, Hon H. Au-Yeung J concluded:

“Whether an applicant's application for an adoption order should be accepted should depend on the ultimate question of whether it is in the best interests of the child concerned for the order to be made rather than solely on the basis of the applicant's sexual orientation which should only be one of the factors to be considered. Indeed, in the present case, no evidence has been adduced to show that the fact that the parents are homosexual would have any negative impact on the sexual orientation development of the Child. Further, in the last 20 years since W v W, our society norm regarding same sex orientation and marriage have evidently moved on. These serve to reinforce the appropriateness of the approach adopted.”

The question that then remained for the Court was whether the same-sex marriage would have any impact on the adoption application.

Hon H. Au-Yeung J recognized that while the DSW has always treated the term “spouse” to mean somebody of the opposite sex, it does not necessarily mean that, for the purpose of the AO, it cannot be interpreted to include a same-sex partner who married in a jurisdiction where it was legal to do so.

However, this question did not have to be determined in the present case since it was a sole applicant adoption and the husband had filed Form 4 (giving consent to the application) in order to play safe. He, however, went on to say:

“… I am given to understand that even though the applicant has applied as a sole applicant, given his relationship with the Husband, the Director had taken such a relationship into account when deciding whether the applicant is a suitable adopter of the Child. The Director had also considered the relationship between the Child and the Husband, and in this regard, the Husband's attitude towards the application must be a relevant matter to be considered. Viewed in this light, whether the Husband should be regarded as the applicant's "spouse" under the Ordinance would only affect the application procedurally but not in substance, and I cannot see why (and no one has suggested otherwise) the current practice of the Director should change, as I hold the view that the best interests of the prospective adopted child can still be sufficiently protected.”

Post-Script

Hon H. Au-Yeung J concluded his judgment criticizing the Judge for the manner in which the case was transferred from the Family Court to the High Court without asking the parties to make representations or to have a hearing on the matter in the first place.

He went on to criticize the DOJ for disregarding the Judge’s request for assistance by expressing no views on the response to the Judge’s questions that was provided by the Applicant, opining that if the DOJ had acceded to the Judge's request, it was possible that the Judge would be satisfied that the transfer was not necessary and the adoption order could have been made much earlier.

The Outcome

The Court held that:

Final considerations

This judgment highlights the ever-changing nature of families in Hong Kong and reinforces that the paramount consideration in an adoption application is whether the applicant is a fit and proper person to have the care and control of the child.  It is hoped that this judgment will allow other adoption orders involving same-sex partners, where the DSW has recommended granting an adoption order, to be made without unnecessary and unjustified delay.

Author:   Raphael Wong