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g)  Adoption Ordinance (Cap 290)

2.120Section 13 of the Adoption Ordinance provides that all rights, duties, obligations and liabilities of parents or guardians of an infant in relation to, inter alia, future custody, including all rights to appoint a guardian to consent or give notice of dissent to marriage, shall be extinguished, and instead vest in the adopter.

2.121In Re Phillips,179 it was held by the High Court that a natural father, who had a court order of access in his favour after his divorce from the mother, was not unreasonably withholding his consent to adoption.  The fact that the mother had remarried was “by no means out of the ordinary and [the children] could live in harmony and affection without the need for adoption”.  The mother had argued that, unless an adoption order was made, the children would not be entitled to British citizenship or passports and so would not have a right of abode in Britain.

2.122The court said that welfare of the child was only one of three conditions for an adoption.  The first was that the consent of the parent must be given unless the consent could be dispensed with by the court.  The natural father had been regularly seeing the children once a month and he argued that to make the adoption order would unreasonably deprive him of his right to access granted by the court.  Changing the children’s surname was not a legitimate ground for adoption, or generally in the interests of the children.180

h)  Protection of Children and Juveniles Ordinance (Cap 213)

2.123An overlap of orders may occur where a child who is subject to a custody or access order as a result of a divorce, then becomes in need of care and protection and is removed from the custodial parent’s home, or from the parent who is exercising access.  The latter situation might arise where there is an allegation that the parent has been accused of sexually or physically abusing the child.  Alternatively, allegations of abuse against one parent may lead to the other parent seeking a divorce after care or supervision orders are made.  Then the question of access to the child by either parent, or by the abusing parent, may arise in the Family Court.  It is therefore necessary to consider the provisions of the Protection of Children and Juveniles Ordinance (Cap 213) that may overlap in relation to the rights of a parent in respect of a child who is in care.

2.124Section 34 of the Protection of Children and Juveniles Ordinance (Cap 213) gives power to the juvenile court to appoint the Director of Social Welfare as legal guardian of a child or juvenile where they are in need of care or protection.  The right to apply for such an order is restricted to the juvenile court itself, the Director, “or any person authorized by the Director of Social Welfare in writing in that behalf either generally or specially”, or any police officer.181  However, even if a parent or

179 [1987]1 HKC 503.

180 At 507, in reliance on Re D minors [1973] 3 All ER 1007.

181 Section 34(1).

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