Adoption in Hong Kong is governed by the Adoption Ordinance.
The process begins with the consent of the birth parent(s) to put the child up for adoption. Consent is only waived in select circumstances, such as where the child is abandoned or when the birth parents cannot be located. Consent can be in “general form”, which means the Director of Social Welfare (DSW) can place the child for adoption with any approved adoptive parents, or it can be in “specific form”, which means the birth parents specify who the adoptive parents are to be. Where the consent of the parents is in issue, the DSW must apply for a court order that the child be available for adoption.
To be eligible, persons applying to be adoptive parents have to meet a set of criteria, which includes being over 25 years of age (or 21 if a relative), having good mental and physical health, stable employment and no criminal record. They will then tender a formal application to the Social Welfare Department (SWD) or one of the three accredited bodies (Mother’s Choice, International Social Services, Po Leung Kuk).
Where the proposed adopter is a relative of the child, such as a grandparent, uncle/aunt, or stepparent, privately arranged adoptions are possible. Otherwise, an assessment is conducted to evaluate the applicant against the criteria mentioned above which includes interviews and home visits.
Only applicants who are relatives of the child are exempt from the assessment requirement. Once applicants are deemed suitable, the SWD will match the applicant(s) with a child in consultation with the accredited bodies. Matching will be based on compatibility, and applicants of the same cultural, religious, and ethnic background as the child will be prioritized. Once matched, the child will be placed in the applicant’s home for six months to evaluate how well the child is adjusting to his or her new family, before a Court Order authorizing the adoption is granted. During such a placement period, if it is the view of the SWD or the relevant accredited body that it is not in the best interests of the child for the placement to continue, they may terminate the placement and remove the child. In the event of either of such placement termination or a determination of unsuitability at the initial assessment stage, an applicant may apply to the DSW or Administrative Appeals Board (as applicable) to review the decision.
Every adoption in Hong Kong must be approved by a Court Order, including privately arranged adoptions between relatives.
There is a checklist the court should refer to before making the order. The court is bound to consider the child’s welfare throughout his or her life, and that any delay in the adoption decision is likely to prejudice the child’s welfare. The court or adoption agency should have regard to the child’s ascertainable wishes in light of the child’s age and maturity, the child’s particular needs, the likely effect of having ceased to be a member of the original family and become an adopted person, The court will consider the child’s age, sex and background and any harm the child has suffered or is at risk of suffering, the relationship the child has with relatives or any other person the court or agency considers relevant.
Once an adoption order is made, the adoptive parents will assume all the rights and obligations of the birth parents, and in all respects, it will be as if that child had been born to them. That means the adoptive parents will be subject to the same parental obligations as any biological parent, and the children will enjoy the same rights as any biological child under the laws of Hong Kong, for instance, in the event of the intestacy of the adoptive parents. Indeed, any reference to “child” in a gift or Will of the adoptive parent will automatically, by law, be taken to include the adopted person.
What are the implications for foreign nationals?
Cross-border adoptions are governed by the Hague Convention on Protection of Children and Co-operation in respect of Inter Country Adoption dated May 1993, which is incorporated into Hong Kong law via the Adoption Ordinance (under Part 5,ss 20A-20J). Foreign nationals who wish to adopt Hong Kong children have to first apply to the “Central Authority” of their country – that is, the country’s equivalent of the Hong Kong DSW. An assessment by the Central Authority on the applicants’ suitability to become adoptive parents, which includes a home visit, will be transmitted to the DSW in Hong Kong.
Foreign applicants, therefore, need to ensure that they meet the requirements under their domestic regime and also those of Hong Kong – such as being over 25 years of age and having no criminal record. Equally, an assessment of the child’s suitability for adoption by the foreign applicants will be made by the DSW and transmitted to the foreign Central Authority. If both the DSW and the foreign Central Authority agree that adoption is suitable, the child will be placed for six months in the foreign applicants’ home for evaluation.
The application should be in two stages: to ascertain if the overseas adoption is in the child’s best interests and, if so, in relevant circumstances, whether it is appropriate to dispense with consent to adoption. In the case of overseas adoption, particular care will be taken and due consideration given to the child’s national, cultural, linguistic, and ethnic background.
Foreign applicants must always bear in mind that intercountry adoptions face a special hurdle – it is often in the interest of the child to remain within the same cultural milieu to reduce adjustment problems, and intercountry adoptions are only arranged if there are no suitable local homes. The court has held that, should an international adoption order be given, the child should be offered counselling and information on the effects of the adoption and the consent or wish, or opinion of the child should be taken into consideration.
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For further information, please contact:
Jocelyn Tsao, Partner, Withersworldwide
jocelyn.tsao@withersworldwide.com
