“The bond that links your true family is not one of blood, but of respect and joy in each other’s life” is one of the American writer Richard Bach’s quotes that can be easily understood by the many people who have chosen to adopt children.
According to UNICEF, there are roughly 153 million orphans worldwide and an estimated 5,700 more children become orphans every day. There are more than a quarter of a million children who get adopted each year worldwide, with most of adoptions happening in the USA and China.
Historically, adoption occurred mainly to preserve and transmit family ties or inheritance, to gain political power or to forge alliances between families, while today the principle of ensuring that the best interests of the child are served by adoption is the main consideration in most of the legal systems around the world. The phenomenon of adoption is becoming rather common in most developed economies, and Hong Kong is no exception.
The adoption process
The “best interest of the child” is at the base of the Adoption Ordinance (Cap. 290), which regulates the whole legal process. The first step starts with the consent of the biological parents – unless the case involves an abandoned child or an orphan – to put the child up for adoption. Local adoption service is in the hands of Social Welfare Department (SWD) and three other accredited NGOs (International Social Services, Po Leung Kuk and Mother’s Choice).
Consent can be given by the SWD by placing the child for adoption with the approved adoptive parents (“general consent”) or by the biological parents specifying who they wish the adoptive parents to be (“specific consent”). Private adoptions can happen in rare cases, for example when the proposed adopting individual(s) is/are relatives or stepparents of the child. We will talk about such issue in the last part of this article.
The adoptive parents need to comply with a set of criteria in order to be able to go through the process: to be at least 25 y.o., to be in good mental and physical health conditions, to have a stable employment and not to have a criminal record. They also need to go through a specific assessment that will include interviews, psychological and lifestyle assessments to be deemed fit to adopt a child. The SWD will find the most compatible match also considering cultural, religious and ethnic backgrounds.
Before a court order approves and finalises the adoption, there will be a 6 months placement of the child into the adoptive parents’ home to ensure that the adjustment is smooth. Once an adoption order is issued, the adoptive parents will assume all the rights and obligations of the biological parents and the child will be considered as he/she was their natural child. Therefore, the adoptive parents will be subject to the same parental obligations as any other birth parent, and the children will enjoy the same rights as any biological child under the laws of Hong Kong, e.g. in the event of intestacy of the adoptive parents. In fact, any mention of “child” in a gift or Will of the adoptive parents will automatically by law be considered to include the adopted child.
Single parent adoption
In accordance with the Adoption Ordinance, a single person can apply for adoption as long as the applicant fulfils the adoption requirements of Hong Kong. However, the Court will not make an adoption order in respect of a female infant in favour of a sole male applicant, unless the Court is satisfied that there are special circumstances which justify as an exceptional measure the making of an adoption order.
All of the eligible children are placed into the “adoptees pool”, regardless of where they might be living. The SWD – in cooperation with the NGO agencies – will then try to make the best match between the children and parents available. It is not a queue and all parents in the pool have equal opportunities at being chosen. Priority is given to the very best possible match of child and parental circumstances, ethnicity and preferences, as opposed to who has been waiting the longest, which means that generally the chances to adopt as a single parent are slimmer or that the process might take longer.
As same sex marriage is not recognised in Hong Kong, same sex couples cannot adopt together. One of the party may adopt as a single parent, but he or she would have to satisfy the same criteria above.
“Step-parent adoption” means an adoption of a child by a stepparent where one birth parent retains custody and control of the child.
Section 5(2) of the Adoption Ordinance states that an adoption order may be made in respect of an infant on the joint application of two spouses if, inter alia, either of the applicants is the mother or father of the infant. It follows that a birth parent who remarries has to apply to adopt his/her own child from a former marriage if his/her new spouse wishes to adopt the child, thereby “downgrading” the status of a biological parent to an adoptive parent.
Our team at Hugill & Ip has extensive experience in dealing with Hong Kong family laws – so kindly get in touch with us to find out how we can help.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.