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I. Adoption

Adoption is a legal process by which parental rights and responsibilities over a child are transferred from the birth parents to the adoptive parents. An adoption in Hong Kong must be effected in accordance with the Adoption Ordinance , Cap. 290 , Laws of Hong Kong. The guiding principle in the adoption process is the “best interests of the child” ( section 8 of the Adoption Ordinance ).

Local adoption service in Hong Kong is provided by the Adoption Unit of the Social Welfare Department and three non-governmental organizations, as Accredited Bodies:

  • International Social Service Hong Kong Branch
  • Mother’s Choice Limited
  • Po Leung Kuk

The statutory requirements concerning the accreditation system in respect of local adoption in the HKSAR are set out in sections 26 , 26A and 26B of the Adoption Ordinance .

II. Code of Practice for Accredited Bodies

The Code of Practice for Accredited Bodies is issued by the Director of Social Welfare (DSW) with delegated power conferred by the Secretary for Labour and Welfare for the purpose pursuant to section 32(b) and (d) of the Adoption Ordinance .

The aim is to set out the criteria, principles and guidelines that apply to the Accredited Bodies pursuant to section 26(1) to (6) in performing adoption services pertaining to local and inter-country adoption, as well as intra-country adoption where applicable.

The criteria are based on four international documents and three local documents.

International documents

  • The 1993 Hague Convention on Protection of Children and Co-operation in respect of Inter-country Adoption (the “1993 Hague Inter-country Adoption Convention”) and Guides to Good Practice, as well as other relevant documents endorsed by the Special Commission meetings on the practical operation of the Convention or published by the Permanent Bureau of the Hague Conference on Private International Law from time to time;

  • The 1989 United Nations Convention on the Rights of the Child;

  • The 1986 United Nations Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally;

  • The 1996 International Council of Social Welfare Guidelines for Practice on National and Inter-country Adoption and Foster Family Care; and The Child’s Right to Grow Up in a Family;

Local documents

Advertising relating to adoption-related matters is governed by section 23(1) of the Adoption Ordinance :

Except with the written consent of DSW, no advertisement shall be published indicating-

  1. that the parent or guardian of an infant desires to cause the infant to be adopted;
  2. that a person desires to adopt an infant; or
  3. that any person is willing to make arrangements for the adoption of an infant.

As the HKSAR is a party to the 1993 Hague Inter-country Adoption Convention, the HKSAR is obliged to follow the four general principles of the Convention, namely:

  • Ensuring adoptions take place in the best interests of the child and with respect for the child’s fundamental rights, including subsidiarity (see note), non-discrimination and measures supporting the ‘best interests’ principle;

  • establishing safeguards to prevent the abduction, sale or trafficking in children for adoption, including protection of families, combating the abduction, sale and trafficking of children, ensuring that proper consent is given, and preventing improper financial gain and corruption;

  • establishing co-operation between States, including co-operation between Central Authorities, co-operation regarding Convention procedures, and co-operation to prevent abuse and avoidance of the Convention; and

  • ensuring the authorisation of competent authorities, including Competent Authorities, Central Authorities, Accredited Bodies and Approved (non-accredited) Persons.

Note: According to The Implementation and Operation of the 1993 Hagus Intercountry Adoption Convention: Guide to Good Practice, “subsidiarity” means that States Party to the Convention recognize that a child should be raised by his or her birth family or extended family whenever possible. If that is not possible or practicable, other forms of permanent family care in the country of origin should be considered. Only after due consideration has been given to national solutions should intercountry adoption be considered, and then only if it is in the child’s best interests. Intercountry adoption serves the child’s best interests if it provides a loving permanent family for the child in need of a home. Intercountry adoption is one of a range of care options which may be open to children in need of a family.

III. Adoption applications

According to section 4 of the Adoption Ordinance , applications for adoption must be made to the District Court, and can be made by a sole applicant or a married couple as joint applicants.

Section 5 of the Adoption Ordinance sets out:

  1. The Court shall not make an adoption order authorizing a sole applicant to adopt an infant unless the applicant-
    1. is the mother or father of the infant;
    2. is a relative of the infant and is at least 21 years old;
    3. is a person who is married to a parent of the infant; or
    4. is at least 25 years old.
  2. The Court shall not make an adoption order authorizing applicants who apply jointly as two spouses to adopt an infant unless–
    1. one of the applicants is the mother or father of the infant; or
    2. the condition set out in subsection (1)(b) or (d) is satisfied in the case of one of the applicants, and the other applicant is at least 21 years old.
  3. An adoption order shall not be made 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.

As set out in section 23A of the Adoption Ordinance , only the Director of the Social Welfare Department, an Accredited Body or a person acting in pursuance of an order of the Court may deal with applications for unrelated adoptions and make arrangements for the adoption of a child.

It is not lawful for any person, except the persons and bodies stated above, to take or send a child residing in Hong Kong to any place outside Hong Kong for the adoption of the child by any person who is not a parent or relative of the child. Under section 23C of the Adoption Ordinance , a person who does so is guilty of an offence and is be liable to a fine at level 6 (currently $100,000) and to imprisonment for six months.

IV. Suitability assessment

A person residing in Hong Kong who intends to adopt an infant, other than a person who is (i) a parent or relative of the infant or (ii) married to a parent of the infant, must fill in a form specified by the Director of the Social Welfare Department (DSW) and submit it, in the case of local adoption, to DSW or an Accredited Body for assessment of his suitability to be an adoptive parent ( sections 27(1) and 27A of the Adoption Ordinance ).

The application must be submitted together with such information as the DSW or the Accredited Body may reasonably require, along with a written authorisation from the applicant to the Commissioner of Police authorising the Commissioner to to inform the DSW whether or not the applicant has a criminal record. In the case of local adoption where the application is submitted to an Accredited Body, the applicant may in the authorisation designate the Accredited Body rather than the DSW for the purpose of checking the applicant’s criminal record. On receiving an authorisation submitted to it, the Accredited Body must send the authorisation to the DSW for processing the criminal record check ( section 27A(2)-(4) ). After considering an application for local adoption, the DSW or Accredited Body may decide whether or not the applicant is suitable to be an adoptive parent ( section 29(1) ).

V. Adoption Placement

A. Specific consent

For local adoption, if a person is named in the consent as the prospective adopter for the infant, and the person applies to the Director of the Social Welfare Department (DSW) or an Accredited Body for an assessment of the person’s suitability to be an adoptive parent under section 29(1) of the Adoption Ordinance , then if the DSW or the Accredited Body has assessed the person to be a suitable adoptive parent, the DSW or the Accredited Body may proceed with the infant’s placement ( section 29A(2) and (3) ).

B. General consent

For local adoption where consent for the adoption of an infant is given in the prescribed general form of consent, if the DSW decides that an applicant assessed to be a suitable adoptive parent would be a suitable adoptive parent for a particular infant and that the placement of the infant with the applicant would be in the best interests of the infant, either the DSW or Accredited Body may proceed with the infant’s placement ( section 29B(2) ).

C. Matching

Before making a decision, the DSW must seek the opinion of each and every Accredited Body that has proposed any prospective adopter for that particular infant and any other persons the DSW may consider appropriate ( section 29B(3) ).

D. Termination of placement

If at any time after the DSW or an Accredited Body has proceeded with an infant’s placement with a prospective adopter for local adoption, the DSW or the Accredited Body opines that continuing the placement would not be in best interests of the infant, then the DSW or the Accredited Body may terminate the placement ( section 29D(1) and (2) ).

E. Reviews/Appeals

If a person is aggrieved by an Accredited Body’s decision on the assessment of the person’s suitability or an Accredited Body’s decision to terminate a placement, he may apply for a review by the DSW ( section 29E ).

If a person is aggrieved by the decision of the DSW on the assessment of the person’s suitability or the decision to terminate a placement, he may lodge an appeal with the Administrative Appeals Board against the decision ( section 30 ).

F. Adoption Order

An adoption order will be granted if the matters set out in section 8 of the Adoption Ordinance are satisfied, namely:

  1. The adoption, if made, will be in the best interests of the child, with due consideration given to the wishes and opinions of the child, having regard to his/her age and understanding;

  2. Every person whose consent is necessary under the Adoption Ordinance and whose consent is not dispensed with has consented to and understands the nature and effect of the adoption order and, in particular, that (except for a birth parent married to the sole applicant in the case of step-parent adoption) the effect of the adoption order will be to permanently deprive him/her of any parental rights. The consent should only be executed when the child is at least four weeks old;

  3. The applicant has not received or agreed to receive any payment or other reward in consideration of the adoption; and

  4. Section 5AA or 27A(2) of the Adoption Ordinance (as the case may be), has been complied with and, taking into account the information obtained by the DSW from the Commissioner of Police, the applicant is a fit and proper person to be granted the adoption order.

VI. Effects of adoption

A. Rights and duties of parents and capacity to marry

Section 13 of the Adoption Ordinance provides:

  1. Upon an adoption order being made–

    1. all rights, duties, obligations and liabilities of the parents (other than a parent referred to in section 5(1)(c) if the order is made under that section) or guardians of the infant in relation to the future custody, maintenance and education of the infant (in this section referred to as “ the relevant matters”), including all rights to appoint a guardian to consent or give notice of dissent to marriage, shall be extinguished;

    2. all the relevant matters shall vest in and be exercisable by and enforceable against the adopter, as if-
      1. where the order is made under section 5(1)(c) , the infant were a child born to the adopter and the parent referred to in that section in lawful wedlock;
      2. in any other case, the infant were a child born to the adopter in lawful wedlock; and
    3. in respect of the relevant matters-
      1. where the order is made under section 5(1)(c) , the infant shall stand to the adopter and that parent exclusively in the position of a child born to them in lawful wedlock;
      2. in any other case, the infant shall stand to the adopter exclusively in the position of a child born to the adopter in lawful wedlock.
  2. In any case where–
    1. a married couple is the adopter; or

    2. the adopter’s spouse is the birth parent referred to in section 5(1)(c) ,

      then, in respect of the relevant matters, and for the purposes of the jurisdiction of any court whatsoever to make orders as to the custody and maintenance of and right of access to children–

    3. the spouses, or the adopter and the spouse, as the case may be, shall stand to each other and to the infant in the same relation as they would have stood if the infant had been born to them in lawful wedlock; and

    4. the infant shall stand to them in the same relation as to a lawful father and mother.
  3. For the purpose of the law relating to marriage, an adopter and the person whom he has been authorized to adopt under an adoption order shall be deemed to be within the prohibited degrees of consanguinity; and the provisions of this subsection shall continue to have effect even if a person other than the adopter is authorized by a subsequent order to adopt the same infant.

B. Intestacies, Wills and Settlements

Section 15 provides:

  1. Where, at any time after the making of an adoption order, the adopter or the adopted person or any other person dies intestate (dies without a will) in respect of any property, that property shall devolve (pass to other persons) in all respects-
    1. subject to paragraph (b), as if the adopted person were the child of the adopter born in lawful wedlock and were not the child of any other person; and

    2. where the order was made under section 5(1)(c) , as if the adopted person were the child of the adopter and the parent referred to in that section born in lawful wedlock and were not the child of any other person.
  2. In any disposition of property made, whether by instrument inter vivos (instruments made between living perons) or by will (including codicil, which means any written amendments to the will), after the date of an adoption order-
    1. any reference (whether express or implied) to the child or children of the adopter shall, unless the contrary intention appears, be construed as, or as including, a reference to the adopted person;

    2. subject to subsection (3), any reference (whether express or implied) to the child or children of the adopted person's birth parents or either of them shall, unless the contrary intention appears, be construed as not being, or as not including, a reference to the adopted person; and

    3. any reference (whether express or implied) to a person related to the adopted person in any degree shall, unless the contrary intention appears, be construed as a reference to the person who would be related to the adopted person in that degree-
      1. subject to subparagraph (ii), if the adopted person were the child of the adopter;

      2. where the order was made under section 5(1)(c) , if the adopted person were the child of the adopter and the parent referred to in that section, born in lawful wedlock and were not the child of any other person.
  3. Where the order was made under section 5(1)(c) , subsection (2)(b) shall not apply in relation to the parent referred to in that section.

VII. Foster Care

Foster care is very different from adoption.

Foster parents are not guardians of their foster children, nor do they have the rights and obligations of adopted parents.

They have no standing to apply to the court for custody of the children unless the Director of the Social Welfare Department (DSW) applies on their behalf. Only the parents of the children and the DSW can apply for custody under section 10 of the Guardianship of Minors Ordinance , Cap. 13 , Laws of Hong Kong.

Foster Care Service is provided by the Social Welfare Department.

Foster Care provides residential family care to children under 18 years of age whose parents cannot adequately take care of them for various reasons, so that they can continue to enjoy family life until they can be re-united with their families, join an adoptive family or live independently.

Foster Care (Emergency) provides immediate, short-term residential family care to children under 18 years of age whose parents cannot care for them because of an emergency or crisis situation, so that they can continue to enjoy family life until they can be reunited with their families or secure a long-term placement. The duration of care should not exceed six weeks.

VIII. Useful Links

Social Welfare Department: http://swd.gov.hk

Hong Kong Family Welfare Society: http://www.hkfws.org.hk

Hong Kong Children & Youth Services: http://www.cys.org.hk

International Social Service Hong Kong Branch: www.isshk.org

Mother’s Choice Limited: www.motherschoice.org

Po Keung Kok:http://www.poleungkuk.org.hk

FAQ

1. Is it right that only married couples can apply for adoption?

An application for adoption must be made to the District Court. It can be made by a sole applicant or a married couple as joint applicants. But the Court shall not make an adoption order authorizing a sole applicant to adopt an infant unless he/she is the mother or father of the infant; is a relative of the infant and is at least 21 years old; is a person who is married to a parent of the infant; or is at least 25 years old.

Besides, 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.

For more information about adoption application, please visit Child and Youth Affairs > Adoption and foster care > Adoption applications .

2. Under what circumstances will an Adoption Order be granted?

An adoption order will be granted if the following matters are satisfied:

  1. The adoption, if made, will be in the best interests of the child, with due consideration given to the wishes and opinions of the child, having regard to his/her age and understanding;

  2. Every person whose consent is necessary under the Adoption Ordinance and whose consent is not dispensed with has consented to and understands the nature and effect of the adoption order and, in particular, that (except for a birth parent married to the sole applicant in the case of step-parent adoption) the effect of the adoption order will be to permanently deprive him/her of any parental rights. The consent should only be executed when the child is at least four weeks old;

  3. The applicant has not received or agreed to receive any payment or other reward in consideration of the adoption; and

  4. Section 5AA or 27(3) of the Adoption Ordinance (as the case may be), has been complied with and, taking into account the information obtained by the Director of the Social Welfare Department from the Commissioner of Police, the applicant is a fit and proper person to be granted the adoption order.

For more details, please refer to Child and Youth Affairs > Adoption and foster care > Adoption placement .

3. Is an adopted child being treated as my natural born child in legal aspect?

Upon an adoption order being made, the infant shall stand to the adopter exclusively in the position of a child born to them in lawful wedlock.

Where, at any time after the making of an adoption order, the adopter or the adopted person or any other person dies intestate (dies without a will) in respect of any property, that property shall be given to other persons as if the adopted person were the child of the adopter born in lawful wedlock and were not the child of any other person.

For more information, please go to Child and Youth Affairs > Adoption and foster care > Effects of adoption .

4. Being a foster parent, can I adopt the child that is living with me now?

Foster care is very different from adoption. Foster parents are not guardians of their foster children, nor do they have the rights and obligations of adopted parents.

They have no standing to apply to the court for custody of the children unless the Director of Social Welfare applies on their behalf.

For more details about foster care, you may visit Child and Youth Affairs > Adoption and foster care > Foster care .

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