Considering the right to family within the context of multiple sibling adoption

In Hong Kong, the right to family life is enshrined in Article 19 of the Bill of Rights Ordinance (Cap. 383), which recognises family as “the natural and fundamental group unit of society”. Further, Article 14 protects one’s rights from arbitrary or unlawful interference with family or home. Article 37 of the Basic Law protects our rights to “raise a family freely”. In the context of adoption, a child’s parental relationship can be a central point of discussion – which is reflected in the legal framework, for instance, both parents’ consent is required before an adoption order can be made. Significance attached to sibling relationships, despite strong research that they are in fact, the most enduring relationships in most people’s lives – is rarely extensively considered by Hong Kong courts – until now. In Director of Social Welfare v LPK [2024] HKCFI 421, the Court had to grapple with a rather unusual case involving 7 children born to the same mother.

In LPK, the Director of Social Welfare applied for an order to declare two infants, respectively the 6^th and 7^th child born to two non-married parents with a history of drug use, free for adoption and to dispense with the consent of the Defendant mother. The mother and the putative father have 7 children together but none of them are under parents’ care. The first five have been freed for adoption.

While the Honourable Justice Au-Yeung was satisfied that all statutory requirements were met, Her Ladyship was mindful that the Court should not merely “rubber stamp” freeing applications, and expressed her concerns as to the human rights of the two siblings. In fact, in her Decision in two earlier cases relating to older siblings born to the same parents, Her Ladyship surmised that the right to family life may be engaged, as, despite being abandoned or neglected by their parents, the children may very well be willing and able to build their own families. The Court restated similar concerns here as to “whether children born of the same mother have had access to their siblings, at least before adoption was carried out, and their rights to a family that society should protect.”

Her Ladyship went on to direct that these issues must be considered before the Court can decide whether to make a freeing order. In this regard, the Official Solicitor was required to file a report to address questions relating to human rights of the children and possible minimum measures to safeguard such rights.

It is an established principle in child protection practice that siblings should, ideally, be kept together. The Guidelines for the Alternative Care of Children released by the United Nations in 2010 state that:

“Siblings with existing bonds should be in principle not be separated by placements in alternative care unless there is a clear risk of abuse or other justification in the best interests of the child.”

The importance of sibling relationships was considered by the UK Court of Appeal in Re B (a Child) (Sibling Relationship: Placement for Adoption) [2018] EWCA Civ 20. The proceedings related to a little girl, B, who was born in the spring of 2016. B had an elder full brother, H, who was born in 2015 and was adopted in 2016. The essential issue was whether B should be placed with H’s adoptive parents or with her father’s cousin. In favoring the former, one of the most important factors that the trial judge took into account was that B could be brought up with a full sibling, meaning that “she would never be alone, she would have the shared experiences of being brought up in the same household, which will promote identity and self-esteem.” The Court of Appeal considered the trial judge’s conclusion that B’s future relationship with H “tipped the balance and was determinative of the outcome”, and was “securely founded in the evidence.”

The LPK Decision is a welcome development to bring into the forefront the crucial human rights considerations involved within adoption and alternative care solutions.

Joanne Brown and Phoebe Chan

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Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication. This article was last updated on 08 April 2024.