HONG KONG SAR, CHINA Law and Practice Contributed by: Jocelyn Tsao and Philippa Hewitt, Withers
• The sole applicant must either be a parent or a relative of the parent, or married to a parent of the child or over 25. • The spouses must either be over 21, or one of them must be the mother or father of the infant. • No sole male applicant can adopt a girl, unless in exceptional circumstances. • There is a residency requirement – both infant and applicants must reside in Hong Kong and the infant must have been in the care of the applicant for at least six months before making the order – unless one applicant is a parent, in which case this requirement is reduced to 13 weeks. • The birth parents must give their consent to free the child for adoption (which, in exceptional cir - cumstances, can be overruled by the court). • There is a stringent vetting process including health checks, criminal record checks, and an assess - ment by a qualified social worker. • No one other than the Director of Social Welfare, a parent or someone married to a parent can place a child up for adoption. • The court, in making an adoption order, must be satisfied that this is in the best interest of the child and that the adopters are fit and proper people. • The court must be satisfied that no reward or con - sideration has been made in respect of the adop - tion. For the purpose of international adoptions, in con - sideration of the Hague Convention on Protection of Children and Co-Operation in Respect of Inter - country Adoption, the consent of the child should be considered (although is not required to be obtained under Hong Kong law) and the child should receive counselling and information on the effects of the adoption, depending on the age and maturity of the child: Director of Social Welfare v LPK (Overseas adop - tion) [2023] HKCFI 2014.
other parent and, if proceedings have been issued, with leave from the court. 2.2 Relocation Without Full Consent If the required consent is not given, the parent hop - ing to relocate will have to make an application to the court for leave to permanently remove the child, or, if the child has been removed already, leave to remain outside the jurisdiction of Hong Kong. The court will need to consider a number of factors in determining whether it is in the best interests of the children to relocate, which are listed in 2.3.1 Factors Determining an Application for Relocation . 2.3 Application to a State Authority for Permission to Relocate a Child 2.3.1 Factors Determining an Application for Relocation In a contested removal case, the court will consider a number of factors, the first and most paramount being to determine what is in the best interests of the child. Although the Proposed Children’s Proceedings (Parental Responsibility) Bill referenced in 1.1 Paren- tal Responsibility has yet to be passed, the courts regularly reference the “welfare checklist” from that Bill to assist them in determining issues relating to custody as well as to relocation. The welfare checklist provides a list of factors to which a court must have regard (under the draft Bill but per - suasive in practice) and which is regularly referred to in the Hong Kong courts: • the ascertainable views of the child concerned (considered in the light of the child’s age and understanding); • the child’s physical, emotional and educational needs; • the nature of the relationship of the child with each of the child’s parents and with other persons; • the likely effect on the child of any change in the child’s circumstances; • the child’s age, maturity, sex, social and cultural background and any other characteristics of the child that the court considers relevant;
2. Relocation 2.1 Whose Consent Is Required for Relocation?
Where one parent wishes to move a child of the fam - ily permanently out of the family home and to a new country, this can only be done with the consent of the
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