Hong Kong Ordinances

ADOPTION ORDINANCE - SECT 5

Restrictions on making adoption orders

(Past version on 01/07/1997).
(Past version on 30/06/1997).

(1) The Court shall not make an adoption order authorizing a sole applicant to
adopt an infant unless the applicant-

   (a)  is the mother or father of the infant;

   (b)  is a relative of the infant and has attained the age of 21 years;

   (c)  is a person who is married to a parent of the infant; or

   (d)  has attained the age of 25 years. (Replaced 28 of 2004 s. 8)

(2) The Court shall not make an adoption order authorizing applicants who
apply jointly as 2 spouses to adopt an infant unless-

   (a)  one of the applicants is the mother or father of the infant; or

   (b)  the condition set out in subsection (1)(b) or (d) is satisfied in the
        case of one of the applicants and the other applicant has attained the
        age of 21 years. (Replaced 28 of 2004 s. 8)

(3) An adoption order shall not be made in respect of an infant who is a
female in favour of a sole applicant who is a male, unless the Court is
satisfied that there are special circumstances which justify as an exceptional
measure the making of an adoption order. (Amended 48 of 1977 s. 2)

(4) (Repealed 28 of 2004 s. 8)

(5) Subject to sections 5A and 6, an adoption order shall not be made-
(Amended 48 of 1977 s. 2; 13 of 1987 s. 3)

   (a)  in any case, but subject to section 20C(4), except with the consent of
        every person who is a parent or guardian of the infant, or who is
        liable by virtue of any order or agreement to contribute to the
        maintenance of the infant; or (Amended 28 of 2004 s. 8)

   (b)  on the application of one of 2 spouses, except with the consent of the
        other spouse.

(5A) A parent whose consent to an adoption order is required by virtue of
subsection (5)(a) shall give that consent as the Director thinks fit in either
the prescribed general form of consent or the prescribed specific form of
consent. (Added 48 of 1977 s. 2)

(5B) Subject to subsection (5C), where the consent of a parent is given in the
prescribed general form of consent, the parent shall cease to have any
parental rights, duties, obligations or liabilities in respect of the infant
with effect from the execution of the form of consent. (Added 48 of 1977 s. 2)

(5C) A parent whose consent to an adoption order was given in the prescribed
general form of consent may revoke his consent by giving written notice of
revocation to the Director within 3 months from the day on which the form of
consent was executed, but subject to subsections (5D) and (5E) and save as
aforesaid the consent shall be irrevocable. (Added 48 of 1977 s. 2)

(5D) Notwithstanding subsection (5C), a parent whose consent to an
adoption order was given in the prescribed general form of consent may, at any
time after the expiry of the period of 3 months referred to in that subsection
and before the making of an adoption order, apply to the Court for an order
revoking that consent on the ground that he wishes to resume the parental
rights, duties, obligations and liabilities; and while the application is
pending the Court shall not make any adoption order in respect of the child
the subject of the consent. (Added 48 of 1977 s. 2)

(5E) Where-

   (a)  a parent revokes his consent by a written notice under subsection
        (5C); or

   (b)  the Court makes an order under subsection (5D) revoking a consent,
        then—

   (c)  the parental rights, duties, obligations and liabilities relating to
        the child shall vest in the parent; but

   (d)  the revocation shall not affect any right, duty, obligation or
        liability so far as it relates to any period before the day when the
        Director receives the notice or the date of the order (as the case may
        be). (Replaced 28 of 2004 s. 8)

(5F) The Director shall, immediately upon the execution of the prescribed
general form of consent by a parent, be guardian ad litem of the infant and
may, where the infant does not have a guardian or no guardian can be found,
perform such duties of a guardian as may be necessary in the best interests of
the infant. (Added 48 of 1977 s. 2. Amended 28 of 2004 s. 8)

(6) Subject to section 20C(5), an adoption order shall not be made in respect
of any infant unless the applicant and the infant reside in Hong Kong.
(Amended 66 of 1999 s. 3; 28 of 2004 s. 8)

(7) An adoption order shall not be made in respect of any infant unless-

   (a)  subject to paragraphs (aa) and (ab), the infant has been continuously
        in the actual custody of the applicant for at least 6 consecutive
        months immediately preceding the date of the order; (Amended 21 of
        1960 s. 4; 13 of 1987 s. 3; 28 of 2004 s. 8)

   (aa) where the applicant or either of the applicants is a birth parent of
        the infant, the infant has been continuously in the actual custody of
        the applicant (or both applicants, where there are joint applicants)
        for at least 13 weeks immediately preceding the date of the order;
        (Added 13 of 1987 s. 3. Amended 28 of 2004 s. 8)

   (ab) where the applicant applies under subsection (1)(c), the infant has
        been continuously in the actual custody of the applicant and the birth
        parent referred to in that subsection for at least 13 weeks
        immediately preceding the date of the order; (Added 28 of 2004 s. 8)

   (b)  the applicant has lodged with the Director, not less than- (Amended 28
        of 2004 s. 8)

        (i)    6 months before the date of the order; or

        (ii)   such shorter period before that date as the Court may allow on
               application by the applicant, notice in writing in the
               prescribed form of his intention to apply for an adoption order
               in respect of the infant; (Replaced 62 of 1971 s. 2. Amended 28
               of 2004 s. 8)

   (c)  the applicant has, within 4 months after the date of lodging such
        notice as is referred to in paragraph (b), applied to the Court for an
        adoption order in respect of the infant. (Added 21 of 1960 s. 4)

(8) Without limiting any other circumstances in which the Court may determine
that continuous actual custody has not been broken for the purposes of
subsection (7), continuous actual custody shall not be regarded as broken
during any period when the infant-

   (a)  is an in-patient in a hospital;

   (b)  resides at a boarding school either in or outside Hong Kong; or

   (c)  receives full-time education outside Hong Kong. (Replaced 28 of 2004
        s. 8)

(9) For the purposes of paragraph (b) of subsection (7), in the case of an
adoption in relation to which section 27 applies, no notice under that
paragraph may be lodged unless the applicant has been assessed to be a
suitable adoptive parent under section 29 and the provisions of section 29A,
29B or 29C (as may be applicable) have been complied with. (Added 28 of 2004
s. 8) [cf. 1950 c. 26 s. 2 U.K.]