99 further the provisions of section 22 of the

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9.9 Further, the provisions of section 2(2) of the Ordinance are unfair because by paragraph (c) a child adopted by an intestate in accordance with Chinese law and custom before 31 December 1972, and recognised as such in Hong Kong, is not recognized by the Ordinance as being a child of the intestate even though such an adoption is specifically preserved by the Adoption Ordinance Cap. 290. Section 25 of that Ordinance provides – "25 (1) After the 31st December 1972, an adoption in Hong Kong may be effected only in accordance with this Ordinance. (2) Subsection (1) shall not affect in any way the status or rights of a person adopted in Hong Kong under Chinese law and custom before the 31st December 1972." Incidentally, the Adoption Ordinance makes no mention of the status of a child adopted under Chinese law and custom on the 31st December 1972. 9.10 The Commission's approach to the question of the inheritance rights of the illegitimate person has been influenced by the more enlightened community attitudes revealed by the 1985 local opinion survey referred to earlier. We have also been mindful of Article 26 of the International Covenant of Civil and Political Rights. This provides that the law should provide effective protection against discrimination on grounds including social origin or birth. 47
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Recommended changes 9.11 We recommend that section 2 of the Ordinance be amended to correct these anomalies as follows – (1) Section 2(2) to be repealed . As this entails the repeal of section 2(2)(b), the outcome in Mr. Thompson's examples will no longer offend all concepts of fairness. Hence in case 3 D will inherit to the exclusion of B and in case 6 S will inherit to the exclusion of C. (2) A new section 2(2) to be inserted in the Ordinance along the lines of section 1 of the Family Law Reform Act 1987 (which is set out above in para 3.27 dealing with wills) providing that relationships be construed regardless of the concept of legitimacy . (See clause 2 of the Bill at Annexure 7, which is in identical terms to the English provision.) (3) An additional sub-paragraph to be added to paragraph (c) to provide for a child adopted in accordance with Chinese law and custom on or before 1 January 1973 . (See clause 2 of the Bill). (4) That section 10(1) of the Legitimacy Ordinance Cap. 184 be repealed , as a consequence of our other recommendations (see clause 17 of the Bill). (5) That section 25(2) of the Adoption Ordinance Cap. 290 be amended by repealing "31 December 1972" and substituting "1 January 1973" . (See clause 19 of Bill). The illegitimate intestate 9.12 As the law stands at present, and subject to the other rules of distribution (for example, children take before parents, parents take before siblings etc.) the only persons who are entitled to the estate of an illegitimate person who dies intestate are (1) the intestate's own children or issue under the normal provisions of the Ordinance, since the illegitimacy does not affect them; (2) the intestate's mother, under section 10(2) of the Legitimacy Ordinance Cap. 184, and (3) a brother or sister of the half blood of the intestate who has the same father as the intestate by virtue of the provisions of section 2(4) of the Ordinance.
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