Hong Kong Regulations

THE RULES OF THE HIGH COURT - ORDER 121

CHILD ABDUCTION AND CUSTODY ORDINANCE (Cap 512)

(Past version on 20/02/1998).

PROCEEDINGS AND APPLICATIONS

1. Interpretation (O. 121, r. 1)

(1) In this Order "the Ordinance" means the Child Abduction and Custody
Ordinance ( Cap 512) and a section referred to by number means the section so
numbered in the Ordinance.

(2) Expressions used in this Order which are used in the Ordinance have the
same meanings in this Order as in the Ordinance.

(3) In this Order, unless the context otherwise requires-

"application" means an application under the Convention or the Ordinance;

"decision" includes a judgment or an order of any judicial authority as well
as an order of an administrative authority;

"relevant authority" includes the Court, a District Court and a juvenile
court.

2. Mode of application (O. 121, r. 2)

(1) Subject to paragraph (2), every originating application may be made by
originating summons in Form No. 10 in Appendix A. (L.N. 152 of 2008)

(2) Where an applicant seeks a direction under rule 9 without having filed an
originating summons, the Court may, on sufficient cause being shown, allow
such an application to be made on the applicant's undertaking to the Court to
issue an originating summons as soon as possible and on such other terms, if
any, as the Court thinks fit.

3. Application for return of a child (O. 121, r. 3)

(1) An application for the return of a child shall be supported by an
affidavit sworn by the applicant or, if the circumstances of the case justify
it, a person duly authorized to swear it on behalf of the applicant, and the
affidavit shall, so far as it is possible to do so-

   (a)  state the following-

        (i)    the matters specified in Article 8(a) to (d) of the Convention;

        (ii)   if applicable, the matters stated in Article 8(e) and (f) of
               the Convention;

        (iii)  particulars of any pending or concluded proceedings, including
               proceedings out of Hong Kong, relating to the child;

        (iv)   any other information which may assist in securing the return
               of the child;

   (b)  exhibit all relevant documents.

(2) The affidavit shall be filed at the same time as the application except
that, in a case of urgency, the affidavit may be filed as soon as possible
after the application.

4. Application for a declaration under section 10 (O. 121, r. 4)

(1) An application for a declaration that the removal or retention of the
child was wrongful shall be supported by an affidavit sworn by the applicant
or, if the circumstances of the case justify it, by a person duly authorized
to swear it on behalf of the applicant, and the affidavit shall, so far as is
possible-

   (a)  state-

        (i)    full particulars of the request made by the requesting state;

        (ii)   the matters specified in Article 8(a) to (c) of the Convention
               and all other facts on which the applicant relies;

   (b)  exhibit all relevant documents.

(2) The affidavit shall be filed at the same time as the application except
that, where the case is one of urgency, the affidavit may be filed as soon as
possible after the application.

5. Defendants (O. 121, r. 5)

(1) The following persons shall be made defendants to an application for the
return of a child-

   (a)  the person alleged in the affidavit to have brought into Hong Kong the
        child in respect of whom the application under the Convention is made;

   (b)  the person with whom the child is alleged in the affidavit to be;

   (c)  any parent or guardian of the child who is not otherwise a party;

   (d)  the person in whose favour a decision, including a decision of a
        relevant authority in a Contracting State other than Hong Kong,
        relating to custody has been made, if he is not otherwise a party; and

   (e)  any other person who has a sufficient interest in the welfare of the
        child.

(2) The persons referred to in paragraph (1)(b) to (e) shall be made
defendants to an application under section 10.

6. Time for acknowledging service (O. 121, r. 6)

The time limited for acknowledging service of an originating summons issued
pursuant to rule 2 is 7 days after the service of the originating  summons,
including the day of service, or 14 days after the service of the
originating summons, including the day of service, where the service has taken
place outside the jurisdiction.

7. Further evidence (O. 121, r. 7)

(1) Any defendant may within 5 days after acknowledging service of the
originating summons file and serve on the other parties any affidavit on which
he intends to rely.

(2) The plaintiff may within 5 days thereafter file and serve on the defendant
an affidavit in reply.

8. Assignment of proceedings (O. 121, r. 8)

Every application shall be heard and determined by a judge, except that
applications to extend time and to join a defendant may be heard by a Master,
and shall be dealt with in chambers unless the Court otherwise directs.

9. Interim directions (O. 121, r. 9)

An application for interim directions under section 7 may, where the case is
one of urgency, be made ex parte.

10. Stay of proceedings (O. 121, r. 10)

(1) A person wishing to give notice under Article 16 of the Convention that
there has been a wrongful removal or retention of a child who is the subject
of proceedings relating to the merits of rights of custody shall file in the
Registry a notice to that effect, which shall contain a concise statement of
the nature of those proceedings and shall identify the relevant authority
before which they are pending.

(2) A notice given under paragraph (1) shall be verified on affidavit by the
person giving it and the affidavit shall be filed at the same time as the
notice.

(3) The Registrar, upon receipt of such notice and affidavit, shall as soon as
practicable, provide the relevant authority with copies thereof.

11. Authenticated copy of Court's order (O. 121, r. 11)

(1) A person who wishes to make an application under the Convention in a
Contracting State other than Hong Kong and who wishes to obtain from the Court
an authenticated copy of an order of the Court relating to the child in
respect of whom the application is to be made shall apply in writing in that
behalf to the Registrar.

(2) An application under paragraph (1) shall specify, so far as it is possible
to do so-

   (a)  the name and date of birth of the child;

   (b)  the date of the order and the short title of the proceedings in which
        the order was made;

   (c)  the nature of the application which is intended to be made,
        identifying the Contracting State in which the application is intended
        to be made;

   (d)  the relationship of the applicant to the child;

   (e)  the address of the applicant.

(3) On receipt of an application under this rule, the Registrar shall send by
post to the applicant at the address indicated in the application an
authenticated copy of the order or, if he is unable to locate the order, shall
notify the applicant accordingly.

(4) The authenticated copy of the order shall be an office copy sealed with
the Seal of the Court and endorsed with a certificate signed by the Registrar
certifying that the copy is a true copy of an order obtained in the Court and
that it is issued for the purposes of the Convention. (L.N. 119 of 1998)

"the Ordinance"

"application"

"decision"

"relevant authority"