International Parental Child Abduction

Chapter	*Page*

Preface	1

1. The problem of parental child abduction	4

The legal context	4
The social consequences of child abduction	6
The situation internationally	8
The situation in the Hong Kong SAR	11
The aim of this report	12

2. Preventing the abduction of a child from the Hong Kong SAR	13

Introduction	13
Custody of children generally in Hong Kong	14
Preventing the removal of the child from Hong Kong – civil law	16
Injunctions	16
Wardship	16
Seek and find order	17
Habeas corpus	18
Protection of Children and Juveniles Ordinance (Cap 213)	18
Preventing the removal of the child from Hong Kong – criminal law	20
Kidnapping	20
Child stealing	20
False imprisonment	21
Contempt of court orders	21
Powers to arrest or detain	21

3. Child abduction amongst Hague Convention countries	23

Introduction	23
Overview of the Hague Convention	23
Relevant provisions	23
Contracting states	24
The Central Authority	24
Legal aid	25
Cases to which Convention applies	25
Wrongful removal or retention in breach of rights of custody	25
Exceptions to mandatory return	26
Powers of the court under the Convention	28
Observations on the Convention	29

4. Abduction involving non-Convention countries	32

Abduction of children from the HKSAR to a non-Convention country	32
Abduction of children from a non-Convention country into the HKSAR	33

5. Legislation in other jurisdictions	35

Introduction	35
England and Wales	35
Child Abduction Act 1984	35
Prohibited steps order	36
Passports	36
Power to order disclosure of child's whereabouts	37
Recovery orders	38
Scotland	39
Ireland	40
Power to order disclosure	40
Police power to detain the child	41
Criminal law on abduction	43
Australia	43
Powers of entry, search and recovery	43
Location order	44
Recovery order	46
Taking a child overseas	47
Amendments to comply with the Hague Convention	47
Passports	48
Criminal law on abduction	48

6. Recommendations for reform	49

Introduction	49
Removal of the child from the jurisdiction	49
Disclosure of whereabouts/location orders	51
Recovery orders	54
Power to hold a child so that he can be returned to the custodial parent or taken to a place of safety	56
Surrender of passports	61
Notification of court order to the Immigration Department	62

7. Further observations	64

Introduction	64
Legal aid position	64
Stay of custody proceedings in Hong Kong	66
Confidentiality of Hague proceedings	67

8. Summary of recommendations	68

Annexures

Annex 1 - List of the respondents to the Consultation Paper on Guardianship and Custody	73

Annex 2 - Relevant legislative provisions from other jurisdictions	75

Hong Kong Law Reform Commission

THE LAW REFORM COMMISSION OF HONG KONG

REPORT

April 2002

THE LAW REFORM COMMISSION
OF HONG KONG

REPORT

CONTENTS

Chapter

Page

Hong Kong Law Reform Commission

THE LAW REFORM COMMISSION OF HONG KONG

REPORT

INTERNATIONAL PARENTAL CHILD ABDUCTION

April 2002

THE LAW REFORM COMMISSIONOF HONG KONGREPORT

CONTENTS

Chapter

Page

THE LAW REFORM COMMISSION
OF HONG KONG

REPORT