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Hong Kong Law Reform Commission |
Children (Scotland) Act 1995, section 2(3) and (6):
“(3) Without prejudice to any court order, no person shall be entitled to remove a child habitually resident in Scotland from, or to retain any such child outwith, the United Kingdom without the consent of a person described in subsection (6) below.
(6) The description of a person referred to in subsection (3) above is a person (whether or not a parent of the child) who for the time being has and is exercising in relation to him a right mentioned in paragraph (a) or (c) of subsection (1) above; except that, where both the child’s parents are persons so described, the consent required for his removal or retention shall be that of them both.”
Recommendation 2 - Whereabouts/location
order
3. In Chapter 6, we recommend the enactment of a
power to order the disclosure of the whereabouts/location of the child along the
lines as section 36 of the Irish Child Abduction and Enforcement of Custody
Orders Act 1991 and section 67J of the Australian Family Law Act 1975. We also
recommend the adoption of a provision specifying who should be entitled to apply
for a whereabouts/location order, as in section 67K of the Australian Family Law
Act 1975. Each of these provisions is set out below.
Irish Child Abduction and Enforcement of Custody Orders Act 1991, section 36:
"(1) Where —
(a) in proceedings for the return of a child under Part II of this Act [relating to the Hague Convention] ...
there is not available to the Court adequate information as to the whereabouts of the child, the Court may order any person who, it has reason to believe, may have relevant information to disclose it to the Court.
(2) Any person who is the subject of an order under subsection (1) of this section may, notwithstanding production of the child, be ordered to disclose any information that is relevant to proceedings under Part II or III of this Act.
(3) Where —
(a) in proceedings in a Contracting State other than the State for the return of a child under the Hague Convention ...
or where such proceedings are about to be commenced, there is not available to the authorities in the Contracting State adequate information as to the whereabouts of the child, the Court may, on application made to it by any person, if it is satisfied that the applicant has an interest in the matter and that the child has been taken from or sent or kept out of the State without the consent of any of the persons having the right to determine the child's place of residence under the law of the State, order any person who, it has reason to believe, may have relevant information to disclose it to the Court.
(4) Any person who is the subject of an order under subsection (3) of this section may, notwithstanding production of the child in the Contracting State, be ordered to disclose any information that is relevant to proceedings in that state.
(5) A person shall not be excused from complying with any order under this section by reason that to do so may incriminate him or his spouse of an offence; but a statement or admission made in compliance with any such order shall not be admissible in evidence against either of them in proceedings for an offence other than perjury."
Australian Family Law Act 1975, section 67J:
“(1) a location order is an order made by a court requiring:
(a) a person to provide the Registrar of the court with information that the person has or obtains about the child’s location; or
(b) the Secretary of a Government Department, or an appropriate authority of a Commonwealth instrumentality, to provide the Registrar of the court with information about the child's location that is contained in or comes into the records of the Department or instrumentality.”
Australian Family Law Act 1975, section 67K:
“A location order in relation to a child may be applied for by:
(a) a person who has a residence order in relation to the child; or
(b) a person who has a contact order in relation to the child; or
(c) a person who has a specific issues order in relation to the child under which the person is responsible for the child's long-term or day-to-day care, welfare and development; or
(ca) a grandparent of the child, or
(d) any other person concerned with the care, welfare or development of the child.”
Recommendation
3 - Recovery orders
4. In Chapter 6, we recommend the
adoption of provisions similar to those in section 67Q of the Australian Family
Law Act 1975 relating to recovery orders. The text of the section is set out
below.
Australian Family Law Act 1975, section 67Q:
“A recovery order is an order made by a court doing all or any of the following:
(a) requiring the return of a child to:
(i) a parent of the child; or
(ii) a person who has a residence order or a contact order in relation to the child; or
(iii) a person who has a specific issues order in relation to the child under which the person is responsible for the child's long-term or day-to-day care, welfare and development;
(b) authorising or directing a person or persons, with such assistance as he or she requires or they require, and if necessary by force, to stop and search any vehicle, vessel or aircraft, and to enter and search any premises or place, for the purpose of finding a child;
(c) authorising or directing a person or persons, with such assistance as he or she requires or they require, and if necessary by force, to recover a child;
(d) authorising or directing a person to whom a child is returned, or who recovers a child, to deliver the child to:
(i) a parent of the child; or
(ii) a person who has a residence order or a contact order in relation to the child; or
(iii) a person who has a specific issues order in relation to the child under which the person is responsible for the child's long-term or day-to-day care, welfare and development; or;
(iv) some other person on behalf of a person described in subparagraph (i), (ii) or (iii);
(e) giving directions about the day-to-day care of a child until the child is returned or delivered to another person;
(f) prohibiting a person from again removing or taking possession of a child;
(g) authorising or directing a person to arrest, without warrant, a person who again removes or takes possession of a child.”
Recommendation
4 – Power to hold the child so that he can be returned to the custodial
parent or taken to a place of safety
5. In Chapter 6, we recommend
that the authorities should be given a power to detain a child whom they
reasonably suspect is about to be, or is being, removed from the jurisdiction in
breach of court orders, so that the child can be returned to the custodial
parent or taken to a place of safety until the court and/or the custodial parent
and/or the Social Welfare Department can be notified. Section 37 of the
Irish Child Abduction and Enforcement of Custody Orders Act 1991 is
proposed as a model for these provisions. The text of the section is set out
below.
Irish Child Abduction and Enforcement of Custody Orders Act 1991, section 37:
“(1) A [police officer] shall have power to detain a child who he reasonably suspects is about to be or is being removed from the State in breach of any of the following orders of a court in the State –
(a) an order regarding the custody of, or right of access to, the child (whether or not such an order contains an order prohibiting the removal of the child from the jurisdiction without leave of the court) or any order relating to the child made by the court in the exercise of its jurisdiction relating to wardship of a child ...
(c) an order made under section 12 of this Act [the court's powers to make interim orders] or an order made for return of the child under Part II of this Act [relating to the Hague Convention] ...
or while proceedings for one of those orders are pending or an application for one of those orders is about to be made.
(2) Where a child is detained under this section a [police officer] shall as soon as possible –
(a) return the child to the custody of a person (not being a health board) in favour of whom a court has made an order referred to in subsection (1) of this section unless the [officer] has reasonable grounds for believing that such person will act in breach of such order, or
(b) where the child has been in the care of a health board, return the child to that board, or
(c) in a case other than one to which paragraph (a) or (b) of this subsection applies, or where the [officer] is of the belief referred to in the said paragraph (a), deliver the child into the care of the health board for the area in which the child is for the time being.
(3) Where a [police officer] delivers into the care of a health board a child in accordance with subsection (2)(c) of this section, he shall as soon as possible inform or cause to be informed
(a) a parent of the child, or
(b) a person acting in loco parentis, or
(c) the Central Authority ... . of such delivery.
(4) Where any child is delivered into the care of a health board in accordance with subsection (2)(c) of this section the health board shall arrange suitable care and accommodation for the child, which may include placing the child in foster care or residential care, pending the determination of an application under subsection (5) of this section by the health board.
(5) Where a child is delivered into the care of a health board under subsection (2)(c) of this section the health board shall apply at the next sitting of the District Court or, in the event that the next sitting is not due to be held within three days of the date on which the child is delivered into the care of the health board, at a specially arranged sitting of the District Court held within the said three days, for directions as to the child's release from such care or otherwise in relation to the child's care and the District Court may make such order as it thinks proper in the circumstances regarding custody of and, where appropriate, access to, the child, taking into account any order referred to in subsection (1) of this section relating to the child and without prejudice to proceedings that may be pending or any application that is about to be made for one of those orders in relation to the child. ..."