|
Hong Kong Law Reform Commission |
“The best chance of recovering the child is to prevent him from leaving the jurisdiction in the first place. To this end, the innocent party may invoke both the criminal and the civil law.” [57]
2.1 As
we have seen in the previous chapters, when custody battles ensue, there are now
international mechanisms in place to help locate and return children who are
unlawfully taken from their home jurisdictions by the other parent. These
mechanisms, such as the Hague Convention on the Civil Aspects of International
Child Abduction, are proving to be successful in a significant number of cases,
with the global rate of “judicial returns” (where the court
intervenes to order the return of the child) estimated to be over 30 per cent of
total cases, and voluntary returns at nearly 20 per
cent.[58]
2.2 From the
left-behind parent’s point of view however, it is far preferable to foil
the attempt to remove the child from the jurisdiction before it can take place,
although "prevention requires foresight and
anticipation”[59] and swift
action in taking any necessary
practical[60] and legal
steps.[61]
2.3 This chapter
begins with a brief overview of Hong Kong’s current law relating to child
custody and access. It then examines the various means available under the
civil and criminal law to prevent the abduction of a child from the Hong Kong
SAR or to seek his return once he has left the jurisdiction.
2.4 Hong Kong’s substantive law on the guardianship and
custody of children is contained in a variety of ordinances, including the
Guardianship of Minors Ordinance (Cap 13), the Matrimonial Proceedings and
Property Ordinance (Cap 192), the Matrimonial Causes Ordinance (Cap 179) and the
Separation and Maintenance Orders Ordinance (Cap 16). The Guardianship of
Minors Ordinance, which governs court proceedings relating to the custody and
upbringing of children,[62] puts
into statutory form the well-established principle that, in all proceedings
concerning children in the HKSAR, the welfare of the child is to be the first
and paramount consideration of the
courts.[63]
2.5 All of the
duties, rights and authority that a parent has in respect of his or her child
are comprised in the legal status of "guardianship." When a child’s
parents are married, they both share guardianship of the child and so have equal
parental rights and authority.[64]
When the father is not married to the mother, he is not a guardian unless he has
acquired parental rights and authority over the child by court
order.[65]
2.6 When a
marriage breaks down, the orders available to the court in relation to the
arrangements for children include custody orders and access
orders.[66] The most common custody
order in Hong Kong is for “sole custody.”
"The effect of the order is to transfer most, if not all, parental rights and authority to the custodial parent exclusively. The non-custodial parent, however, retains rights qua parent (or guardian), e.g., the right to succeed on the child's intestacy, the right as a guardian on the death of the other parent, the right to appoint a testamentary guardian, and to veto adoption."[67]
2.7 Under
a sole custody order, the child lives with the 'custodial parent' who has the
duty to ensure, protect and promote the best interests of the child, as well as
the right to make the major decisions concerning his upbringing. These
decisions would include those relating to his education, religion and major
medical
treatment.[68]
2.8 Other
types of custody orders include "split orders," where custody of the child is
given to one parent and the daily care and control is given to the other, and
joint custody orders, where custody is given to both parents but the daily care
and control is given to just one of them. This latter type of custody order
"symbolises divorced or separated parents playing a joint role in the
upbringing of the child",[69] as
both parents remain entitled to decide important matters affecting him. It has
been noted that these two types of custody order are, at the present time, rare
in Hong
Kong.[70]
2.9 Generally, the
non-custodial parent is granted "access," which means the right to maintain
contact with the child. Different types of access are possible, depending on
the particular circumstances of the
case.[71]
"An order for reasonable access leaves the parties to agree on how access is to be arranged. The court may order staying access, that is, the parent with access can have the child staying with him or her during the weekends or holidays. Where the parties cannot agree on access arrangements, an order for defined access can be made, detailing access arrangements. Sometimes the court may order that access be supervised (e.g. by the custodial parent or a third party, such as a social welfare officer) or impose conditions on access." [72]
2.10 Custody
orders or access orders continue to have effect unless a court discharges
them.[73]
2.11 A Hong Kong custody or access order normally provides that a
child should not be removed from the jurisdiction unless the consent of the
other parent has been obtained, or a written undertaking given to bring the
child back to the
territory.[74]
2.12 Order
90, rule 5(3) of the Rules of the District Court (Cap 336, subsidiary
legislation) provides that an application for an injunction may be made ex
parte by the parent of a child to restrain the other parent or any other
person from removing the child from Hong Kong or out of the applicant's custody,
care or
control.[75]
2.13 Rule 94(2)
of the Matrimonial Causes Rules (Cap 179, subsidiary legislation) also allows
for an ex parte application to be made to the court to prevent removal of
a child, as follows:
“(2) A petitioner or respondent ... may apply at any time for an order prohibiting the removal of any child of the family under 18 out of Hong Kong or out of the custody, care or control of any person named in the application without the leave of the court except on such terms as may be specified in the order.”
2.14 A
significant limitation of the injunction remedy, however, is that although it
may be granted to an applicant ex parte, it must still be served on the
respondent to be effective. This may be difficult to achieve if the respondent
is actively avoiding receipt of
service.[76]
2.15 In Hong Kong, an order of wardship can be sought from the Court
of First Instance of the High
Court.[77] Wardship proceedings are
unique in civil proceedings in that they are not concerned with the resolution
of rights between litigants[78] but
in doing whatever is necessary for the welfare of the child. In theory there is
no limit on the court’s power to make orders in this
respect.[79] Consequently, wardship
has been described as “the pre-eminent jurisdiction for dealing with
abducted
children.”[80]
2.16 In
general, wardship operates in the following way:
“Once warded, the ward comes under the guardianship of the court (the whole bundle of rights), and a ring of protection is immediately thrown around the ward. So long as the minor remains a ward, no major decisions affecting the child can be taken without the consent of the judge.”[81]
2.17 The
unique advantage of wardship in 'time of the essence' situations like parental
child abduction - is that the child becomes a ward of the court immediately upon
the making of the application. This occurs when the summons is issued to ward
the child.[82] Another advantage of
wardship is that it can be used to prevent the child from being removed from the
jurisdiction until the consent of the court has been obtained, as to do so would
constitute contempt of
court.[83]
2.18 Wardship has
also been used to secure the return of a child already
abducted,[84] and to provide a
remedy for non-parents who would otherwise have no legal standing in relation to
an abducted child.[85]
2.19 Also within the context of wardship, the English Court of
Appeal, in Re B (Child Abduction: Wardship: Power to
detain)[86] noted that
the court was entitled to make a 'seek and find order' under its inherent
jurisdiction. The court stated that a seek and find order, supported by a bench
warrant, was a useful method of bringing to court a parent, other relative or
friend who was believed to have the child or know of his whereabouts and to be
party to his removal or retention. The court added, however, that once the
person had appeared before the judge, the purpose of the bench warrant was
effected. Consequently, unless the person was in contempt of court, there was
no power to continue to detain him so as to provide an incentive for someone
under his control to disclose the whereabouts of the child, or to compel him or
his associates to produce the
child.[87]
2.20 The legislation dealing with writs of habeus corpus is contained
in section 22A of the High Court Ordinance (Cap 4). A writ of habeus corpus can
be applied for where it is alleged that a person is being unlawfully detained.
The Court of First Instance can then order that the body of the person be
produced and the grounds for his detention be certified by the person detaining
him. If the person to whom the order is directed fails to comply or appear
before the court, then the court may order his arrest and the police will then
bring him to court. As habeus corpus has generally been invoked in cases of
persons unlawfully detained by the police or in a prison, it does not appear to
be an appropriate remedy to bring a parent and child before the
court.
2.21 The Protection of Children and Juveniles Ordinance (Cap 213)
provides civil and criminal remedies for the protection of children. Under
section 26 of the Ordinance, it is an offence, punishable by two years
imprisonment, for any person to take a child or juvenile unlawfully out of the
possession of, and against the will of, the parent or
guardian.[88]
2.22 Section
35 of the Ordinance, which deals with protecting children and juveniles from
moral or physical danger, gives power to the Director of Social Welfare to make
an order regarding control or custody where the child is about to be taken out
of Hong Kong by force, threats, false pretences and other forms of coercion.
Historically, this section was designed to prevent prostitution, but it does
give power to the Director to intervene in an emergency case if a child is being
kidnapped and the police are hampered by their lack of
powers.
2.23 Section 44(1) of the Ordinance gives a power of entry and
search to the Director “for the purpose of ascertaining whether there
is therein any child or juvenile who is or may be liable to be dealt with under
the provisions of this Ordinance.” The Director is also empowered
under section 44 “to remove any such child or juvenile to a place of
refuge, a hospital or such other place as he may consider
appropriate.” He must first have secured a warrant from a magistrate.
Within 48 hours, the child must be brought before the Juvenile court under
section 34(1) or
34C.[89]
2.24 These
provisions may be useful where a custodial parent is trying to trace a child who
is suspected of having been abducted by the non-custodial parent. The
difficulty is that the Director cannot exercise these powers unless he would
have grounds for taking care and protection proceedings or other
proceedings.
2.25 Similarly, another related provision is section 34E of
the Ordinance, which allows a police
officer[90] to detain a child who is
suspected of being "in need of care or
protection"[91] and to deliver him
to a "place of refuge"[92] or to
such other place as he may consider appropriate. A child is deemed to be in
need of care or protection if: he has been or is being assaulted, ill-treated,
neglected or sexually abused; or his health, development or welfare is being
neglected or avoidably impaired; or he is beyond control to the extent that harm
may be caused to himself or others.
2.26 Where the child's health,
development or welfare is at risk (which is the circumstance likely to be
closest to the parental child abduction situation), the police may only act if
the child has already been subject to recent investigation by the Director of
Social Welfare (as to whether he may be in need of care or protection) and
Social Welfare has called for an assessment of the child to be carried
out:[93]
2.27 Theoretically, at common law a parent can be found guilty of
kidnapping his own child. The House of Lords in R v
D[94] held that the common law
offence of kidnapping in relation to children under 14 remained unaffected by
the statutory offence of child stealing, so that where the ingredients of the
offence, namely the taking or carrying away of one person by another by force or
fraud without the consent of that other person and without lawful excuse, were
proved, an offence was committed. However, their Lordships did not want to
encourage prosecution for this offence:
“[I]n general, it is desirable, as a matter of policy, that the conduct of such parents [who snatch their own children in defiance of a court order relating to their custody or care and control] should be dealt with as a contempt of court, rather than as the subject matter of a criminal prosecution. The latter method of dealing with the problem should, in my view, only be used in exceptional cases, where the conduct of the parent concerned is so bad that an ordinary right-thinking person would immediately and without hesitation regard it as criminal in nature.”[95]
2.28 We
do not consider that prosecuting parents for the common law offence of
kidnapping would be useful, except in the most blatant
cases.[96]
2.29 If a child, under 14 years of age, is taken away from his parent
or guardian, a person can be charged with child stealing contrary to section 56
of the Offences against the Person Act 1861. This has been incorporated into
Hong Kong law by section 43 of the Offences against the Person Ordinance (Cap
212). As it is a serious offence, a police officer has the power to arrest any
person whom he suspects of committing this offence.
2.30 However, the
English Court of Appeal explained in R v
D,[97] that Parliament had
intended in 1861 that neither a father nor a mother should be prosecuted for
child stealing, as it had inserted a proviso giving a defence to a person
claiming bona fide possession of the child.
2.31 Section 126 of
the Crimes Ordinance (Cap 200) provides for an offence of abduction of a girl
under 16 against the will of her parent or guardian. The likely purpose of this
provision was to stop girls from being kidnapped and forced into prostitution.
It is therefore apparent that prosecution either for this offence or for child
stealing would not be useful or appropriate ways to deal with cases of child
abduction arising from parental disputes.
2.32 A prosecution for false imprisonment was successfully brought in
the R v D[98] case. This
offence is committed when a person unlawfully and intentionally or recklessly
restrains the freedom of movement of another from a particular place. If the
child is voluntarily accompanying the abducting parent however, as is likely to
be the case in the majority of parental child abduction situations, there may be
difficulties in sustaining a prosecution even though the removal of the child
may have been unlawful under custody orders or under the Hague
Convention.
2.33 The only remedy for breach of a custody order or an access order
is contempt of court.[99] (Breaches
of orders made by the court pursuant to its wardship jurisdiction also
constitute contempt of court.) Contempt is only useful if the offender is still
within the jurisdiction and the original order which he breached was served on
him prior to the making of the application for committal for contempt.
Unfortunately, by the time all this is done, he may have already left the
jurisdiction with the child.
2.34 The police cannot stop or detain a person unless he acts in a
suspicious manner and is suspected of having committed an offence or has
actually committed an
offence.[100] The police have no
power to enforce an injunction as it is a civil remedy; however, they may have a
power of arrest if a breach of the peace is committed when an ex parte
order of the court, such as an injunction, is being served on the respondent.
The police also have a power of arrest if a person has already been committed
for contempt of court. Any person who breaches an injunction may be committed
for contempt and a person who has knowledge of an injunction and assists in its
breach may also be guilty of
contempt.[101]
2.35 There
does not seem to be a limit on the term of imprisonment that the District Court
and the Court of First Instance may impose for contempt, though section 21A of
the High Court Ordinance (Cap 4) provides for committal for a maximum of three
months for enforcement of a civil claim for the payment of money.
2.36 The Immigration Department can only prevent a child being removed
from Hong Kong when they have a sealed copy of the order prohibiting removal in
their hands. They cannot stop someone leaving Hong Kong if no order prohibiting
removal has been made, provided he has a valid travel
document.
2.37 There are powers under section 26 of the Immigration
Ordinance (Cap 115) for a chief immigration officer to detain a person for not
more than 48 hours if he is satisfied that inquiries are necessary for the
purposes of the Immigration Ordinance, and that the person may abscond if not
detained. However, this is not a general power to detain for inquiries.
[57] NV Lowe and G Douglas, Bromley's Family Law (9th ed, 1998, Butterworths) at 479.
[58] See Prof N Lowe, S Armstrong and A Mathias, “A Statistical Analysis of Applications made in 1999 under the Hague Convention of 25 October 1980 on the Civil Aspects of Child Abduction,” (2001) Preliminary Document No 3 of March 2001 for the attention of the Special Commission, Hague Conference on Private International Law, at 11. In the analysis, the precise figure for judicial returns for 1999 was given as 32.2% (ie, 239 out of a total of 743 cases dealt with under the Hague Convention in that year). The figure given for voluntary returns was a further 18% (ie, 134 cases out of the 743 total).
[59] Dr Athena Liu, Family Law for the Hong Kong SAR (1999, HKU Press) at 333.
[60] In terms of practical preventative measures which can be taken, the US Department of State Bureau of Consular Affairs has included the following advice in its publication, International Parental Child Abduction (1996, 10th ed) at 1-2: "Be alert to the possibility [of child abduction] and be prepared - keep a list of the other parent's relatives, friends, and business associates both here and abroad. Keep a record of important information on the other parent including these numbers: passport, social security, bank account, driver's license, and auto license. In addition, keep a written description of your child, including hair and eye color, height, weight, and any special physical characteristics. Take color photographs of your child every six months ... this information could be vital in locating your child."
[61] For further information on practical and legal measures which can be taken in the context of Hong Kong, see (from mid-2002) the website on parental child abduction included on the Department of Justice Homepage at <www.info.gov.hk/justice/>.
[62] The Guardianship of Minors Ordinance (Cap 13) (“GMO”) also governs the provision of maintenance for children, the custody rights of fathers in relation to illegitimate children (Part V, GMO) and the administration of property owned by or held in trust for children (Parts III and IV, GMO).
[63] Section 3, GMO.
[64] Section 3, GMO. See also Dr Liu, above, at 275.
[65] Section 3, GMO.
[66] For the relevant statutory provisions, see especially: section 10, GMO; section 19, Matrimonial Proceedings and Property Ordinance (Cap 192); and section 5, Separation and Maintenance Orders Ordinance (Cap 16).
[67] See Dr Liu, above, at 276.
[68] Idem.
[69] Dr Liu, above, at 279.
[70] Dr Liu, above, at 278-279.
[71] Dr Liu, above, at 276.
[72] Dr Liu, above, at 276-277.
[73] For a more detailed analysis of the types of orders available in Hong Kong, see Dr Liu, above, at 275-288.
[74] E Francis and S Warren, Divorce and Separation in Hong Kong (1995, OUP) at 88.
[75] See Chiu Kwai-fun v Lam Hing Keung (1985) High Court Misc Proceedings No 968 of 1985. The rule applies to proceedings under the GMO (Cap 13) and the Separation and Maintenance Orders Ordinance (Cap 16). See also the English cases: B v B (Injunction: Restraint on Leaving Jurisdiction) [1997] 2 FLR 148, at 153; and Re A-K (Minors) (Foreign Passport: Jurisdiction) [1997] 2 FLR 569, at 572 (CA), where the scope of the inherent jurisdiction of the court in potential abduction cases is discussed.
[76] See, for example, the comments of Waung J in S v S [1998] 2 HKC 316, at 325-326.
[77] Pursuant to section 26, High Court Ordinance (Cap 4). See also Order 90, Rules of the High Court (Cap 4, subsidiary legislation).
[78] Dr Liu, above, at 324.
[79] See Re B (Child Abduction: Wardship: Power to Detain) [1994] 2 FLR 479, at 483 (CA); Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64, at 81; Re X (A Minor) (Wardship Jurisdiction) [1975] Fam 47, at 61. See also Dr Liu, above, at 326.
[80] Lowe & Douglas, above, at 483.
[81] Dr Liu, above, at 324.
[82] Idem.
[83] Re J (1913) 29 TLR 456.
[84] See Lee Wai-chu v Lee Yim-chuen (1984) Misc Proceedings No 2678 of 1983; Chiu Kwai-fun v Lam Hing-keung (1985) Misc Proceedings No 968 of 1985. For a detailed examination of the wardship jurisdiction in the HKSAR, see Dr Liu, above, at 321-332.
[85] See Trance v Walli (1988) High Ct Misc Proceedings No 905 of 1988 and Re Mark Leung (1985) High Ct Misc Proceedings No 142 of 1985, both referred to in Dr Liu, above, at 327.
[86] [1994] 2 FLR 479.
[87] Ibid, per Butler Sloss LJ, at 482-485.
[88] This section originated in section 55 of the (UK) Offences against the Person Act 1861.
[89] Section 44(4A).
[90] Of the rank of station sergeant or above, or another person authorised in writing by the Director of Social Welfare: see section 34E(1) of the Protection of Children and Juveniles Ordinance (Cap 213) ("PCJO").
[91] Pursuant to section 34(2) PCJO.
[92] The places of refuge designated for the purposes of the PCJO are listed in the schedule to the Protection of Children and Juveniles (Place of Refuge) Order (Cap 213, subsidiary legislation). Section 34E(5) provides that where a child is detained in a place of refuge, the person in charge has "the like control over the child or juvenile as the parents and shall be responsible for his maintenance."
A child may be detained in a place of refuge for up to 48 hours until he can be brought before the juvenile court: section 34E(2) and 34E(3) PCJO. The court can order that the detention be extended for up to 28 days in the first instance while further inquiries are made about the child. (Additional extensions of the detention may also be granted, but the aggregate must not exceed 56 days continuous detention.) See section 34E(4) PCJO.
[93] See sections 34E(1A) and 45A PCJO. In such cases, the police may act where: (a) the child has, within the preceding two weeks been assessed, or (b) a notice has been served within the preceding month calling for the child to be brought for an assessment but the notice has not been complied with, or (c) the Director of Social Welfare is unable to ascertain the identity or whereabouts of any person on whom the notice calling for an assessment can be served.
[94] [1984] 1 AC 778.
[95] Ibid, at 806, per Lord Brandon.
[96] Also, there may be policy considerations if a prosecution were to be initiated against a person temporarily staying in Hong Kong, as the forum of dispute between the parents should preferably be their country of habitual residence.
[97] Ibid, at 790.
[98] [1984] 1 AC 778. (See above.)
[99] For the rules on committal for contempt, see Order 52, Rules of the High Court (Cap 4, subsidiary legislation). In addition (as noted above in relation to the seek and find order) the courts have ruled that they have no power to detain a parent so as to provide an incentive for someone under his control to reveal the whereabouts of a child, or to compel him or his associates to produce the child: see Re B (Child Abduction: Wardship: Power to detain) [1994] 2 FLR 479.
[100] Section 54 of the Police Force Ordinance (Cap 232).
[101] Seaward v Paterson [1897] 1 Ch 545.