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Hong Kong Law Reform Commission |
3.1 As we saw in Chapter 1, it appears that global factors, such
as the dramatic rise in divorce rates, the increase in marriages involving
parties from different cultures and countries, and the freedom of movement and
speed of modern travel, have all contributed to the growing number of
international child abduction cases being reported each year. As we have also
seen, the Hague Convention on the Civil Aspects of Child Abduction (“the
Hague Convention”) was introduced in 1980 as a world-wide initiative to
combat this
problem.[102]
3.2 The aim
of the Hague Convention is to provide a uniform international machinery for
tracing abducted children, securing their prompt and safe return and for
organising or securing access arrangements for otherwise ‘left-behind'
parents.[103] This chapter
examines the scope and operation of the Convention.
3.3 The Hague Convention was adopted by the Hague Conference on
Private International Law on 25 October 1980. It was subsequently implemented
in Hong Kong by the Child Abduction and Custody Ordinance (Cap 512) which came
into effect on 1 September
1997.[104]
3.4 The Convention is currently in force in the Hong Kong SAR and 71
other
jurisdictions.[105]
3.5 A contracting state must designate a central authority for the
purposes of the Hague
Convention[106] to take all
appropriate measures to obtain the voluntary return of a child abducted from or
to that state.[107] In Hong Kong,
the Central Authority is the Secretary for
Justice.[108] If the Central
Authority fails to reach an amicable settlement for the return of the child, it
must initiate or facilitate the issuing of proceedings to obtain an order for
the return of the child.[109]
Article 11 of the Convention gives the right to the Central Authority or the
applicant to request reasons for delay if the judicial or administrative
authority of the contracting state has not reached a decision within six
weeks.
3.6 Article 21 of the Convention puts an obligation on the Central
Authority to promote “the peaceful enjoyment of access rights and the
fulfilment of any conditions to which the exercise of those rights may be
subject.” The Central Authority also has a duty to take such steps to
remove, as far as possible, all obstacles to the exercise of such rights. An
application for access may be presented to the Central Authority in the same way
as an application for the return of a child. The Hague Convention does not
however prevent an application being made directly to the court rather than to
the Central
Authority.[110]
3.7 Article 7 provides that central authorities shall co-operate with
each other to secure the prompt return of the child. Article 7(g) provides that
central authorities shall take all appropriate measures “where the
circumstances so require, to provide or facilitate ... legal aid and advice,
including the participation of legal counsel and advisers”. Article
25 provides that persons from contracting states shall be entitled to legal aid
and advice in any other contracting state on the same conditions as if they
themselves were nationals of and habitually resident in that state. However,
Hong Kong has entered a reservation, as it is entitled to do under Article
26.3,[111] so that the costs are
not obliged to be borne by the Secretary for
Justice[112] “or any
other authority in Hong Kong except so far as they fall to be so borne by virtue
of the grant of legal aid under the Legal Aid Ordinance (Cap
91)”.[113]
3.8 As noted above, the Hague Convention aims to ensure that a child
who has been abducted to a contracting state will be returned safely and
promptly to the country of his habitual
residence.[114]
3.9 The
removal or retention of the child is wrongful where it is in breach of custody
rights arising in the other contracting state by operation of law or by reason
of an agreement.[115] The rights
of custody are not limited to the parent with physical custody, but include the
right of a parent who does not have custody to give or refuse consent to the
removal of the child from the
jurisdiction.[116] Custody rights
do not belong exclusively to parents, but can also be attributed to an
institution, or any body, either jointly or
alone.[117] Rights of access
include the right to take a child for a limited period of time to a place other
than the child’s habitual
residence.[118]
3.10 Habitual residence is not defined in the Hague
Convention.[119] It is to be
decided as a matter of fact by reference to the relevant evidence of the
particular case.[120] In order to
establish habitual residence, the residence must be "for a settled purpose
continued for an appreciable
time."[121] The habitual
residence of young children whose parents are living together is the same as the
habitual residence of the parents themselves, and neither parent can change this
without the consent of the other parent or an order of the
court.[122] However, a child
whose parent has sole legal custody will have the same habitual residence as
that parent.[123]
3.11 The Hague Convention is not limited to wrongful removal; it
extends to cover wrongful
retention,[124] as where, for
example, a child is not returned to the custodial parent by the parent
exercising rights of access.
3.12 Although the general approach of the Hague Convention is to
require the summary return of the child to his place of habitual residence,
there are a number of grounds where refusal to return the child may be
justified. These include where:
(1) the person claiming return of the child was not actually exercising their custody rights, or had consented to or subsequently acquiesced in the child's removal or retention,[125]
(2) there is a grave risk that the return of the child would expose him to physical or psychological harm or otherwise place the child in an intolerable situation,[126] and
(3) if the child objects to being returned and has reached an age and a degree of maturity at which it is appropriate to take account of his views.[127]
3.13 The court is not bound to order the child's return if, at the
time of the child's removal or retention, the 'wronged parent' had consented to,
or subsequently acquiesced in, his removal or
retention.[128] The crucial issue
is the actual state of mind of the wronged parent at the relevant time, which
may be indicated by his contemporaneous words and
actions.[129] The onus of proving
consent or acquiescence is on the abducting
parent.[130]
3.14 The court may refuse to order the child's return where it is
established that there is a grave risk that his return would expose him to
physical or psychological harm, or otherwise place him in an intolerable
position.[131] It appears that in
most Hague Convention countries, these words are taken literally and there is a
very high threshold before this defence will be
accepted.[132] An analysis of
practice for the Special Commission of the Hague Conference reported:
“allegations of misbehaviour on the part of the parent left behind, such as alcoholism, cruel behaviour or drug use, have been swept aside and left to be considered by the court in the state of the child’s habitual residence after his or her return. This implies substantial trust in the process of the courts in that country and in the co-operation between the central authorities of the two countries, who can also help to ensure the child’s safety during and following the return”.[133]
3.15 In a case where a child objects to being returned, the court may
refuse to order his return if the child has attained an age and degree of
maturity at which it is appropriate to take account of his
views.[134] However, "the
objection imports a strength of feeling going far beyond the usual ascertainment
of the wishes or preference of a child in a custody
dispute"[135] and is not
decisive. It has also been noted that as the purpose of the Hague Convention is
to ensure the speedy return of children to the country from which they were
wrongfully removed, "the discretion under this head must be used only in
exceptional
circumstances."[136]
3.16 If an application for the return of a child is made after one
year, return may be refused on the grounds that the child is now settled in his
new environment.[137] It should
be noted that the court orders the return of the child to the country concerned,
not to the custody of the
applicant.[138]
3.17 As noted above, the Hague Convention is given the force of
law in Hong Kong by virtue of the Child Abduction and Custody Ordinance (Cap
512). There are also procedural rules relating to the Ordinance laid down in
Order 121 of the Rules of the High Court (Cap 4, subsidiary
legislation).
3.18 Section 7 of the Ordinance confers powers on the
court to give interim directions in Hague Convention cases. The section
states:
"Where an application has been made to the Court of First Instance under the Convention, the Court of First Instance may, at any time before the application is determined, give any interim direction as it thinks fit for the purpose of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application."
3.19 The
English equivalent to this provision, section 5 of the Child Abduction and
Custody Act 1985, has been interpreted as granting wide powers to the court,
including a power to restrain a party from leaving the jurisdiction and a power
to require the surrender of
passports.[139]
3.20 A Special Commission reviewed the operation of the Hague
Convention in January 1993. The Commonwealth Secretariat and 44 countries were
represented. It concluded that even though the Hague Convention was working
well, delay in legal proceedings was causing problems. The absence of legal
aid, together with high legal fees, caused further
difficulty.[140]
3.21 A
previous review meeting in 1989 encouraged states:
“contemplating becoming parties to the convention ... to organise their legal and procedural structures in such a way as to ensure the effective operation of the convention and to give their central authorities adequate powers to play a dynamic role, as well as the qualified personnel and resources, including modern means of communication, needed in order expeditiously to handle requests for return of children or for access.”[141]
3.22 McClean
suggested that the very existence of the Hague Convention increases the number
of voluntary returns.[142] For
example, the United States reported that in the first three years of the
implementation of the Convention there, there was a significant rate of
voluntary returns equal to almost 60% of the number of court ordered returns for
incoming applications, and nearly 33% of the court ordered returns for outgoing
applications.
3.23 It was noted that a balance had to be struck between
the principle of giving respect to the comity of nations, by enforcing custody
orders or rights, and the local court’s views on the welfare of the child.
Article 19 provides that a decision relating to the return of the child is not
to be taken as a determination on the merits of any custody
issue.
3.24 It was also noted that there has been a failure in the past
by the common law courts to develop a consistent approach to the handling of
international child abduction cases. One of the reasons for this is that such
cases are “fact-sensitive”. It is therefore difficult to elicit
general principles from these
cases.[143]
3.25 Another
limitation is that the Hague Convention only applies to wrongful removal or
retention occurring after its entry into force in a contracting state. Thus in
Hong Kong's case, wrongful removals or retentions occurring prior to 1 September
1997 do not come within the protection of the Convention.
3.26 McClean
observed that there are some qualifications to the primacy of the welfare
principle:
(1) If two parents who are separated or divorced live in different continents, then the reality is that the “custody decision must often mean complete and final loss of the child to one of the parties, for access may be impracticable and wholly unsatisfactory”,[144]
(2) the welfare principle is not some international standard but instead a set of values of a particular legal system. Appealing to the welfare principle may encourage a court to deal with the merits of the case instead of accepting the foreign court’s decision,[145] and
(3) there is a dilemma for the court. If the court is going to fully examine all the factors contained in the welfare principle,[146] it will have to gather evidence from the country of habitual residence, whose social work agencies may not have the necessary resources to investigate. Thus there will be delay which may prejudice the welfare of the child.
3.27 There
was a third meeting of the Special Commission in March 1997 to review the
operation of the Hague Convention. The Commission noted that the majority of
the cases under the Hague Convention were children removed by their mothers from
their own country of habitual residence. Indications were that this was based
on allegations of hardship and domestic violence by the father of the child. In
response, the contracting states and their Central Authorities expressed a
general willingness to accept responsibility for the safety of children returned
under the convention and “to increase co-operation between courts and
Central Authorities to ensure the protection of returning children and
parents”.[147]
3.28 The
Commission noted the increase in shared arrangements for children so that there
may be no difference in reality between a joint custody order and liberal access
arrangements. Yet the former would lead to a remedy for breach of rights of
custody and the latter would not, except as a breach of access.
3.29 The
most recent meeting of the Special Commission took place in March
2001.[148] It highlighted the key
role of the central authorities in making the Convention function, and urged
that they be given a mandate that is sufficiently broad, and the qualified
personnel and resources (including modern means of communication) to act
dynamically and to carry out their functions
effectively.[149] There should be
ready exchange of information between contracting states to assist with locating
abducted children, and to assist generally with central authorities carrying out
their roles. The effecting of voluntary returns should be encouraged as far as
possible.[150] The obligation on
contracting states to process Hague Convention cases as expeditiously as
possible, and to incorporate appropriate rules and judicial practices in their
own court systems to facilitate this, was emphasised. Also highlighted was the
need to adopt a consistent approach to judicial interpretation of the key
concepts used in the
Convention.[151]
[102] Another 1980 convention, the European Convention on the Recognition and Enforcement of Decisions concerning Custody of Children and on the Restoration of Custody of Children (more commonly called the Luxembourg Convention) was prepared under the auspices of the Council of Europe on 20 May 1980. Under this convention, custody decisions which are enforceable in the state of origin, are enforceable in the other contracting states.
[103] Dr Athena Liu, Family Law for the Hong Kong SAR (1999, HKU Press) at 334.
[104] Pursuant to the Child Abduction and Custody (Parties to Convention) Order, made under section 4 of the Ordinance (Cap 512): see LN 36 of 1998. See further, Chapter 1, above, footnote 18.
[105] See Chapter 1, para 1.5, above (especially footnote 17). See also for further information the website of the Hague Conference on Private International Law, “Hague Conventions: Signatures, Ratifications and Accessions,” at <www.hcch.net/e/status/statmtrx.html>.
[106] Article 6 of the Convention.
[107] Article 10 of the Convention.
[108] In fact, the functions of the Central Authority are discharged by the Civil Division of the Department of Justice of the Hong Kong SAR Government. For further information on parental child abduction and the HKSAR, see (from mid-2002) the website on this topic included on the Department of Justice Homepage at <www.info.gov.hk/justice/>.
[109] Article 7(f) of the Convention.
[110] Article 29.
[111] Section 13 of the Child Abduction and Custody Ordinance (Cap 512).
[112] It is usually the Central Authority that represents the innocent party in the proceedings, though Article 29 of the Convention allows any person, institution or body to apply directly to court.
[113] This would mean that the Secretary for Justice is entitled to claim the costs of representing the applicant from him unless he fell within the means and merits test of the Hong Kong Legal Aid Scheme. For discussion of proposals to improve legal aid availability in Hong Kong for Hague applicants, see Chapter 7, below.
[114] For a recent Hong Kong authority on the meaning of "habitual residence," see Re N (A Child) [2001] 2 HKLRD 377, per Hartmann J.
[115] Article 3 of the Convention. An example would be a separation agreement or other similar agreement.
[116] This is the effect of Article 5. For example, If there is a custody order in favour of the mother and it includes an order not to remove the child from the jurisdiction of habitual residence without the consent of the father or the court, then if this order is breached by the mother, the father can use the Hague Convention to seek the return of the child.
[117] This would be where there was a care or protection order in favour of the equivalent to the Director of Social Welfare.
[118] Article 5(b) of the Convention.
[119] Hartmann J elaborated on the reasons for this in his judgment in Re N (A Child), above, at 385-6.
[120] Re N (A Child), above, at 387.
[121] Dr Liu, above, at 336.
[122] Re N (A Child), above, at 386.
[123] Dr Liu, above, at 337.
[124] Article 3.
[125] Article 13(a). This can be active or passive. The latter occurs when there is such a lapse of time as to amount to acquiescence.
[126] Article 13(b).
[127] Article 13.
[128] Dr Liu, above, at 339.
[129] Idem. For an example of where acquiescence was proven, see AZ (A minor: Abduction: Acquiescence) [1993] 1 FLR 682.
[130] Dr Liu, above, at 339.
[131] Ibid, at 339-340.
[132] A Hutchinson, R Roberts & H Setright, International Parental Child Abduction (1998, Family Law) at 5. Referring to the Hong Kong case of S v S [1998] 2 HKC 316, Dr Liu, above, at 340, notes that, "The risk of physical or psychological harm must be substantial and actual." See also the cases of N v N (Abduction: Article 13 defence) [1995] 1 FLR 107 (allegations of sexual abuse) and Re HB (Abduction: Children's objections) [1997] 1 FLR 392 (allegations of ill-treatment) where, despite the allegations made, the children were ordered to be returned. Compare the recent Hong Kong case of D v G [2002] 1 HKLRD 52 (CA).
[133] McClean, "Progress in dealing with International Child Abduction," 18th Commonwealth Law Ministers Meeting Papers (Nov 1993), at para 10.
[134] Dr Liu, above, at 340.
[135] Ibid, at 341, referring to the judgment in Re R (A minor: Abduction) [1992] 1 FLR 105.
[136] Idem.
[137] Article 12.
[138] Re A (A Minor)(abduction) [1988] 1 FLR 365.
[139] See B v B (Injunction: Restraint on Leaving Jurisdiction) [1997] 3 All ER 258.
[140] McClean (1993), above, at para 14. The third Special Commission in 1997 (see below) would note that the United States had developed an International Child Abduction Attorney Network (ICAAN) which offers pro bono representation for applications under the Hague Convention there.
[141] Ibid, at para 15.
[142] Idem.
[143] McClean, “International Abduction of Children - towards an effective legal response,” Conference Papers of the Ninth Commonwealth Law Conference (1990) at 301.
[144] McClean (1990), above, at 302.
[145] Idem.
[146] McClean (1990), above, is referring to the list of factors appearing in section 3 of the English Children Act 1989.
[147] Report on the Third Meeting of the Special Commission to discuss the operation of the Hague Convention on the Civil Aspects of International Child Abduction, Hague, 17 - 21 March 1997.
[148] See, Conclusions and Recommendations of the Fourth Meeting of the Special Commission to Review the Operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (22 - 28 March 2001) (April 2001) Permanent Bureau of the Hague Conference of Private International Law (available at <www.hcch.net/>).
[149] Ibid, at 4.
[150] Ibid, at 5.
[151] Ibid, at 9-10.