|
Hong Kong Law Reform Commission |
4.1 If a child is removed from Hong Kong to a country which is
not subject to the Hague Convention, “the chances of recovering the
child may be slim.”[152]
Unless the parent who has abducted the child returns him voluntarily, the only
legal means to recover the child would be to initiate legal proceedings in the
jurisdiction to which the child has been
taken.[153] This would need to be
done as quickly as possible, so that the abducting parent does not gain the
advantage of the child establishing new roots in the foreign jurisdiction before
the case is decided upon by that jurisdiction’s
courts.[154] Where there is
delay, the court will most likely disregard the abduction and any foreign
custody orders on the grounds that the welfare of the child is best served by
him staying in the (new) jurisdiction.
4.2 From a practical point of
view, the left-behind parent in Hong Kong needs to obtain legal advice as soon
as possible regarding the laws and practices of the country
concerned.[155] In particular,
they would need to establish what their parental rights are under the law of the
foreign jurisdiction, and what customary practices exist there in relation to
child care and control which might influence the local court in deciding the
issue of custody. The law in some foreign jurisdictions is based on family,
religious or cultural traditions. There are also jurisdictions where the law
may not give equal parental or individual rights to women and men. Such factors
will usually have a bearing on the outcome of a child custody case, especially
if one parent is from a different social, cultural or religious background, and
intends, if granted custody, to remove a child from these traditions. The
left-behind parent will also need to be aware that the overseas legal
proceedings may be protracted and
expensive.
4.3 It
should be noted that the Hague Convention does not apply in the mainland of the
People's Republic of China, which should be treated as a non-Convention
jurisdiction. Therefore, court orders made under the guardianship or custody
laws of Hong Kong or under the Hague Convention do not have the force of law in
the mainland of the PRC and cannot be enforced there. Where a child is taken
from the Hong Kong SAR into the mainland, the Hong Kong SAR Government can only
seek the co-operation of the mainland authorities to help find the child and
encourage the abductor-parent to return him to his jurisdiction of habitual
residence.
4.4 Where a child is abducted into Hong Kong from a country where
the Hague Convention does not
apply,[156] the return of the
child is usually only achieved through either the abducting parent voluntarily
returning the child, or by the left-behind parent initiating legal proceedings
in Hong Kong.[157] In such cases,
the wardship jurisdiction of the court is usually invoked.
4.5 As we saw
in Chapter 2, in Hong Kong, an order of wardship can be obtained from the Court
of First Instance of the High Court. The power is contained in section 26 of
the High Court Ordinance (Cap 4). Wardship can be used to prevent a child from
being removed from the jurisdiction of Hong Kong without the consent of the
court.[158] As noted previously,
the advantage of wardship is that the child becomes a ward as from the making of
the application, which occurs when the summons is issued to ward the
child.
4.6 Once the child has been made a ward of the court, the court
will then consider whether to hear the full merits of the application regarding
custody or access, or whether to make a summary order for the immediate return
of the child to the place from which he was
abducted.[159] In deciding this,
the court weighs various factors, but the welfare of the child is always the
paramount
consideration.[160]
4.7 A
number of English cases have held that even for non-Convention situations, it is
appropriate to apply the general principles of the Hague Convention, in
that:
“[I]t is normally in the interests of children that parents or others should not abduct them, and that any decision relating to custody is best decided in the jurisdiction in which the children have hitherto been habitually resident.”[161]
4.8 Weighed
against this, however, the court must consider the risks to the child of being
separated from one parent and entrusted to the care of the other whose
capabilities and fitness to act as a single parent may be in doubt, in
surroundings which may be unfavourable in themselves, and of the child "being
subjected to a regime of law under which the protection of [his] interests may
be open to
question.”[162]
[152] N Lowe & G Douglas, Bromley’s Family Law (9th ed, 1998, Butterworths) at 483. See also Dr Athena Liu, Family Law for the Hong Kong SAR (1999, HKU Press) at 342.
[153] Lowe & Douglas, above, at 483.
[154] B Davis, "The New Rules on International Child Abduction: Looking Forward to the Past" (1990) 1 Australian Journal of Family Law 31, at 33-34.
[155] The Law Society of Hong Kong may be able to assist by providing details of lawyers in foreign jurisdictions who correspond in English. Details of Cantonese-speaking lawyers, or those who read and write in Chinese, may also be available from the Law Society for overseas cities such as London, Toronto, Vancouver and Sydney.
[156] And thus the Child Abduction and Custody Ordinance (Cap 512).
[157] Dr Athena Liu, Family Law for the Hong Kong SAR (1999, HKU Press) at 342.
[158] It is a contempt of court to remove a ward from the jurisdiction of the court: Re J (1913) 29 TLR 456.
[159] Lowe & Douglas, above, at 483.
[160] Dr Liu, above, at 342. (Though see the rather scathing comments regarding the use of the welfare principle in this context, by B Davis, above, at 34.)