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Hong Kong Law Reform Commission |
5.1 This chapter reviews some of the legislative provisions
available in other jurisdictions to combat international child abduction. (In
the subsequent chapters of this report, a number of these are considered as
models for the introduction of similar legislation here in Hong
Kong.)
"It has been estimated that as many as four children a week are abducted and taken to another part of the United Kingdom, and it is clear that in excess of 200 a year are taken abroad."[163]
5.2 Since the existing criminal law was unsatisfactory in providing a
remedy for the unlawful removal of a child, the UK Child Abduction Act 1984 was
enacted to fill that gap. Under section 1 of the Act, it is an offence for a
person connected with the child to take or send a child under the age of 16 out
of the United Kingdom without appropriate consent. Because it is an offence to
attempt to take a child out of the United Kingdom, the police can arrest
anyone they reasonably suspect of the attempt without a
warrant.[164]
5.3 Subject
to limited defences under section 1(5), the consent is required of each person
who is the child’s mother, father (if he has parental responsibility for
the child), guardian, and any person in whose favour a residence (custody) order
is in force, or who has custody of the child. The court can grant leave by
virtue of section 13(3) of the English Children Act 1989. The more common
consent will be that of the other parent. Even if there is no court order, the
Act prohibits removal if the parent does not have the necessary
consents.
5.4 The defences provided for are that the offender believed
the other person consented, or would consent if he was aware of all the relevant
circumstances, or that the person taking the child has taken all reasonable
steps to communicate with the other person but has been unable to communicate
with him, or the other person has unreasonably refused his consent. The latter
does not apply if there is a custody order in existence.
5.5 Section 13
of the English Children Act 1989 provides that the consent of any other person
who has parental responsibility is required only if the child is removed for
longer than one month. However, no offence would be committed if the child is
removed for up to one month by a person in whose favour there is a residence
(custody) order if they have not obtained the consent of the other parent who
has parental responsibility for the child. This was designed to allow parents
to take the child on holiday without the necessity of going back to court if the
other parent did not agree.
5.6 The English courts can also order a "prohibited steps" order at
any time in matrimonial proceedings under section 8(1) of the English Children
Act 1989. In the present context, this is equivalent to an injunction
prohibiting a person in whose favour a residence order is made from taking the
child abroad, particularly in cases where abduction is
feared.
5.7 Failure or refusal to return the child to the jurisdiction
once this period has expired will constitute a wrongful retention of the child
for the purpose of the Hague Convention. If such an order is in existence, then
taking the child out of the jurisdiction for any period of time is an
offence.
5.8 Section 37 of the UK Family Law Act 1986 provides that when there
is a court order prohibiting removal of a child from the United Kingdom, the
court may require the surrender of any United Kingdom passport relating to the
child.[165] The text of section
37(1) states:
"(1) Where there is in force an order prohibiting or otherwise restricting the removal of a child from the United Kingdom or from any specified part of it, the court by which the order was in fact made, or by which it is treated under section 36 of this Act as having been made, may require any person to surrender any United Kingdom passport which has been issued to, or contains particulars of, the child."
5.9 Section 33 of the UK Family Law Act
1986[166] provides that the court
can order any person whom it has reason to believe may have relevant information
on a child’s whereabouts to disclose it to the court where there is
inadequate information as to the location of the child. A person is not excused
from complying with the order by reason of the fact that to do so may
incriminate him or his spouse of an offence, but any statement or admission made
is not admissible against either of them in proceedings for any offence except
perjury. The court has power to summon witnesses to appear before it to reveal
the child's whereabouts, and if the witness refuses to answer, he is guilty of
contempt and can be punished by fine or imprisonment. The relevant provisions
of section 33 state:
"(1) Where in proceedings for or relating to a [custody order] in respect of a child there is not available to the court adequate information as to where the child is, the court may order any person who it has reason to believe may have relevant information to disclose it to the court.
(2) A person shall not be excused from complying with an order under subsection (1) above by reason that to do so may incriminate him or his spouse of an offence; but a statement or admission made in compliance with such an order shall not be admissible in evidence against either of them in proceedings for any offence other than perjury."
5.10 Rule
6.16 of the UK Family Proceedings Rules 1991 gives the court power to order the
child's whereabouts to be
disclosed.[167] The court can
order any person who has information to attend and give evidence. If the child
has been made a ward of court, then a refusal to disclose his whereabouts would
amount to a contempt of
court.[168]
5.11 It would
seem that the power to order disclosure extends to solicitors who have
confidential information of such whereabouts. There have been several English
judgments ordering solicitors to disclose any information which might lead to
the tracing of the child. In Re B (Abduction:
Disclosure),[169] the court
ordered the father’s solicitors to disclose the whereabouts of their
client and all documents in their possession (including those that might come
into their possession in the future) relating to their client’s
whereabouts.
5.12 The court noted that a balance had to be struck
between the duty owed by the solicitor to his client, a duty based on the
welfare of the children and a duty to comply with a court order. In any event,
the information held by the solicitor would not be privileged as it would be
overridden by the child’s interests.
5.13 Section 34 of the UK Family Law Act 1986 provides power to make
an order for recovery of the child where a child has not been given up to the
lawful custodian by the person who is in breach of a custody order. The police
are authorised to take charge of the child and deliver him to the custodian.
They also have authority to enter and search any premises where there is reason
to believe the child may be found and to use such force as may be necessary to
give effect to the order.[170]
The relevant provisions of section 34 state:
"(1) Where –
(a) a person is required by a [custody order], or an order for the enforcement of a [custody order], to give up a child to another person ("the person concerned"), and
(b) the court which made the order imposing the requirement is satisfied that the child has not been given up in accordance with the order,
the court may make an order authorising an officer of the court or a constable to take charge of the child and deliver him to the person concerned.
(2) The authority conferred by subsection (1) above includes authority –
(a) to enter and search any premises where the person acting in pursuance of the order has reason to believe the child may be found, and
(b) to use such force as may be necessary to give effect to the purpose of the order. ...
(4) This section is without prejudice to any power conferred on a court by or under any other enactment or rule of law."
5.14 In Scotland, section 2 of the Children (Scotland) Act
1995 sets out the scope of parental rights over children and how these may be
exercised. In the context of child abduction, provisions within section 2
state:
"(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 [of custody or access]; 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."
5.15 In
relation to the criminalising of parental child abduction, the Scottish Law
Commission reported in 1987, having had the opportunity of reviewing the
UK Child Abduction Act 1984.[171]
They proposed an offence of taking or sending a child abroad in contravention of
a court order.[172] The Scottish
Law Commission also recommended that the court should be able to make an order
prohibiting removal of the child by any person in those instances where the
court would have power to make a custody order.
5.16 They recommended
that a police constable would have the power to arrest without warrant anyone
whom he reasonably suspected of attempting to commit, committing or having
committed the proposed
offences.[173] Section 7 of the
Child Abduction Act 1984 already gave a power of arrest for an offence committed
in Scotland of taking or sending a child out of the United
Kingdom.
5.17 The Scottish Law Commission also proposed an offence of
taking or detaining a child from any person having lawful control. Excluded
would be those acting with lawful authority or reasonable
excuse.[174] Those with lawful
authority would include those with a right of custody and those with a right of
access acting within the scope of that right of access. As yet, their criminal
law recommendations in this area do not appear to have not been
implemented.
5.18 Section 36 of the Irish Child Abduction and Enforcement of
Custody Orders Act 1991 expanded on the power to order disclosure of the child's
whereabouts under section 33 of the UK Family Law Act
1986[175] by extending it to Hague
Convention cases. Section 36 provides:
"(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 [relating to the Hague Convention] ...
(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."
5.19 Section 37(1) of the Irish Child Abduction and Enforcement of
Custody Orders Act 1991 gives power to the police to detain a child whom they
reasonably suspect is about to be, or is being, removed from the State in breach
of any one of a range of orders, including custody and access orders, orders
made pursuant to wardship proceedings, and return orders or interim directions
orders made pursuant to Hague Convention applications. Significantly, section
37(1) states that it applies also:
"while proceedings for one of those orders are pending or an application for one of those orders is about to be made."
5.20 Section
37(2) continues:
"(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. ..."
5.21 In
summary, when the police detain the child, he must be returned to the custody of
the person in favour of whom the court has made the order, unless the police
have reasonable grounds for believing that that person will act in breach of
this order. Where the child is not to be returned to a person with custody, the
police can deliver the child to the health board. The health board then has an
obligation to bring the matter before the court to obtain orders concerning the
child's custody.
5.22 In 1985, the Irish Law Reform Commission had recommended that an
offence of parental child abduction should be formulated which did not place
unrealistic restrictions on those having charge of
children.[176] The Commission
recommended that the offence would be committed by anyone taking or sending or
keeping a child out of the jurisdiction in defiance of a court order, or without
the consent of each parent or guardian of the child, unless the leave of the
court had been obtained. They also suggested various defences similar to those
available under the English legislation. Parental child abduction is now an
offence in Ireland under section 16 of the Non-fatal Offences Against the Person
Act 1997.
5.23 Prior to the introduction of the Australian Family Law Reform
Act 1995, section 64(9) of the Australian Family Law Act 1975 provided that
where a custody order in respect of a child was in force, the court could issue
a warrant which gave powers of entry, search and recovery of a child who had
been abducted. Similar powers were given where an access order was in
force.
5.24 Section 67N of the Australian Family Law Act 1975 gives
power to request information on the location of the child from the records of a
government department provided a warrant has been issued. That section also
allows the court to order a person to provide information to the Registrar of
the court. The court is not given power to order the production of actual
records or information on the grounds of protection of privacy. This section
applies not only to children who are abducted in the formal sense, but includes
children illegally removed from a party who is entitled to custody or access.
5.25 A report by the Australian Family Law
Council[177] expressed concern
about the use of ex parte warrants, especially where the parent had
removed a child from the family home due to domestic violence. A parent who
removes a child from the home because of violence and goes into hiding can be
forced to reveal the whereabouts of the child. The Council suggested that the
issues of privacy, restricted use of records, protection against violence and
measures to protect information given to the court, all needed to be addressed
in amending the Family Law Act provisions.
5.26 The Family Law Council
referred to section 50 of the English Children Act 1989 which gives power to the
court to issue a recovery order. Any person who has parental responsibility for
the child or the police can apply. The court gives a direction to a person to
produce the child on request to any authorised person. This authorised person
can then remove the child. Any person with information as to the child’s
whereabouts must disclose it if requested to do so. Section 50 also authorises
search and entry of a premises to find the
child.[178]
5.27 The
Family Law Council suggested that these provisions of the English Act were
inadequate as they did not deal with the need to protect women against violent
husbands or the issue of privacy of records kept by government
agencies.[179] Instead, the
Council proposed that there would be an application for a declaration that the
applicant was a person with parental responsibility. Then, that person would
seek a “location order” to have government agencies search their
records to locate the address. The order would also give directions in relation
to the short term care of the child until issues of residence and contact were
resolved. The court could prohibit the abducting party from “moving
on”.[180]
5.28 Section 67J(1) of the Australian Family Law Act 1975 defines a
location order as an order of the court requiring a person to provide
information on the child’s
location.[181] Section 67L
provides that the child's best interests are the paramount consideration in
making such an order. Section 67K sets out the persons who may apply for a
location order. The provisions of section 67J and 67K are as follows:
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 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."
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[182]
(d) any other person concerned with the care, welfare or development of the child.”
5.29 The
court can make a “Commonwealth information order” under section 67N
of the Act to seek information on the child’s location which may be
contained in government
records.[183] Subsection (6)
provides that a location order stays in force for 12 months or such longer
period as the court considers appropriate. The person to whom it applies must
provide the information sought by the order as soon as practicable, or as soon
as practicable after the person obtains
it.[184]
5.30 A recovery order is dealt with in Section 67Q of the Australian
Family Law Act 1975. This requires the return of the child, grants stop and
search powers to recover the child and deliver him to the appropriate person,
and prohibits a person from removing the child. A recovery order also gives
directions about the day-to-day care of the child until he is returned or
delivered to another person. The persons who can apply for a recovery order are
similar to those for a location order. The order can also authorise the arrest
without warrant of a person who again removes or takes possession of a child.
Section 67Q states:
"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."
5.31 Section 65Y of the Australian Family Law Act 1975 deals
with parental obligations if a residence order, contact order or care order has
been made:
“(1) If a residence order, a contact order or a care order (the 'Part VII order') is in force, a person who was a party to the proceedings in which the order was made, or a person who is acting on behalf of, or at the request of, a party, must not take or send the child concerned from Australia to a place outside Australia except as permitted by subsection (2). Penalty: Imprisonment for 3 years; and
(2) Subsection (1) does not prohibit taking or sending the child from Australia to a place outside Australia if:
(a) it is done with the consent in writing (authenticated as prescribed) of each person in whose favour the Part VII order was made; or
(b) it is done in accordance with an order of a court made, under this Part or under a law of a State or Territory, at the time of, or after, the making of the Part VII order”.
5.32 Section
65Z provides for similar obligations if proceedings for the making of a
residence order, contact order or care order are pending.
5.33 The Australian Family Law Council recommended that, to comply
with the Hague Convention on the Civil Aspects of International Child
Abduction, there should be a deeming provision under which a
“parenting order” would be regarded as a “custody” order
for the purposes of child
abductions.[185] Section 42 of
the Australian Family Law Reform Act 1995 provides that: for the purposes of the
Hague Convention, each parent is regarded as having custody of the child; and a
person who has a residence order in relation to a child should be regarded as
having custody of the child. A person who, under a specific issues order, is
responsible for the day-to-day care, welfare and development of the child should
also be regarded as having custody of the child. A person who has a contact
order should be regarded as having a right of access to the child.
5.34 Section 67ZD of the Australian Family Law Act 1975
provides:
“If a court having jurisdiction under this part considers that there is a possibility that a child may be removed from Australia, it may order the passport of the child and of any other person concerned to be delivered up to the court upon such conditions as the court thinks appropriate.”
5.35 In 1997, the Family Law Council of Australia issued a discussion
paper on the criminalisation of the law on parental child
abduction.[186] This looked at
the proposition that it should be a criminal offence to remove a child even
where there was no family law order in force. The Council noted that countries
which had criminal offences for child abduction could make use of Interpol and
extradition laws to secure the return of the child. They also noted that in
cases of domestic abduction, “the police are understandably reluctant to
assist in circumstances where the events do not constitute a criminal
offence.”[187]
5.36 On
the other hand, the Council considered that making parental child abduction a
criminal offence could be seen as an undue intrusion into the domain of the
family and that the consequences of a criminal conviction could be
severe.[188] They suggested that
exceptions and defences would need to be provided for; for example, where the
parent taking the child was fleeing the other parent because of violence. (It
should be noted that the Council's final report on this subject concluded that
criminalisation of parental child abduction should not be
recommended.[189])
[163] N Lowe & G Douglas, Bromley's Family Law (9th ed, 1998, Butterworths), at 479.
[164] Lowe & Douglas, above, at 480.
[165] The United Kingdom Passport Agency provides procedures for lodging objections to the issue of passports for the child.
[166] As amended by Schedule 13, paras 62 and 63 of the English Children Act 1989.
[167] This rule appears to apply specifically to proceedings under the 1980 European Convention on the Recognition and Enforcement of Decisions concerning Custody of Children and on the Restoration of Custody of Children.
[168] Mustafa v Mustafa (1967) The Times, 11 and 13 September.
[169] [1995] 1 FLR 774, CA.
[170] Section 34(2), UK Family Law Act 1986.
[171] Scottish Law Commission, Child Abduction (1987: Scot Law Com No 102).
[172] Ibid, at para 6.18.
[173] Ibid, at para 7.9.
[174] Ibid, at para 4.30.
[175] See para 5.9, above.
[176] Irish Law Reform Commission, Report on the Hague Convention on the Civil Aspects of International Child Abduction and some related matters (1985, Report No 12).
[177] Family Law Council of Australia, The UK Children Act 1989 (1994), at para 75.
[178] However, the report does not refer to the fact that section 50 only applies to children who are in care, or the subject of an emergency protection order, or in police protection.
[179] Ibid, at para 79.
[180] Ibid, at para 81.
[181] As inserted by the Australian Family Law Reform Act 1995, which repealed the existing Part V11 of the 1975 Act.
[182] Added by section 57 of the Australian Family Law Amendment Act 2000 (No 143, 2000).
[183] This is “commonwealth” in the sense of jurisdiction over states and territories of Australia and not the wider Commonwealth.
[184] See Australian Family Law Act 1975, section 67N(5).
[185] Family Law Council of Australia, The UK Children Act 1989, above.
[186] Family Law Council of Australia, Parental Child Abduction (Feb 1997).
[187] Ibid, para 1.12.
[188] Ibid, para 4.06.
[189] See Family Law Council of Australia, Parental Child Abduction (Jan 1998; Commonwealth of Australia), at paras 4.33 to 4.34.