Hong Kong Law Reform Commission

Chapter 6 - Recommendations for reform

• Introduction
• Removal of the child from the jurisdiction
• Disclosure of whereabouts/location orders
• Recovery orders
• Power to hold a child so that he can be returned to the custodial parent or taken to a place of safety
• Surrender of passports
• Notification of court order to the Immigration Department

Introduction

6.1 In Chapter 2, we examined the provisions of Hong Kong’s civil and criminal law relating to child abduction. In this chapter, we review the relevant findings of our consultation exercise and set out our conclusions and recommendations for reform in this area.

Removal of the child from the jurisdiction

6.2 The only legislative provisions which deal specifically with the removal of a child from Hong Kong are contained in subsidiary legislation. Rule 94(2) of the Matrimonial Causes Rules (Cap 179, subsidiary legislation)[190] allows an application to the court to prevent removal. The rule states:

"A petitioner or respondent, or in case of a joint application, either of the joint applicants concerned 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. Unless otherwise directed, an application under this paragraph may be made ex parte."

6.3 A similar provision is contained in Order 90, Rule 5(3) of the Rules of the District Court (Cap 336, subsidiary legislation).

6.4 In England, section 13(1) and (2) of the English Children Act 1989 makes it an automatic condition of a residence (custody) order that the child should not be removed from the United Kingdom for longer than one month without the written consent of any person with parental responsibility or the leave of the court. The person with a residence order may remove the child for less than one month without seeking permission of the other parent or having to give notice. This provision may be problematic in Hong Kong with the ease and frequency of travel out of the jurisdiction.

6.5 We proposed in the consultation paper that there should be a provision in primary legislation to restrict the removal of a child without the consent of the parent who has control of the child’s residence or with whom the child has regular contact. We expressed a preference for the adoption of provisions along the lines of section 2(3) and (6) of the Children (Scotland) Act 1995,[191] which 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."

6.6 We proposed that this new provision would apply in cases where proceedings had already been issued or court orders had already been made concerning the child. It would also extend to any child of the family.[192]

6.7 We also proposed that Rule 94(2) of the Matrimonial Causes Rules (Cap 179, subsidiary legislation), which allows an application to the court to prevent removal, should be enacted into primary legislation.

6.8 There was no opposition to these proposals from the respondents to the consultation paper. The Hong Kong Bar Association further agreed with our view that it would be inappropriate to allow for a one month removal of the child without consent, as was the case in the United Kingdom, "bearing in mind the ease and frequency of travel in Hong Kong and the difficulties of enforcement once the child has left the jurisdiction." The Hong Kong Family Welfare Society noted that these provisions should include a non-parent who is granted the custody or access order with respect to the child.

6.9 It was noted in Chapter 5 that under the UK Child Abduction Act 1984, it is a criminal offence for a person connected with a child to take or send the child out of the United Kingdom without appropriate consent.[193] As it is an offence to attempt to do so, the police can arrest anyone they reasonably suspect of the attempt without a warrant.

6.10 In the consultation paper, we expressed the view that in Hong Kong parental child abduction should not be so criminalised. Our reasoning was that new criminal offences could only be justified if there was a serious problem of children being abducted either within, to or from Hong Kong, and that at present, there was no evidence that this was the case.[194] We maintain this view and reiterate the more usual common law approach that, although a very serious situation and highly traumatic for the child and the left-behind family, if the person taking the child is one of the child’s parents, the criminal law can have only a very limited role to play in the case.[195]

Disclosure of whereabouts/location orders

6.11 A "whereabouts" order (the term used in the Irish legislation) or "location order" (the term used in the Australian legislation) requires a person to provide information on the location of a child.

6.12 Section 36 of the Irish Child Abduction and Enforcement of Custody Orders Act 1991 expanded on the power of the Irish courts to order disclosure of the whereabouts of the child by extending it to cases under the Hague Convention on the Civil Aspects of International Child Abduction. In the consultation paper, we recommended a power for the Hong Kong courts to order the disclosure of the whereabouts of the child along the lines of section 36 of the Irish Act.[196] The provisions of section 36 state:

"(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."

6.13 We also favoured for adoption in Hong Kong the location order provisions contained in section 67J of the Australian Family Law Act 1975, including the additional section 67K provisions specifying who should be entitled to apply for a location order.[197] These provisions state:

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[198]

(d) any other person concerned with the care, welfare or development of the child."

6.14 The introduction of provisions along these lines was widely supported by the respondents to the consultation paper. The Civil Division of the Department of Justice, which carries out the functions of the Hague Convention Central Authority for the Hong Kong SAR, noted that the Irish whereabouts order and the Australian location order largely overlapped and should be combined. We endorse this view. They also felt that there should be statutory penalties for non-compliance with the location order.

6.15 We generally confirm the proposals in our consultation paper in this area, though we agree that where the whereabouts and location order provisions overlap, they should be combined into one section.

Recovery orders

6.16 A recovery order 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 a child. In the consultation paper, we examined the recovery order provisions in both Australia and the United Kingdom and concluded that the Australian provisions in section 67Q of the Australian Family Law Act 1975[199] were to be preferred. 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."

6.17 As with the whereabouts and location order proposals, these suggested provisions were widely supported by the respondents to the consultation paper. The Civil Division of the Department of Justice raised the following concerns, however. They noted that there may be practical difficulties when a recovery order is made and the child is recovered, in terms of how the child is to be looked after (by whom and where) and then delivered back to the applicant parent if they are overseas, and neither the HKSAR Central Authority, nor a representative from the Requesting State, can come to Hong Kong to accompany the child. The Civil Division said that these matters raised funding issues on which the relevant policy bureau and the Social Welfare Department should be consulted before recovery orders were introduced. The Social Welfare Department echoed these views. We note these concerns, and consider that these are matters for the Administration to address at such time as the proposals may be implemented.

Power to hold a child so that he can be returned to the custodial parent or taken to a place of safety

6.18 As we saw in Chapter 2, the Immigration Department of the Hong Kong SAR can prevent a parent and child departing from Hong Kong when they are aware of a court order prohibiting removal (this is referred to as the 'stop order' procedure), but cannot arrest or detain them. If no order prohibiting removal has been made, or if one has been made but has not yet been advised to Immigration, then Immigration cannot stop a child from leaving Hong Kong if the child has a valid travel document.[200]

6.19 In the consultation paper, we advocated providing the power to the authorities to detain a child whom they reasonably suspected was about to be, or was being, removed from the jurisdiction in breach of court orders. We felt that this power to hold the child, until the other parent and/or the court could be notified may be necessary in certain emergency situations[201] to prevent the child from being removed from the jurisdiction.

6.20 We proposed as a model for this provision section 37 of the Irish Child Abduction and Enforcement of Custody Orders Act 1991,[202] which states:

“(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. ..."

6.21 The introduction of a power to hold the child suspected of being abducted proved to be a controversial proposal, with a number of concerns and objections being raised by respondents to the consultation paper. The Immigration Department were not in favour of having this power for themselves. They noted that the existing powers of arrest, detention and the granting of bail conferred on immigration officers were for the purposes of the prevention and detection of immigration-related crime. In their view, it would not be appropriate for them to resort to a power to detain as a means of enforcing a civil judgment or order. If, however, the power to hold the child were to be conferred upon the police, they indicated that they would certainly be prepared to assist the police in carrying out this responsibility on any occasion necessary.

6.22 The Civil Division of the Department of Justice, which, as noted above, carries out the functions of the Hague Convention Central Authority for the Hong Kong SAR, felt that granting the power to hold the child was too drastic a step, particularly considering how frightening the experience would be for any child held by the authorities. Civil Division of the Department of Justice felt that there was not sufficient justification to warrant this additional power when stop orders could be obtained quickly - within the same day ex parte from the duty judge - and were effective in preventing the child from being removed from the jurisdiction by placing his name on the Immigration Department's 'stop list.'

6.23 The Law Faculty of the University of Hong Kong and the Law Society of Hong Kong Family Law Committee noted that the term “detain” meant “to keep in confinement or under restraint.” They commented that detention therefore “implies a restriction on the liberty of an innocent person which contradicts basic human rights principles.” They proposed that the power to “detain” should be avoided altogether and substituted by a more neutral power to take the child to "a place of safety.” The Law Faculty of HKU also urged the Government to consider establishing appropriate places of safety for such children to be held.

6.24 Ms Heather Douglas of the City University of Hong Kong, who also did not support the proposal, queried the basis of the “reasonable suspicion” referred to in the suggested legislation. Ms Douglas noted that if a parent was trying to leave Hong Kong by an illegal method as was mentioned in the consultation paper, then presumably the police would be able to stop the parent, and hence the child, because of their reliance on that illegal method.

6.25 Some contrary views to these were also expressed. The Official Solicitor’s Office supported the proposal, as did the Hong Kong Young Legal Professionals Association. The Hong Kong Bar Association wondered whether the proposed power went far enough, and suggested that introducing a power of arrest in relation to the abducting parent might be considered. ReSource The Counselling Centre agreed with the proposed power to hold the child and also suggested that there should be a power to detain, and even arrest, the parent attempting to remove the child from Hong Kong. In their view, not only would this be a deterrent to a parent embarking on a plan of abduction, but it might also avoid the situation where a thwarted parent leaves the child at the airport “with only immigration officers for company.”

6.26 After considering all of the comments made by our consultees, we still generally advocate our original reform proposals under this head. However, we are mindful of the human rights concerns expressed and must emphasise that the rationale for the proposed power is to protect a child who is being abducted. We suggest that this power is in some ways analogous to the power contained in section 34E of the Protection of Children and Juveniles Ordinance (Cap 213),[203] which allows a police officer to detain a child who is suspected of being in need of care or protection and to deliver him to a place of refuge, or to such other place as he may consider appropriate. We would suggest that in the types of situations where this power might be used, the child could, for example, be held initially at the first-aid clinic at the airport until the custodial parent or an officer from the Social Welfare Department could arrive to take the child. We would also suggest that, wherever possible, female officers from the police and Immigration should be called in to handle or assist in these cases.

6.27 It is this principle of the child being held under protection so that he can be returned to the custodial parent, or taken to a place of safety so that further directions can be sought from the court, which must be kept in view. We believe that it is not sufficient for the abducting parent and the child simply to be stopped and turned away from the immigration checkpoint because this leaves the abducting parent free to make further attempts to leave Hong Kong with the child by other means. This situation is clearly not in the best interests of the child. As the research and statistics indicate, once the child has been taken out of the jurisdiction, it may be very difficult to trace his whereabouts and obtain his return. A balance therefore needs to be struck between the possible short-term trauma to the child of being held by the authorities in a place of safety pending the arrival of the other parent or Social Welfare, etc, and the longer-term trauma to the child of being taken away, possibly permanently, from his custodial parent and his home jurisdiction.

6.28 We therefore endorse our earlier approach and leave the issue to the Law Draftsman as to how to emphasise the protective nature of the proposed power in the implementing legislation.

Surrender of passports

6.29 As we have noted earlier, the immigration authorities cannot in general prevent a person leaving the jurisdiction if he is holding a valid travel document.[204] It is therefore significant whether in potential child abduction cases the authorities or the courts have powers either to prevent the issue of passports or to order their surrender.

6.30 In the Irish case of the State (KM & RD) v the Minister for Foreign Affairs[205] the High Court treated the denial of a passport as a breach of the right to travel, which was a personal right under Article 40.3 of the Irish Constitution.[206] In another case, Cosgrove v Ireland and Others,[207] the High Court held that a father’s rights as joint guardian under the Guardianship of Infants Act 1964 had been breached as a passport had been issued for the child despite the father’s objection. Section 37 of the UK Family Law Act 1986[208] provides that when there is a court order prohibiting removal of a child from the United Kingdom, the court may require any person to surrender any passport which has been issued to or contains particulars of the child.

6.31 It would seem that refusing to issue a passport at the request of a parent may be in breach of the freedom of movement guaranteed by Article 31 of the Basic Law which provides that:

“Hong Kong residents shall have freedom to travel and to enter or leave the Region. Unless restrained by law, holders of valid travel documents shall be free to leave the Region without special authorization”.

6.32 In the consultation paper, we accepted that the court has the inherent power to order the surrender of passports where there is a real risk that the child will be unlawfully removed from Hong Kong,[209] and that magistrates can order the surrender of all passports, Chinese re-entry permits and travel documents, when they release persons on bail. We also noted, however, that Hong Kong is in a unique position that makes it difficult to legislate in this area. Hong Kong residents tend to travel in and out of Hong Kong, whether to the mainland or elsewhere, with more frequency than residents of other jurisdictions; and there is only an identity card control between Hong Kong and the mainland for Chinese permanent residents. It is therefore possible for certain persons to leave Hong Kong for another jurisdiction without a passport. We observed that it would be difficult for a court to order the surrender of a Hong Kong SAR identity card, given the requirements imposed on HKSAR residents to carry such a card.

6.33 We therefore recommended in the consultation paper the retention of the status quo in relation to the surrender of passports in these cases, though a minority of members of the sub-committee recommended legislating a power to order the surrender of all passports, Chinese re-entry permits and travel documents, where the court had made, or was making, an order prohibiting removal of the child. We noted in the consultation paper that the Australian section 67ZD of the Family Law Act 1995,[210] which gave power to the court to order the surrender of passports to the court, did not cover such situations as the length of time that the passport could be withheld. We therefore rejected the adoption of a similar proposal for Hong Kong.

6.34 On consultation, the only respondent to raise any objections to our proposed approach was the Hong Kong Bar Association. The Association agreed with the sub-committee minority view, and felt that, although not likely to be often used, the court should have the express power to order the surrender of passports in appropriate cases.

Notification of court order to the Immigration Department

6.35 Practitioners have expressed concern at the variation in practice as to whether the Immigration Department is informed or not of the making of a court order prohibiting the removal of a child without the written consent of the other parent or the court.

6.36 In some cases, a parent does not inform the department, as the parents are able to agree informally between themselves as to whether the child is removed for a holiday, without the necessity of varying the court order or having to correspond via solicitors. On the other hand, there are cases where a parent arrives at the departure area and is informed by immigration officials that he cannot depart with the child because the department has been notified of the order.

6.37 In considering this issue, we concluded that the Family Court Registry should not be under an obligation to notify the Immigration Department of the court order; neither should the Immigration Department be obliged to inform the other parent that they have received a copy of the court order.

6.38 We recommended in the consultation paper that it should be the parents’ responsibility to notify the Immigration Department that a court order had been made prohibiting the removal of the child from Hong Kong. We felt that it should be up to the discretion of the parents whether the Immigration Department was notified or not. However, we did emphasise that if one parent does notify the department of the order, it should be mandatory that they inform the other parent of the fact of notification.

6.39 This approach was supported by all but one of the respondents to the consultation paper, who felt that all divorces involving children should be treated as potential abduction cases, and that the names of the children involved should automatically be lodged with the Hague Convention authorities in the relevant jurisdictions. They would then be in a position to take prompt, appropriate action if an abduction situation were to arise.

6.40 Having considered the issues, we endorse our earlier view and that of the majority of the respondents to the consultation paper.

[190] See further Chapter 2, above, at para 2.13.

[191] See Chapter 5, above, at para 5.14, and Annex 2, below at para 2.

[192] This is defined in section 2 of the Matrimonial Proceedings and Property Ordinance (Cap 192) as a child of both parties or a child who has been treated as a child of their family.

[193] See section 1, UK Child Abduction Act 1984.

[194] See the statistical information on Hong Kong-related child abduction cases in Chapter 1.

[195] See also Dr Athena Liu, Family Law for the Hong Kong SAR (1999, HKU Press) at 333.

[196] See further Chapter 5, above, at para 5.18, and Annex 2, below, at para 3.

[197] See further Chapter 5, above, at para 5.28, and Annex 2, below, at para 3.

[198] Added by section 57 of the Australian Family Law Amendment Act 2000 (No 143, 2000).

[199] See further Chapter 5, above, at para 5.29, and Annex 2, below, at para 4.

[200] See Chapter 2, above, at paras 2.36 to 2.37.

[201] For example, where the formal stop order procedure has not been effected in time and the abducting parent has already passed through the immigration checkpoint with the child.

[202] See Chapter 5, above, at paras 5.19 to 5.20, and Annex 2, below, at para 5.

[203] See discussion of this provision in Chapter 2, above, at paras 2.25 to 2.26.

[204] See Chapter 2, above, at para 2.36, and this chapter, above, at para 6.18.

[205] [1979] IR 73.

[206] “The State guarantees to respect, defend and vindicate the personal rights of the citizen.”

[207] [1982] ILRM 48.
[208] For text of the provision, see Chapter 5, above, at para 5.8.

[209] The English Court of Appeal in In re A-K (Minors)(Foreign Passport: Jurisdiction) [1997] 2 FLR 569, held that it was well within the jurisdiction of the High Court to order the surrender of a foreign passport in order to protect the interests of children. The court had ordered that the husband’s passport be held by his own solicitor and not released except with the mother’s agreement or order of the court. See also the discussion in Chapter 3, above, at paras 3.18 to 3.19.

[210] For text of the provision, see Chapter 5, above, at para 5.34.