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Hong Kong Law Reform Commission |
(a) there should be a provision in primary legislation to restrict the removal of a child from the jurisdiction without the consent of the parent who has custody, or control of the child’s residence, or with whom the child has regular contact. We recommend that provisions along the lines of section 2(3) and (6) of the Children (Scotland) Act 1995[220] be adopted;
(b) this section would apply in cases where proceedings have already been issued or court orders have already been made concerning the child;
(c) this section would also extend to any child of the family; and
(d) Rule 94(2) of the Matrimonial Causes Rules (Cap 179, subsidiary
legislation),[221] which allows an
application to the court to prevent removal of the child, should also be enacted
into primary legislation.
Recommendation
2
(Disclosure of whereabouts / location
orders)
We recommend:
(a) a power to order the disclosure of the whereabouts or location of the child along the lines of section 36 of the Irish Child Abduction and Enforcement of Custody Orders Act 1991[222] and section 67J of the Australian Family Law Act 1975;[223] and
(b) the adoption of an additional provision specifying who should be
entitled to apply for a location order, as in section 67K of the Australian
Act.[224]
Recommendation
3
(Recovery orders)
We recommend the adoption of
provisions on recovery orders similar to those in section 67Q of the Australian
Family Law Act
1975.[225]
Recommendation
4
(Power to hold a child so that he can be returned to the
custodial parent or taken to a place of safety)
We
recommend:
(a) the introduction of a provision along similar lines to section 37 of the Irish Child Abduction and Enforcement of Custody Orders Act 1991,[226] to empower the police to hold a child whom they reasonably suspect is about to be or is being removed from the jurisdiction in breach of a court order, so that the child can be taken to a place of safety while the court and/or the other parent and/or the Social Welfare Department can be notified; and
(b) that in such cases, immigration officers should be empowered to hold the child suspected of being abducted until the police arrive to take the child to a place of safety.
However, we do not propose to go so far as to have a
general power of arrest.
Recommendation
5
(Surrender of passports)
We recommend the
retention of the status quo in relation to whether the court should be able to
order the surrender of passports. We reject the adoption of a similar provision
to section 67ZD of the Australian Family Law Act
1975[227] for Hong
Kong.
Recommendation 6
(Notification of
court order to Immigration)
We recommend that:
(a) it should be the parents’ responsibility to notify the Immigration Department that a court order has been made prohibiting the removal of the child from Hong Kong;
(b) it should be at the discretion of the parents whether the Immigration Department is notified or not; and
(c) if one parent does notify the department of the order, however, it
should be mandatory that that parent inform the other parent of the fact of
notification.
Further observations
(Though not
proposed as formal recommendations, we wish to draw to the attention of the
Administration certain further issues relating to child abduction, which may
require consideration for
reform.[228])
(Legal
aid position)
(a) In order to assist the Central Authority to duly discharge its obligations under the Hague Convention, it would be most helpful if special arrangements could be made, or the current arrangements strengthened, to promote the expeditious processing of legal aid applications in Hague Convention cases.[229]
(b) Notwithstanding the current provision relating to costs in Hague Convention cases,[230] the Administration may need to consider whether Hong Kong should follow the lead of those contracting states which offer legal aid without a means test to all incoming Hague Convention applicants.
(c) As an alternative, it might be considered appropriate for legal aid to be granted in Hong Kong on the strength of the legal aid authority in the requesting state confirming that the applicant is eligible for legal aid in that jurisdiction.
(d) It would also greatly assist the Central Authority to duly discharge
its obligations under the Hague Convention if solicitors assigned to Hague
Convention cases by the Director of Legal Aid were required to keep the Central
Authority informed of the development and outcomes of these
cases.[231]
(Stay
of custody proceedings in Hong Kong)
(e) The effectiveness of the current provisions in Hong Kong relating to
the stay of custody proceedings pending the outcome of Hague Convention
applications may need to be reviewed, to determine whether further strengthening
of these provisions is
required.[232]
(Confidentiality
of Hague proceedings)
(f) In order to better protect the interests of children, it may be
necessary to consider whether specific legislative provisions are required to
prohibit not only the publication of information relating to Hague Convention
proceedings but also to prohibit the searching and inspection of the court file
in these proceedings by members of the
public.[233]
[220] See Chapter 6, above, at paras 6.5, and Annex 2, below, at para 2. See also Chapter 5, above, at para 5.14.
[221] See Chapter 6, above, at paras 6.2. See also Chapter 2, above, at para 2.13.
[222] See Chapter 6, above, at para 6.12, and Annex 2, below, at para 3. See also Chapter 5, above, at para 5.18.
[223] See Chapter 6, above, at para 6.13, and Annex 2, below, at para 3. See also Chapter 5, above, at para 5.28.
[224] See Chapter 6, above, at paras 6.13, and Annex 2, below, at para 3. See also Chapter 5, above, at para 5.28.
[225] See Chapter 6, above, at para 6.16, and Annex 2, below, at para 4. See also Chapter 5, above, at para 5.29.
[226] See Chapter 6, above, at para 6.20, and Annex 2, below, at para 5. See also Chapter 5, above, at paras 5.19 to 5.20.
[227] See Chapter 5, above, at para 5.34.
[228] As noted in Chapter 7, these observations reflect concerns which have been expressed to us by the HKSAR Central Authority counsel under the Hague Convention. As this information was received subsequent to the publication of our consultation paper, we have not sought the views of the public on these issues.
[229] We must point out, however, that we are advised that officers in the Legal Aid Department who process the legal aid applications are very mindful of the need to treat Hague cases as expeditiously as possible, and that in practice, delay may be rare.
[230] Ie, section 13 of the Child Abduction and Custody Ordinance (Cap 512), which provides that the costs of Hague applications shall not be borne by the Hong Kong authorities, except in cases where legal aid is granted.
[231] See Chapter 7, above, at paras 7.2 to 7.8.
[232] See Chapter 7, above, at paras 7.9 to 7.12.
[233] See Chapter 7, above, at paras 7.13 to 7.16.