Chapter 1

The problem of parental child abduction

____________________________________________________

The legal context

1.1 When a child is taken away without consent or lawful authority from a person who has the right to care for him, the child has been abducted. When a child is removed in these circumstances across an international border, this constitutes international child abduction.⁹ The focus of this report is international parental child abduction.¹⁰ This situation usually occurs when a relationship between two parents breaks down and one of them, often in the face of a court order that he or she is unhappy with, takes the law into their own hands and absconds with the children to another country.

1.2 With the ease and frequency of foreign travel and the relaxation of cross-border controls, combined with the upsurge in international marriages and the resulting complications of children with dual nationality and dual passports, the act of removing a child to another jurisdiction has become relatively easy in recent times.¹¹ Up until the 1980s however, there was little international co-operation on parental child abduction, and custody and access orders made in one jurisdiction were generally neither recognised nor enforceable in another.¹²

“This state of international ‘anarchy’ operated as an encouragement to would-be abductors who, by appropriate forum shopping, could hope to take their children from one jurisdiction to another and there obtain judgment in their favour.” ¹³

1.3 The common law rules of private international law provide that the welfare of the child is to be the paramount consideration in any proceedings concerning children. This can be interpreted by the foreign court to mean, not that the child should be returned promptly to his home jurisdiction in recognition of pre-existing legal custody arrangements, but that the child should not be returned given the new circumstances of the case.¹⁴ As one judge has commented, “[a]nyone who has had experience of the exercise of this delicate jurisdiction knows what complications can result from a child developing roots in new soil, and what conflicts this can occasion in the child’s life. Such roots can grow rapidly.” ¹⁵ Another has observed that "the pull of gravity from the country of origin diminishes at an accelerating speed with the passage of time." ¹⁶ The implication from this is that the abducting parent can accrue an advantage by covering his tracks and postponing a determination of the custody dispute for as long as possible.¹⁷ One writer has commented:

“[t]o adopt a rule that has that result is contrary both to justice and common sense." ¹⁸

1.4 With divorce rates rising dramatically¹⁹ and the numbers of abduction cases increasing,²⁰ “the law has been hard-pressed to find a satisfactory solution.”²¹ However, as a result of a Canadian initiative,²² the Hague Conference on Private International Law ratified the Convention on the Civil Aspects of International Child Abduction ("the Hague Convention") on 25 October 1980. This Convention heralded a new international approach to combating parental child abduction.²³

1.5 The Convention’s stated aims are to secure the prompt and safe return of children who have been wrongfully removed from one Convention country to another, and to ensure that rights of custody and access under the law of one contracting state are effectively respected in the other contracting states.²⁴ The Convention is currently in force in 72 jurisdictions,²⁵ including the Hong Kong SAR.²⁶ The details of the Hague Convention and its operation are examined further in Chapter 3.

The social consequences of child abduction

1.6 The parent who snatches a child away from the other parent presents a difficult problem in family law.²⁷ What legal standard should be applied to what is ordinarily an intra-family dispute? Should a parent’s abduction of his own child be considered a criminal act?²⁸

1.7 The merits of who should be awarded custody of the children in family proceedings are often not clear-cut. Practical welfare considerations and a wish to maintain the status quo for the children as far as possible usually play a large part in the court’s decision. This can be further complicated in a situation where the parents come from different homelands. One of the parents may find themselves left with little support in a foreign country when the marriage breaks down, so may feel they have no choice but to return "home" even though their children are to remain behind with the other parent.²⁹ In other cases, the court may award custody of the children to a parent who subsequently re-locates overseas, away from the access parent. In both situations, the right to maintain contact with the children may become "little more than a legal fiction"³⁰ for one of the parents. It has been commented that the temptation to resort to self-help in such cases "may be overwhelming."³¹

1.8 Although the numbers of cases involved are not yet large,³² international parental child abduction is a problem of immense emotional proportions which is fraught with practical difficulties.³³

"[I]t is hard to imagine anything more chilling than for a mother to return home to find her children have disappeared and then to receive a telephone call from the father saying that they are all in South America. The children in these cases will have suffered the trauma of the breakdown of their parents’ marriage. They are then uprooted from all that is familiar and important to them. Their world is turned upside down, and they become strangers in a foreign land. However resilient the child, that experience must be confusing, frightening, and, in the long run, damaging.”³⁴

1.9 Children who have been abducted by family members are sometimes physically and almost always psychologically harmed as a result of their abduction.³⁵ Many children in these situations are told that the other parent is dead or no longer loves them. They are often given new names by their abductor-parents and are instructed not to reveal their real names or where they have come from. Because of the harmful effects on children, parental child abduction has been characterized in some quarters as a form of child abuse.³⁶

1.10 Parents whose children have been abducted (the "left-behind" parents) will likely suffer great emotional and financial hardships in their efforts to locate the children and resolve the situation. Traumatic and expensive litigation may ensue as they try to obtain the return of the children or the enforcement of court orders.³⁷ As we have noted above, unless international co-operation arrangements such as the Hague Convention can be invoked, issues will arise as to which court should hear the merits of the case for custody. Will it be the court of the child’s usual place of residence, which may have already granted custody to the left-behind parent, or the court of the country to which the child has lately been taken?

“[H]istorically courts have been jealous of their jurisdiction to decide matters regarding litigants who are present within that jurisdiction. The urge to refuse to cede jurisdiction is especially strong in family disputes where mother and father are from different cultures as well as countries. Both cultures, when applying the legal test of “best interests of the child”, apply it in an ethnocentric way … Each culture [considers] its own way of ordering family relations when deciding cases such as this.” ³⁸

The situation internationally

1.11 Two recent research studies have analysed and 'profiled' parental child abduction cases in detail, and how these are handled under the Hague Convention.³⁹ According to the most recent of these studies, cases involving approximately 1,080 children were actioned under the Convention in 1999.⁴⁰ Obviously, the number of child abduction cases varied greatly from jurisdiction to jurisdiction. The relevant authorities in the USA and England and Wales handled by far the largest numbers of “incoming” applications (where the child was abducted into that jurisdiction) and “outgoing” applications (where the child was abducted out of that jurisdiction), with a combined total of almost 50% of all Hague Convention cases handled world-wide.⁴¹

1.12 In terms of the usual mode of abduction of the child, the commentators on the 1996 statistics observed:

“In the popular consciousness the words ‘child abduction’ conjure up images of children snatched from school or from their homes, bundled into a car and whisked away to some distant land, usually by their fathers. According to our findings, however, such images are false. In our sample, fathers were responsible for only 27 per cent of the abductions, while the children’s mother was the abductor in 70 per cent of the cases, with grandparents and ‘others’ making up the remaining 3 per cent. Although our information on the nature of the abduction was limited, the child was ‘snatched’ or taken from school in only 4 per cent of the cases, while by contrast, 24 per cent of the cases involved one or other parent taking the child on holiday and failing to return.” ⁴²

1.13 As to perceivable trends, the statistics from these studies indicated that:

• the vast majority of applications under the Hague Convention were for the return of the child, not enforcement of access arrangements (for example, there was a ratio of 84% to 16% return to access applications made in 1999);⁴³

• the majority of the abducted children (56% for 1996) were six years old or younger, with the majority of cases (59% for 1996) involving single children, not sibling groups.⁴⁴ The majority (53.3% for 1999) were boys;⁴⁵

• in 1996, the vast majority (97%) of the cases analysed revealed that the "taking person" (abductor) was one of the parents, while others included grandparents, aunts, uncles and, in one case, the child’s nanny.⁴⁶ In 1999, 70% of the taking persons globally were women,⁴⁷ which compares to a figure of less than 50% in the early days of the Convention.⁴⁸ (It has been commented that this may be indicative of an increasing trend for abductions to be perpetrated by mothers escaping domestic violence situations with their children⁴⁹);

• almost 50% of the cases involved a taking person who was of the same nationality as the state applied to for return (“the requested state”). This tends to suggest that many of these taking persons were “going home”;⁵⁰

• globally, just over half the applications in 1999 (50.2%) resulted in return of the child, either by judicial return (32.2%) or voluntary return (18%);⁵¹

• according to the 1999 figures, dispositions (cases completed) within six weeks were relatively rare, though they were more likely where the case was settled voluntarily.⁵² The processing time for access applications was considerably longer than for return applications, with a global mean figure of 97 days (ie, just under 14 weeks) for judicial returns, compared to 60% of access applications taking over 6 months.⁵³

The situation in the Hong Kong SAR

1.14 Figures available for the period since 1 September 1997,⁵⁴ when the Hague Convention was extended to the Hong Kong SAR, indicate that there have been 19 incoming and 18 outgoing cases of child abduction involving the Hong Kong SAR notified to the authorities. The other jurisdictions concerned have included Argentina, Australia, Brazil, Canada, France, Germany, Luxembourg, New Zealand, Panama, Switzerland, Taiwan, the United Kingdom and the USA. A more detailed profile of the incoming and outgoing cases for the year 1999 is noted below.

1.15 The applications. Altogether the Central Authority for the Hong Kong SAR under the Hague Convention handled six new applications in 1999. Four were incoming applications for the return of children abducted from other jurisdictions and brought into Hong Kong. Two of these applications came from England and Wales, the other two came from the USA and Canada respectively. There were no incoming access applications. There were also two outgoing applications made for the return of children abducted from Hong Kong to other jurisdictions.

1.16 The taking persons. All the taking persons were male. This is in stark contrast to the global norm, where 70% of taking persons were female.⁵⁵ In two applications, the taking person was a national of the requested state. In the other two applications, the taking person had a different nationality.

1.17 The children. There were applications for four children in total abducted into Hong Kong in 1999. Each application was for a single child and no sibling groups were involved. Two of the children were under 4 years old and the other two were aged between 5 and 9 years old. Two of the children were male and two were female.

1.18 The outcomes. In 1999, all of the incoming applications made to Hong Kong from other jurisdictions resulted in a judicial return, whereas globally, only 32.2% of applications ended in judicial return. Hong Kong was the only contracting state in the analysis where all incoming applications resulted in a judicial return.

1.19 In 1999, the average length of time for a judicial return of a child abducted into the Hong Kong SAR from another jurisdiction was, remarkably, only 26 days. This is well within the six-week time limit implied in Article 11(2) of the Convention and compares extremely favourably with the handling time taken in other jurisdictions (the global norm for judicial returns in 1999 being 87 days).

The aim of this report

1.20 Parental abduction of children across international lines might be considered by some as a form of child abuse. The child suffers the trauma of being taken away from his home, from his custodial parent and other family members, and of being taken to a foreign country with which he may have little or no connection. Added to this, his abduction will be an extremely harrowing experience for the child's left-behind family, particularly the left-behind parent.

1.21 It is to be hoped that as more countries accede to the Hague Convention on the Civil Aspects of International Child Abduction, and as the provisions and practices under the Convention are developed further,⁵⁶ this mechanism will become increasingly successful in combatting international parental child abduction, both from the point of view of returning abducted children and in providing an effective deterrent to would-be child abductors.

1.22 The objective of this report is to consider ways in which the current civil and criminal law in Hong Kong might be strengthened, so as to better assist the parties who are immediately affected by child abduction and the lawyers and relevant authorities handling their cases. It should be noted that this report focuses on the constituents of the law in this area rather than on the mechanics of how the law is to be enforced.

1.23 Unfortunately, even with the best legal provisions in place, the law itself can never be expected to prevent the abduction of children in every case. What the law should strive to achieve, however, is to minimise its likelihood as far as possible.

1.24 Our recommendations and observations for reform of the law in this area are outlined in Chapters 6 to 8 of the report.

Chapter 2

Preventing the abduction of a child

from the Hong Kong SAR

_____________________________________________

Introduction

“The best chance of recovering the child is to prevent him from leaving the jurisdiction in the first place. To this end, the innocent party may invoke both the criminal and the civil law.” ⁵⁷

2.1 As we have seen in the previous chapters, when custody battles ensue, there are now international mechanisms in place to help locate and return children who are unlawfully taken from their home jurisdictions by the other parent. These mechanisms, such as the Hague Convention on the Civil Aspects of International Child Abduction, are proving to be successful in a significant number of cases, with the global rate of “judicial returns” (where the court intervenes to order the return of the child) estimated to be over 30 per cent of total cases, and voluntary returns at nearly 20 per cent.⁵⁸

2.2 From the left-behind parent’s point of view however, it is far preferable to foil the attempt to remove the child from the jurisdiction before it can take place, although "prevention requires foresight and anticipation”⁵⁹ and swift action in taking any necessary practical⁶⁰ and legal steps.⁶¹

2.3 This chapter begins with a brief overview of Hong Kong’s current law relating to child custody and access. It then examines the various means available under the civil and criminal law to prevent the abduction of a child from the Hong Kong SAR or to seek his return once he has left the jurisdiction.

Custody of children generally in Hong Kong

2.4 Hong Kong’s substantive law on the guardianship and custody of children is contained in a variety of ordinances, including the Guardianship of Minors Ordinance (Cap 13), the Matrimonial Proceedings and Property Ordinance (Cap 192), the Matrimonial Causes Ordinance (Cap 179) and the Separation and Maintenance Orders Ordinance (Cap 16). The Guardianship of Minors Ordinance, which governs court proceedings relating to the custody and upbringing of children,⁶² puts into statutory form the well-established principle that, in all proceedings concerning children in the HKSAR, the welfare of the child is to be the first and paramount consideration of the courts.⁶³

2.5 All of the duties, rights and authority that a parent has in respect of his or her child are comprised in the legal status of "guardianship." When a child’s parents are married, they both share guardianship of the child and so have equal parental rights and authority.⁶⁴ When the father is not married to the mother, he is not a guardian unless he has acquired parental rights and authority over the child by court order.⁶⁵

2.6 When a marriage breaks down, the orders available to the court in relation to the arrangements for children include custody orders and access orders.⁶⁶ The most common custody order in Hong Kong is for “sole custody.”

"The effect of the order is to transfer most, if not all, parental rights and authority to the custodial parent exclusively. The non-custodial parent, however, retains rights qua parent (or guardian), e.g., the right to succeed on the child's intestacy, the right as a guardian on the death of the other parent, the right to appoint a testamentary guardian, and to veto adoption."⁶⁷

2.7 Under a sole custody order, the child lives with the 'custodial parent' who has the duty to ensure, protect and promote the best interests of the child, as well as the right to make the major decisions concerning his upbringing. These decisions would include those relating to his education, religion and major medical treatment.⁶⁸

2.8 Other types of custody orders include "split orders," where custody of the child is given to one parent and the daily care and control is given to the other, and joint custody orders, where custody is given to both parents but the daily care and control is given to just one of them. This latter type of custody order "symbolises divorced or separated parents playing a joint role in the upbringing of the child",⁶⁹ as both parents remain entitled to decide important matters affecting him. It has been noted that these two types of custody order are, at the present time, rare in Hong Kong.⁷⁰

2.9 Generally, the non-custodial parent is granted "access," which means the right to maintain contact with the child. Different types of access are possible, depending on the particular circumstances of the case.⁷¹

"An order for reasonable access leaves the parties to agree on how access is to be arranged. The court may order staying access, that is, the parent with access can have the child staying with him or her during the weekends or holidays. Where the parties cannot agree on access arrangements, an order for defined access can be made, detailing access arrangements. Sometimes the court may order that access be supervised (e.g. by the custodial parent or a third party, such as a social welfare officer) or impose conditions on access." ⁷²

2.10 Custody orders or access orders continue to have effect unless a court discharges them.⁷³

Preventing the removal of the child from Hong Kong -

civil law

Injunctions

2.11 A Hong Kong custody or access order normally provides that a child should not be removed from the jurisdiction unless the consent of the other parent has been obtained, or a written undertaking given to bring the child back to the territory.⁷⁴

2.12 Order 90, rule 5(3) of the Rules of the District Court (Cap 336, subsidiary legislation) provides that an application for an injunction may be made ex parte by the parent of a child to restrain the other parent or any other person from removing the child from Hong Kong or out of the applicant's custody, care or control.⁷⁵

2.13 Rule 94(2) of the Matrimonial Causes Rules (Cap 179, subsidiary legislation) also allows for an ex parte application to be made to the court to prevent removal of a child, as follows:

“(2) A petitioner or respondent ... 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.”

2.14 A significant limitation of the injunction remedy, however, is that although it may be granted to an applicant ex parte, it must still be served on the respondent to be effective. This may be difficult to achieve if the respondent is actively avoiding receipt of service.⁷⁶

Wardship

2.15 In Hong Kong, an order of wardship can be sought from the Court of First Instance of the High Court.⁷⁷ Wardship proceedings are unique in civil proceedings in that they are not concerned with the resolution of rights between litigants⁷⁸ but in doing whatever is necessary for the welfare of the child. In theory there is no limit on the court’s power to make orders in this respect.⁷⁹ Consequently, wardship has been described as “the pre-eminent jurisdiction for dealing with abducted children.”⁸⁰

2.16 In general, wardship operates in the following way:

“Once warded, the ward comes under the guardianship of the court (the whole bundle of rights), and a ring of protection is immediately thrown around the ward. So long as the minor remains a ward, no major decisions affecting the child can be taken without the consent of the judge.”⁸¹

2.17 The unique advantage of wardship in 'time of the essence' situations like parental child abduction - is that the child becomes a ward of the court immediately upon the making of the application. This occurs when the summons is issued to ward the child.⁸² Another advantage of wardship is that it can be used to prevent the child from being removed from the jurisdiction until the consent of the court has been obtained, as to do so would constitute contempt of court.⁸³

2.18 Wardship has also been used to secure the return of a child already abducted,⁸⁴ and to provide a remedy for non-parents who would otherwise have no legal standing in relation to an abducted child.⁸⁵

Seek and find order

2.19 Also within the context of wardship, the English Court of Appeal, in Re B (Child Abduction: Wardship: Power to detain)⁸⁶ noted that the court was entitled to make a 'seek and find order' under its inherent jurisdiction. The court stated that a seek and find order, supported by a bench warrant, was a useful method of bringing to court a parent, other relative or friend who was believed to have the child or know of his whereabouts and to be party to his removal or retention. The court added, however, that once the person had appeared before the judge, the purpose of the bench warrant was effected. Consequently, unless the person was in contempt of court, there was no power to continue to detain him so as to provide an incentive for someone under his control to disclose the whereabouts of the child, or to compel him or his associates to produce the child.⁸⁷

Habeas corpus

2.20 The legislation dealing with writs of habeus corpus is contained in section 22A of the High Court Ordinance (Cap 4). A writ of habeus corpus can be applied for where it is alleged that a person is being unlawfully detained. The Court of First Instance can then order that the body of the person be produced and the grounds for his detention be certified by the person detaining him. If the person to whom the order is directed fails to comply or appear before the court, then the court may order his arrest and the police will then bring him to court. As habeus corpus has generally been invoked in cases of persons unlawfully detained by the police or in a prison, it does not appear to be an appropriate remedy to bring a parent and child before the court.

Protection of Children and Juveniles Ordinance (Cap 213)

2.21 The Protection of Children and Juveniles Ordinance (Cap 213) provides civil and criminal remedies for the protection of children. Under section 26 of the Ordinance, it is an offence, punishable by two years imprisonment, for any person to take a child or juvenile unlawfully out of the possession of, and against the will of, the parent or guardian.⁸⁸

2.22 Section 35 of the Ordinance, which deals with protecting children and juveniles from moral or physical danger, gives power to the Director of Social Welfare to make an order regarding control or custody where the child is about to be taken out of Hong Kong by force, threats, false pretences and other forms of coercion. Historically, this section was designed to prevent prostitution, but it does give power to the Director to intervene in an emergency case if a child is being kidnapped and the police are hampered by their lack of powers.

2.23 Section 44(1) of the Ordinance gives a power of entry and search to the Director “for the purpose of ascertaining whether there is therein any child or juvenile who is or may be liable to be dealt with under the provisions of this Ordinance.” The Director is also empowered under section 44 “to remove any such child or juvenile to a place of refuge, a hospital or such other place as he may consider appropriate.” He must first have secured a warrant from a magistrate. Within 48 hours, the child must be brought before the Juvenile court under section 34(1) or 34C.⁸⁹

2.24 These provisions may be useful where a custodial parent is trying to trace a child who is suspected of having been abducted by the non-custodial parent. The difficulty is that the Director cannot exercise these powers unless he would have grounds for taking care and protection proceedings or other proceedings.

2.25 Similarly, another related provision is section 34E of the Ordinance, which allows a police officer⁹⁰ to detain a child who is suspected of being "in need of care or protection"⁹¹ and to deliver him to a "place of refuge"⁹² or to such other place as he may consider appropriate. A child is deemed to be in need of care or protection if: he has been or is being assaulted, ill-treated, neglected or sexually abused; or his health, development or welfare is being neglected or avoidably impaired; or he is beyond control to the extent that harm may be caused to himself or others.

2.26 Where the child's health, development or welfare is at risk (which is the circumstance likely to be closest to the parental child abduction situation), the police may only act if the child has already been subject to recent investigation by the Director of Social Welfare (as to whether he may be in need of care or protection) and Social Welfare has called for an assessment of the child to be carried out:⁹³

Preventing the removal of the child from Hong Kong – criminal law

Kidnapping

2.27 Theoretically, at common law a parent can be found guilty of kidnapping his own child. The House of Lords in R v D⁹⁴ held that the common law offence of kidnapping in relation to children under 14 remained unaffected by the statutory offence of child stealing, so that where the ingredients of the offence, namely the taking or carrying away of one person by another by force or fraud without the consent of that other person and without lawful excuse, were proved, an offence was committed. However, their Lordships did not want to encourage prosecution for this offence:

“[I]n general, it is desirable, as a matter of policy, that the conduct of such parents [who snatch their own children in defiance of a court order relating to their custody or care and control] should be dealt with as a contempt of court, rather than as the subject matter of a criminal prosecution. The latter method of dealing with the problem should, in my view, only be used in exceptional cases, where the conduct of the parent concerned is so bad that an ordinary right-thinking person would immediately and without hesitation regard it as criminal in nature.”⁹⁵

2.28 We do not consider that prosecuting parents for the common law offence of kidnapping would be useful, except in the most blatant cases.⁹⁶

Child stealing

2.29 If a child, under 14 years of age, is taken away from his parent or guardian, a person can be charged with child stealing contrary to section 56 of the Offences against the Person Act 1861. This has been incorporated into Hong Kong law by section 43 of the Offences against the Person Ordinance (Cap 212). As it is a serious offence, a police officer has the power to arrest any person whom he suspects of committing this offence.

2.30 However, the English Court of Appeal explained in R v D,⁹⁷ that Parliament had intended in 1861 that neither a father nor a mother should be prosecuted for child stealing, as it had inserted a proviso giving a defence to a person claiming bona fide possession of the child.

2.31 Section 126 of the Crimes Ordinance (Cap 200) provides for an offence of abduction of a girl under 16 against the will of her parent or guardian. The likely purpose of this provision was to stop girls from being kidnapped and forced into prostitution. It is therefore apparent that prosecution either for this offence or for child stealing would not be useful or appropriate ways to deal with cases of child abduction arising from parental disputes.

False imprisonment

2.32 A prosecution for false imprisonment was successfully brought in the R v D⁹⁸ case. This offence is committed when a person unlawfully and intentionally or recklessly restrains the freedom of movement of another from a particular place. If the child is voluntarily accompanying the abducting parent however, as is likely to be the case in the majority of parental child abduction situations, there may be difficulties in sustaining a prosecution even though the removal of the child may have been unlawful under custody orders or under the Hague Convention.

Contempt of court orders

2.33 The only remedy for breach of a custody order or an access order is contempt of court.⁹⁹ (Breaches of orders made by the court pursuant to its wardship jurisdiction also constitute contempt of court.) Contempt is only useful if the offender is still within the jurisdiction and the original order which he breached was served on him prior to the making of the application for committal for contempt. Unfortunately, by the time all this is done, he may have already left the jurisdiction with the child.

Powers to arrest or detain

2.34 The police cannot stop or detain a person unless he acts in a suspicious manner and is suspected of having committed an offence or has actually committed an offence.¹⁰⁰ The police have no power to enforce an injunction as it is a civil remedy; however, they may have a power of arrest if a breach of the peace is committed when an ex parte order of the court, such as an injunction, is being served on the respondent. The police also have a power of arrest if a person has already been committed for contempt of court. Any person who breaches an injunction may be committed for contempt and a person who has knowledge of an injunction and assists in its breach may also be guilty of contempt.¹⁰¹

2.35 There does not seem to be a limit on the term of imprisonment that the District Court and the Court of First Instance may impose for contempt, though section 21A of the High Court Ordinance (Cap 4) provides for committal for a maximum of three months for enforcement of a civil claim for the payment of money.

2.36 The Immigration Department can only prevent a child being removed from Hong Kong when they have a sealed copy of the order prohibiting removal in their hands. They cannot stop someone leaving Hong Kong if no order prohibiting removal has been made, provided he has a valid travel document.

2.37 There are powers under section 26 of the Immigration Ordinance (Cap 115) for a chief immigration officer to detain a person for not more than 48 hours if he is satisfied that inquiries are necessary for the purposes of the Immigration Ordinance, and that the person may abscond if not detained. However, this is not a general power to detain for inquiries.

Chapter 3

Child abduction amongst

Hague Convention countries

_____________________________________

Introduction

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.¹

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.² This chapter examines the scope and operation of the Convention.

Overview of the Hague Convention

Relevant provisions

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 1997.³

Contracting states

3.4 The Convention is currently in force in the Hong Kong SAR and 71 other jurisdictions.⁴

The Central Authority

Return of the child

3.5 A contracting state must designate a central authority for the purposes of the Hague Convention⁵ to take all appropriate measures to obtain the voluntary return of a child abducted from or to that state.⁶ In Hong Kong, the Central Authority is the Secretary for Justice.⁷ 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.⁸ 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.

Access rights

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.⁹

Legal aid

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 26.3,¹⁰ so that the costs are not obliged to be borne by the Secretary for Justice¹¹ “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)”.¹²

Cases to which Convention applies

Wrongful removal or retention in breach of rights of custody</