Children spirited away to Hong Kong are unlikely to stay

Children spirited away to Hong Kong are unlikely to stay

Any parent who does a midnight flit with their kids will find the city is no legal black hole

Does Hong Kong have an effective legal system that can ensure the return of a child wrongly removed to, or retained in, the SAR by one parent to the other parent in the child's home country?

As a city with a large expatriate population, there is no question that Hong Kong needs such a system.

Hong Kong has been a signatory to the Hague Convention since 1997, and adopted the relevant articles in its Child Abduction and Custody Ordinance (CACO), enacted on September 5, 2007.

Hong Kong is certainly a pioneer in Asia for subscribing to the Hague Convention; Singapore signed up to it only at the end of 2010, and Japan's parliament just approved a treaty in May this year in order to join the convention.

It is also to Hong Kong's credit that it was chosen as the location for the Regional Office for the Hague Conference on Private International Law in Asia-Pacific, which opened last December.

Hong Kong has set a timeline of six weeks from the commencement of legal proceedings by the Secretary of Justice for the return of a child abducted from another Hague Convention signatory jurisdiction.

Applications for return can be made directly to the Department of Justice or through the central authority of the country where the child has been a habitual resident.

Even though our Secretary of Justice is invariably the applicant, they can be replaced by an applicant parent if he or she is prepared to participate in legal proceedings against the respondent parent.

Unless there are circumstances that Hong Kong's High Court believes should preclude it from making an order, any application to return a child will probably be granted if it can be shown the child is a habitual resident of their home country and had been wrongfully removed or detained.

This can be established by the existence of a custody order in favour of the applicant parent granted in the home country, coupled with a breach by removing the child to Hong Kong and refusing to send them back to the custodial parent.

As for the circumstances that may lead to the court refusing to make the return order, these include whether the applicant parent who has custody of the child was not actually exercising custodial rights at the time of the removal or retention, or whether the respondent parent had the consent or subsequent acquiescence of the applicant parent.

The court would also consider whether a return may expose the child to grave risk of physical or psychological harm or would place the child in an intolerable situation.

Objections to being returned made by the child may also be considered if the court accepts that the child has attained an age and degree of maturity.

Applications made under CACO to have a child returned under the Hague Convention remain the most effective procedure for securing the return of a child abducted to Hong Kong, but apply only to children under 16 years of age.

However, only those states listed on the CACO schedule can apply to have a child returned from Hong Kong, and the mainland is currently not on that list.


This article appeared in the South China Morning Post print edition as: Children spirited away are unlikely to stay