Custody of Children in Relationships Across the Border

On 20th June 2017 the Secretary for Justice in Hong Kong and the Executive Vice President of the Supreme People’s Court of the PRC, signed an Arrangement on Reciprocal Recognition and Enforcement of Civil Judgments in Matrimonial and Family Cases. The need for a clear and effective legal regime, similar to that which already exists in respect of civil claims, was becoming increasingly obvious with the growing number of cross border relationships and marriages. In 2016, 35 percent of marriages in Hong Kong involved a party from the PRC. Since the handover of Hong Kong from British rule to the PRC in 1997, there has been a significant increase in the number of families with connections in both jurisdictions. Family members are often born and marry in one place and move to work in the other, they buy property in both places and sometimes travel weekly between the two, effectively living and working in both jurisdictions. Children are born and schooled in either or both and often families will be Chinese citizens but also hold a Hong Kong Permanent Residency.

However, until the agreement in June, China would not recognise a Hong Kong divorce decree and the orders of Hong Kong courts in respect of families were not enforceable. This provided real difficulties for many families as cross border disputes are commonplace and the position of vulnerable children acutely felt. In addition, although Hong Kong signed the Hague Convention and incorporated its provisions into the Child Abduction and Custody Ordinance Cap. 512 in 1997, the PRC has yet to sign and there has been real concern in Hong Kong regarding the ability of parents to find their children should one parent decide to unilaterally take a child across the border.

This was highlighted recently in the Court of Appeal in Hong Kong: L v. L (CACV 204 of 2016 1st November 2017). This case involved a mother who was a Chinese national but holding a “one way permit” which allowed her to stay in Hong Kong and a Hong Kong born and bred father. Here the child was clearly habitually resident in Hong Kong prior to the mother leaving for China without the consent of the father, and the whereabouts of the mother and child remain unknown. She left shortly after receiving the divorce papers and therefore had been effectively served in Hong Kong. The mother had not contested the jurisdiction of the Hong Kong court and the father was granted interim custody of the child. He then applied in the Lo Wu People’s Court in Shenzhen, who declined jurisdiction on the basis that the Hong Kong court had already assumed jurisdiction in the matter. The father successfully appealed to the Court of Appeal for the interim custody order to be made final. Such order, however, remains unenforceable in China. Whilst the Reciprocal Arrangement has been signed, it has no retrospective effect and only applies to orders made after the effective date. This will be when both sides have completed their respective internal procedures. Specifically, it will be implemented in the Mainland by way of judicial interpretation and in Hong Kong by way of legislation. It is anticipated that this will happen before the end of 2018. In the meantime, the father in this case has not seen his five-year-old son since December 2014 with no real prospect of seeing him in 2018, despite having full custody of the child.

Headway has been made, therefore, here in Hong Kong, but the problem of getting a child out of China remains a problem for other jurisdictions. This has been recognized by the High Court in England & Wales recently in DO and BO (Temporary Relocation to China) [2017] EWHC 858 (Fam) in which a mother applied for permission to take her two sons to China for a holiday.

The case concerned two boys (eight and six), their Australian/UK father and Chinese mother. Both boys held dual British and Australian citizenship and neither held Chinese citizenship. They had been born and brought up in England, with visits in the past to Australia and China to see relatives.

Baker J held that it was not in the boys’ interests to be taken to China at this stage, given the lack of sufficient safeguards to ensure that they would be returned and the dire consequences if they were not. He cited the leading Court of Appeal authority on the law relating to temporary relocation of children (Re R (A Child) [2013] EWCA Civ 1115) and drew on earlier authorities, in particular the decisions of the same Court in Re K (Removal from the Jurisdiction: Practice) [1999] 1 FLR 1084 and Re M (A Child) [2010] EWCA Civ 888, Patten LJ observed (at para 23):

“The overriding consideration for the court in deciding whether to allow a parent to take a child to a non-Hague Convention country is whether the making of that order would be in the best interests of the child. Where (as in most cases) there is some risk of abduction and an obvious detriment to the child if that risk were to materialise, the court has to be positively satisfied that the advantages to the child of her visiting that country outweigh the risks to her welfare which the visit will entail. This will therefore routinely involve the court in investigating what safeguards can be put in place to minimise the risk of retention and to secure the child’s return if that transpires. Those safeguards should be capable of having a real and tangible effect in the jurisdiction in which they are to operate and be capable of being easily accessed by the UK-based parent.”

The court also stressed the importance of obtaining expert legal advice in respect of the foreign jurisdiction in these scenarios. When in doubt, the court should err on the side of caution and refuse to make the order. In this case, the expert advice on Chinese law was sought from Ms Flora Huang of the Shanghai Promise Law Firm. She confirmed that China was not a signatory to the Hague Convention and that foreign orders for custody were not recognised or enforceable, but may be brought in evidence in the PRC. The father would have to bring the case to the Chinese Court de novo, but it was some comfort that Chinese Courts have a similar aim in respect of children’s welfare. Ms Huang confirmed that the PRC court would not issue a mirror order without first considering the case in full. Although both the father and the mother had the right to start proceedings regarding their children in the PRC, such proceedings would be conducted in Chinese with application of Chinese law and there was no legal mechanism to apply for or issue urgent or emergency orders in family law cases in the PRC.

The expert also made useful observations in respect of the mother’s Chinese nationality. As a Chinese citizen, the mother had sufficient jurisdictional connection to start a case in the PRC, even though she has been habitually resident in England. However, she would lose the ability to claim jurisdiction as of right if she renounced her Chinese citizenship: she would have to complete one full year of uninterrupted residency and although she could reapply for citizenship, the failure rate was “extremely high”. Abandonment would be considered a permanent decision and if she renounced her citizenship, and travelled to China on her British passport, she would be subject to Chinese laws and regulations concerning foreign aliens. The ability of a Chinese citizen to hold more than one nationality is explicitly precluded by Chinese domestic law.

Despite the dire consequences therefore for a Chinese mother should she renounce her citizenship, the court still found on balance that she might decide to make the move in view of a the turbulent nature of the parties’ relationship, her contacts and family in China and her ability to find work and stability there, and therefore that the risk to the children was too high. The court looked at the consequences of such a retention for the boys and found that it would be “devastating” for them - the judge commenting, “apart from the company of each other and their mother, they would be deprived of everything in their lives to date - friends, home environment, school, the culture in which they have been brought up, and, above all else, the relationship with their father”.

It is noteworthy that the children’s guardian had, on balance been in favour of their trip in order to enable the boys to explore their Chinese heritage and to get to know their maternal family.

Bearing in mind the number of Chinese nationals worldwide, the lack of reciprocity presents a significant problem. Under article 5 of the Nationality Law of the PRC “any person born abroad whose parents are both Chinese nationals or one of his parents is a Chinese national shall have Chinese nationality” although “ a person whose parents are both Chinese nationals and have settled abroad, or one of whose parents is a Chinese national and has settled abroad, and who has acquired foreign nationality at birth, shall not have Chinese nationality”. Therefore the boys in this case were not Chinese nationals but it is a potential problem for many individuals in this increasingly integrated world.

Clearly the best result for such cases would be for China to sign the Hague Convention on Child Abduction. Failure to do so does not just cause problems, of course, for parties with connections in China. There appears to be a general trend in England and Wales whereby the Family Court is declining to grant permission for temporary removal of children for holidays to non-Hague countries. In his article “On the Side of Caution” for Family Law Journal November 2017, James Copson comments on such applications and argues that more could be done internationally to ensure that a ‘safety-first’ policy, which results in families being cut off from their roots, is not the default position of the court.


Partner, Withersworldwide

Billy is a partner in the family team.

Billy advises on all aspects of family law including, but not limited to, divorce and separation, nuptial agreements, children custody, and complex financial disputes with substantial assets.

Professional Support Lawyer, Withersworldwide

Philippa is a professional support lawyer in the divorce and family. She is a matrimonial lawyer dealing with all aspects of family law, information management, legal writing and publications.