The Hague Convention on International Child Abduction

According to the Report on International Parental Child Abduction published by the Law Reform Commission of Hong Kong in April 2002, international child abduction is the unauthorised removal or retention of a child across an international border. It usually occurs when there is a relationship breakdown between the parents.

THE HAGUE CONVENTION

The Hague Convention is a multilateral treaty developed by the Hague Conference on Private International Law (HCCH) which aims to provide a procedure to bring about the retained child’s prompt return to the country of their habitual residence. It also seeks to ensure the rights of custody and access under the law of one contracting state are effectively respected in other contracting states.

The key question for the court in determining whether an order for return is granted is whether the child has habitual residence in the retained country i.e. whether the residence of a particular person in a particular place acquired the necessary degree of stability to become habitual (JEK v LCYP [2015] 5 HKC). It is a question of fact, taking the degree of integration and incorporation in a social and family environment into consideration. The quality of the child’s residence, length of stay and reasons for being there are all relevant factors for consideration.

Another point to note is that the Hague Convention is only applicable to the 88 states and 1 Regional Economic Integration Organisation which are signatories to the Hague Convention. These such countries include the USA, the European Union and some countries in Asia. For non-signatories to the Hague Convention, neither visitation rights nor order of return can be granted.

POSSIBLE DEFENCES FOR THE REMOVING PARENT

If wrongful removal or retention is established, the removing/retaining parent may establish a defence. There are five types of defences available but whether or not they can be successful is in the entire discretion of the court. The defences are:

  1. Notwithstanding that proceedings for return of the child were commenced after one year has elapsed from the date of the wrongful removal or retention, the child is now settled in its new environment;
  2. The complaining party was not exercising his or her custody or access rights;
  3. There was consent or acquiescence by the complaining party to the wrongful removal;
  4. There is a grave risk of harm to the child if s/he is returned;
  5. The child objects to being returned, and s/he has attained an age and degree of maturity at which it is appropriate to take account of his/her views;

RECENT HONG KONG CASES

A parent must have custodial rights over the child to make an application under the Hague Convention. However, this may prove difficult for unmarried fathers in Hong Kong because they do not automatically have custodial rights. Thus, they would usually first apply for the child to become a ward of Court and for the necessary custodial rights before making an application under the Hague Convention.

This was the case in Re ALWB (Minor: Wardship) [2021] HKCI 899, which was heard and decided during the Covid-19 pandemic. The child (referred to as “AB”) was born, resided and educated in Hong Kong for 6 years while his parents were unmarried. The Mother took AB to Australia, kept him there against the Father’s wishes and refused to respond to his requests for return to Hong Kong.

The Father started proceedings in Hong Kong for AB to be made ward of the Court of First Instance (“CFI”) and for the return of AB to Hong Kong. Taking into consideration AB’s situation and his relationship with his father, the CFI found that AB had a full degree of integration in a social and family environment in Hong Kong. Therefore, the CFI held that it was in the best interests of AB to legalise the rights of his Father and for AB to be returned to Hong Kong.

In relation to custody, care and control of AB, it is not disputed that a Hong Kong court’s order over custody, care and control of a child will not be automatically recognised or enforced in Australia. The converse is also true. Accordingly, notwithstanding obtaining an order from the CFI, the Father may have to take out proceedings for a “mirror” order in Australia to be able to enforce it against the Mother.

In the case of BMC v BGC [2020] HKCA 317 which was also heard and decided during the Covid-19 pandemic, the Father’s appeal for return of his daughter (“B”) from Hong Kong to the USA was dismissed as the judge was not satisfied that immediately prior to 8 October 2019 (being the date of wrongful retention of B in Hong Kong as alleged by the Father), the habitual residence of B was the USA.  The judge held that B’s habitual residence all along remained in Hong Kong.

CHILD ABDUCTION CASES DURING THE COVID-19 PANDEMIC

Compared to other countries, there were fewer international child abduction cases in Hong Kong during the Covid-19 pandemic, but the court’s decision in granting an order for return (vs. not granting such order) was quite evenly distributed. This shows that the Covid-19 pandemic has not had a significant impact on the courts in Hong Kong when deciding whether to grant an order of return.

As a result of the pandemic, HCCH has prepared a useful Toolkit to assist countries in returning children to their place of habitual residence. We expect that with this Toolkit a more ‘child focused’ approach may be taken to ensure that child abduction cases are dealt with as promptly as possible.

Jurisdictions

Executive Partner and Head of the Family and Divorce practice, Gall

With over 20 years in family law practice, Caroline McNally has considerable experience in complex financial disputes with substantial assets, as well as difficult children matters including relocation cases. Her international experience has equipped her to handle the most complex of cases and advise on matters with cross-jurisdictional elements.

Associate, Gall

Chantelle was admitted as a Solicitor of Hong Kong in 2009. Her practice focuses on family law matters including divorce and separation, child custody, permanent removal of children, wardship and injunctions, financial disputes and nuptial agreements. Prior to joining Gall, Chantelle worked in a specialist family law firm for 6 years. She has experience in dealing with clients from different jurisdictions and walks of life.