THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL ABDUCTION 1980 Dennis C. K. Ho Solicitor, Hong Kong Macau, 25 June 2015

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The Hague Convention on the Civil Aspects of International Abduction, was signed in Hague on 25 October 1980, which “is designed to counter the growing problem of the civil abduction of children across international borders.”

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In Hong Kong, the Child Abduction and

Custody Ordinance (the Ordinance) was enacted in May 1997 to implement the Convention after its extension to Hong Kong. The Ordinance took effect on 5 September 1997.

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Most of the provisions of the Hague Convention are incorporated into Hong Kong law by the Child Abduction and Custody Ordinance in 1997.

Section 3 of the CACO provides that the provisions of the Convention as set out in Schedule I shall have the force of law in Hong Kong.

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Application of the Hague ConventionHague Convention only applies to the Contracting States, i.e. those specified by an order made by the Chief Executive of the HKSAR and published in the Gazette under section s.4(1).

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Application can be made to the Court of First Instance under the CACO for the return to the country of the child’s habitual residence who has been wrongfully removed to or retained in Hong Kong.

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Four basic requirements for the application

In S v S [1998] 2 HKC 316, Waung J distilled from the Convention four primary requirements that had to be fulfilled by the applicant before the mandatory return obligation arises. They are:(1) child is under 16 (art. 4);(2) child was habitually resident in the requesting state before the removal or retention (art 3(a) and art 4);

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(3) the removal or retention of the

child was in breach of the rights of custody of the applicant (art 3(a));

(4) the right of custody was exercised by the applicant at the time of removal or retention (art 3(b)).

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Application for return of children

Each State has a Central Authority. Application should be made to the Central Authority of the child’s habitual residence or the Central Authority where he is now.

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Proceedings for return of childrenThe main object of the Convention is to secure the prompt return of the child and if a decision is not made within 6 weeks from the date of commencement of the proceedings, a statement for the reasons of delay may be required. (Art. 11)

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Upon received a notice of wrongful removal of a child, the court should not decide on the issue of rights of custody until it has decided not to return the child or an application is not made within a reasonable time after the receipt of the notice. (art.16)

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There are two types of cases according

to the period of abduction to the commencement of proceedings and they are:

(a) less than one year – return forthwith(b) more than one year – still return

unless child is settled (art. 12)

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The Hong Kong Judiciary always gives priority in dealing with an application under the Hague Convention.

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A Recent Case M v E - HCMP 392 of 2015 The originating summons was formally

filed on 16 February 2015.  The Children were said to have been wrongfully removed on 1 July 2014, from Brazil where they were habitually residing. 

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The disputed issues were: (i) Was there wrongful removal/retention of

the Children by the Father under Article 3 of the Convention, namely:

(a) Whether the Removal wrongful? (b) Even if the Removal was not

wrongful, whether retention of the Children in Hong Kong beyond 5 October 2014 (“Retention”) wrongful?

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(ii) Were the Father’s objections to return, based on acquiescence under Article 13(1) (a) or grave risk under Article 13(1) (b) made out?

(iii) In considering issue (i), the essential question was whether the Mother had rights of custody under Article 3 of the Convention immediately or at the time of the Removal/Retention.

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This case was set down to be heard by

Madam Justice Chu for three days i.e., on 19,20 and 23 March 2015

Judgment was delivered on 2 April 2015

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At the end of the judgment, the following orders are made: -

(i) The Children shall be handed over to the Mother by the Father and they shall return to Brazil accompanied by the Mother as soon as practicable.

(ii) The Father shall pay for the travel costs of the Children and the Mother for their return to Brazil.

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(iii) The Father shall pay for the Mother’s air fare to Hong Kong and her costs of accommodation in Hong Kong for the present proceedings.

(iv) There be leave for the Mother to remove the Children out of jurisdiction of Hong Kong to Brazil and the Children’s passports shall be released to her forthwith.

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The Father’s Appeal M v E , CACV 75 of 2015 The appeal was heard on 12 May

2015 Judgment was delivered on 5 June

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The Father’s appeal was dismissed and ordered to pay costs to the Mother.

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Cheung JA in the judgment said this,

“It is worth repeating that the underlining objective of the Convention is to secure the prompt return of the children to their place of habitual residence.  This approach is considered to be in the best interest of the children.” (para. 5.5)

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Another Recent Case JEK v. LCYP  HCMP 468 of 2015 The Father filed the Originating

Summons on the 26 February 2015 The case was heard before Madam

Justice Chu on 27 April 2015 Judgment was delivered on 8 May

2015

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The Father has succeeded with most of the issues save for the children’s objection to return to New Jersey.

Madam Justice Chu said, “Having considered all the circumstances of this case, I exercise my discretion in favour of the Children remaining in Hong Kong at the present stage.” (para. 145)

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EXPERIENCE OF A HK LAWYER IN DEALING WITH HAGUE CASES

Difficulties for lawyers in acting for left behind parents

(1) Taking instructions (2) Financial difficulty (3) Leave from work (4) Returning child to requesting state (5) Legal Aid assistance

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Difficulties for lawyers in acting for the taking parents on returning the child to requesting state

(1) Dealing with criminal charge (if any) (2) Living arrangement on return (3) Maintenance for child and/or parent (4) Visa problem (5) Legal representation

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Big Problem – if child is taken to non

contracting states

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Thank You!