Legal update: Child abduction in Hong Kong: Is it ever okay?23Sep2015
Married parents who are contemplating a divorce often ask lawyers whether they can take their children abroad for a holiday against the will of the other parents. The answer is no.
In Hong Kong married parents have joint custody of their children. Both parents make decisions about their children’s lives, which mean they should agree.
If a wife takes the child of the family abroad against her husband’s will, she will infringe the 1980 Hague Convention on the Civil Aspects of International Child Abduction which applies in Hong Kong and more than 80 other contracting states. Her departure with the child will be considered a wrongful removal of the child under the Hague Convention as it infringes the husband’s custody of the child.
If he knows of the plan to remove the children in advance, the husband can prevent the wife from taking the child abroad against his will by applying to the High Court in Hong Kong for an injunction to prevent the child’s departure or start wardship proceedings to make the child a ward of the court. A ward cannot leave Hong Kong without the court’s approval. The wife will incur criminal liability for contempt of court if she takes a child who has become a ward abroad without the court’s approval. The wife will probably be stopped at the border of Hong Kong by officers of the Immigration Department, who are told of wardship orders promptly after they are made.
If the wife and the child arrive in another contracting state (most of the major countries in the world) the husband can apply there for the child’s return. The wife does not incur criminal or civil liability for infringement of the Hague Convention, but she may incur criminal liability in Hong Kong for child abduction.
If these issues affect you, please call Joanne Brown of Tanner De Witt, who practises in this sensitive legal area. You may also refer to our recent article on Child Custody Evaluation.
The above is not intended to be relied on as legal advice and specific legal advice should be sought at all times in relation to the above.
If you would like to discuss any of the matters discussed in this brief article, please contact:
Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.