Legal update: The Child Abduction Legislation

19Apr2016

The Child Abduction Legislation (Miscellaneous Amendments) Ordinance 2014 (the “Amendment Ordinance”) recently came into operation on 5 April 2016 to expand the scope of application of the current Child Abduction and Custody Ordinance (Cap 512) (“CACO”) to strengthen the powers of the courts and law enforcement agencies and to better implement the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”).

New orders

Under the Amendment Ordinance, the following new court orders have been introduced to the CACO.  Applications for the orders may be made to the High Court in accordance with the procedures set out in the CACO.  In addition, an application for a prohibition order may also be made to the District Court:

    1. Location Order (section 15 of the CACO):  An order made for the disclosure of the whereabouts or any other circumstances in relation to the location of a child;
    2. Mirror Order (section 15 of CACO): An order for the prohibition of removal of a child from Hong Kong except to the child’s habitual residence or other jurisdictions specified in an order made by a judicial or administrative authority of a Contracting State to the Hague Convention;
    3. Recovery Order (section 17 of CACO); and
    4. Prohibition Order (section 21 of CACO).

The Recovery Order and Prohibition Order

The Recovery Order is an order for the recovery and return of a child to a person specified in the court order.

Under section 17(2) of the CACO, the police may be authorised by the court to take relevant actions for such recovery and for the return or delivery of the child to a person specified within the court order.  Under this section, if the “specified person” to whom the child is to be returned or delivered to cannot be contacted, the Director of Social Welfare is to take appropriate follow up actions and arrangements are to be made for the child to stay at a safe place.

If there is a risk that a child may be removed from Hong Kong in breach of a court order, an order for the prohibition of removal of a child out of Hong Kong (“Prohibition order”) may be applied for.

The applicant should notify the Director of Immigration by delivering a sealed copy of the relevant court order to the Control Support Section of the Immigration Department.  On receiving such notification, an immigration officer who reasonably suspects that the child is about to be, or being, removed from Hong Kong in breach of an order can detain the child. On detention, the child will be transferred into the charge of a police officer, who will then take steps to contact the person specified in the court order.  If the specified person is not contactable within a reasonable time, the police officer will refer the case to the Social Welfare Department for follow up and arrange for the child to stay at a safe place.

It is important to note that in making the above orders, the best interests of the child will always be of utmost importance.

Joanne Brown

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:

Joanne Brown
Partner | Email

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.