The Hague Convention and its effect on child abduction cases in Hong Kong188月2017
Objectives of the Convention
The Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) is given effect in Hong Kong by the Child Abduction and Custody Ordinance (Cap. 512) (“CACO”). The Convention, and more specifically in Hong Kong CACO, are being invoked with increasing frequency as a result of the ease and affordability of global movement.
The main aim of both the Convention and CACO is to restore the status quo when a child is wrongfully removed from their country of habitual residence in breach of a parent’s rights of custody and / or access. This threshold for proving a child was (or children were) wrongfully removed is fairly low, and once proven the burden shifts to the removing parent to establish a defence, of which there are only five, to the return of the child to its country of habitual residence. These defences are discretionary, and are as follows:
1. The child is settled in its new environment and judicial proceedings have not been launched within 1 year of the wrongful removal;
2. The complaining party was not actually exercising his or her custody or access rights;
3. There was consent or acquiescence by the complaining party;
4. There is a grave risk of harm to the child if returned; and
5. The child objects to being returned.
After consideration of the above defences many cases may seem fairly black and white, particularly to a non-removing parent. However, there are unfortunately a number of challenges facing non-removing parents that increase the stress of conducting Hague proceedings.
Non-removing parent not in Hong Kong
The first, and possibly most obvious hurdle, you are in a different country not only to your child, but also the court in which the Hague proceedings will be conducted. Particularly where there is a significant time zone difference it can be a challenge to share information with and provide timely instructions to your solicitor.
In Hong Kong the court is required to set a timetable for proceedings, including the submission of all evidence and submission, within a six week time frame ending in trial. During this time things move very quickly and quick and clear instructions are imperative. Attempts to mediate the matter will often be encouraged by the court, which process is also greatly assisted if both parties are in Hong Kong.
Although we understand that being away from home and away from the support of family and friends is daunting, and although personal attendance of the parents at court in Hague proceedings is not required, having both parents in Hong Kong for the duration of proceedings certainly does help things run more smoothly and in a more timely fashion. More importantly, it allows the non-removing parent the opportunity to make arrangements or application for access with the child whilst the proceedings are still ongoing which we can assist with.
Final order in Hong Kong – effect and enforcement
What is also often not considered is that the journey is not yet over once an order for return of the child has been obtained in Hong Kong. This is so as orders for the child’s return can be made subject to various undertakings that need to be satisfied by either or both parties, which, although not always difficult or burdensome to satisfy in and of themselves, require time and effort on top of the significant amount expended to reach the final stages of proceedings.
We understand well the stress, worry and heartache involved for parents litigating cases like these, and we are committed to seeing each case through to its conclusion, not just the conclusion of the Hong Kong proceedings. This includes assisting in the satisfaction of any undertakings required to effect a final order, and liaising with authorities and legal representatives in the country of habitual residence to obtain a mirror order of the Hong Kong final order.
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.
For more information on the Hague Convention and its effects on you or your family, 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.