While children are the most precious thing in the eyes of the parents, they usually become one of the most contentious issues during a divorce. It is common for married couples contemplating a divorce to want to take their children abroad for long-term settlement. Can they do so? The answer is basically no, even they may think it is for the benefit of the children. Is there any way to stop them from doing so, or even procure the return of the child?
What can be done to stop the wife / husband
from removing the child?
If your child is under the age of 18, and there is a court order concerning the custody of or access to the child in force or there is proceeding concerning the child’s custody or access pending, the law prohibits any parent removing the child out of Hong Kong without the consent of the other parent.
Under the Child Abduction and Custody Ordinance, you may apply to the court for an order prohibiting the removal of the child out of Hong Kong by the other parent. One will attract criminal liability for contempt of court if he/she takes a child abroad after the court has granted such prohibition order. Also, he/she will probably be stopped at the border of Hong Kong by officers of the Immigration Department who will be informed of such orders promptly after the grant. However, the application under this Ordinance can only be done before the child is abducted by the other side, what if the child is already moved out of Hong Kong, or the other side simply ignore the prohibition order and go ahead to remove the child?
Hong Kong, among 80 other contracting states, is a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”). This Convention is a multilateral treaty developed by the Hague Conference to secure the prompt return of children wrongfully removed to or retained in any contracting states, and to secure the rights of custody and of access under the law of one contracting state are respected in other contracting states. Under the Convention, the Central Authority, the Department of Justice in Hong Kong has to co-operate with other Central Authorities such as taking appropriate measures to discover the whereabouts of a child and prevent further harm to the child. While this Convention does cover many contracting states, China is yet to be one of the parties to this Convention. So, this Convention will not be helpful if the children are removed to Mainland China.
Married couples have joint custody of their children and thus they have to make important decisions about their children’s lives together. If one of them abducts the child abroad against the other’s will, this act is considered a wrongful removal of the child under the Hague Convention as it infringes the other’s custody right of the child. The contracting states including Hong Kong have an obligation to secure the prompt return of the child to the State in where the child was habitually resident, Hong Kong in our case.
However, it should be bear in mind that this Convention ceases to apply once the child reaches the age of 16, and if more than one year has passed between the abduction of the child and the commencement of the proceedings, no return will be ordered if it is demonstrated the child is now settled in the new environment.
Major exceptions to ordering a return
There are several major exceptions that allow the contracting state to refuse to return the child which include: Firstly, when the non-abducting parent has led the other parent to believe that he/she is not going to assert his/her rights to the return of the child, a return will not be ordered. So, when there is acquiescence or consent given by the non-abducting parent, a return may not be ordered. Secondly, if it is shown that grave risk will be posed to the child if the child is returned, a return will not be ordered as well because the Court always has to balance different factors and decide for the best interests of the child. Thirdly, the voice of the child also matters, so if the child objects to being returned, a return may not be ordered. This has to depend on whether the child has attained an age and degree of maturity appropriate to take account of views.
How to make an application
for returning the child?
The non-abducting parent should make an application to the Department of Justice as soon as possible bearing in mind the 1-year time limit. One should supply the identity of himself/herself, date of birth of the child, grounds for the claim, and all available information relating to the whereabouts of the child and the identity of the person with whom the child is presumed to be. One should be prepared to establish (1) the child’s habitual residence is in Hong Kong, (2) the removal from Hong Kong constituted a breach of custody rights and (3) one is actually exercising such custody rights.
If you are divorcing your husband / wife and you wish to bring your kids away from Hong Kong, be it for migration or for study, you should try to get the consent from the opposite party or at least discuss with them. This can help to avoid the time and cost to deal with the aforementioned proceedings, and most importantly, it is for the best interest of the children.
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|Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.|
|Published by ONC Lawyers © 2016|