There is nothing disheartening than hearing “child abduction” notwithstanding it was committed by a parent of the child, yet these incidents continue to occur and each year, there are several published judgments indicating that the Courts have no alternative but to intervene to determine the welfare of a child. In Hong Kong, child abduction of a parent is governed under the Child Abduction and Custody Ordinance (Cap. 512) (the “Ordinance”) which adopted the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the “Connection”).
Under the Ordinance, the Secretary for Justice is designated as the Central Authority of Hong Kong and shall cooperate with other overseas entities to secure a prompt return of the child, who has been wrongfully removed and retained in Hong Kong or taken overseas. What is defined as wrongful removal or retention of a child is as follows (Article 3 of the above Convention):-
- It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention; and
- At the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised by for the removal or retention.
The two significant terms “removal” and “retention” have been succinctly defined, where the former denotes a child is taken from its place of habitual residence and the latter; when the child has overstayed a limited period of time outside his/her place of habitual residence. Once the wrongful retention/removal is proven, the Court will need to consider the habitual residence of the child to determine whether to order the return.
In the first instance, a child can only have one habitual residence and it is on the burden on the parent seeking return to justify this argument. Similar to other children related legal proceedings, the issue of habitual residence is “child-centered”, to determine what can be done in the best interest of the child. Some considerations to be taken may be stability of residence, which is not merely a matter of intention, but must be determinant from factual questions.
Other considerations may be the quality of residence and integration, such as how long has the child resides there, which may include subjective factors such as intention.
Given the fact-sensitive nature of this type of application, the importance of legal advice cannot be stressed enough. Therefore, if you have discovered that your child was removed and brought overseas by the other parent without your consent, you should immediately consider the above application for the return of the child to safeguard your rights of custody.
Please feel free to contact us at enquiry@hksunlawyers.com for further enquiries.
