International Family Law is expanding as people travel more and spend time with people from different countries. The chances increase even further when such issues involve expat communities around the world. International personal relationships can produce an abundance of conflict and litigation. It is hard enough for people to live together when they share a similar background, but it might become harder when they are from different countries, cultures, religions, ethnicities, educational experiences, languages, traditions, and family structures. The resulting pressure may become particularly strong when international couples have children and disagree about such matters as child-rearing methods, the role of in-laws, education choices, religious matters, and ultimately the desire of one of them to take the children “back home” to his/her country of origin.
Parental child abduction often occurs when the parents separate or begin divorce proceedings. One parent may take or retain the child from the other to gain advantage in the pending child-custody proceedings. Another instance would be arising when a parent refuses to return the child at the end of an “access visit” or flee with the child to prevent an access visit or fear of domestic violence and abuse.
Depending on the laws of the country in which the parental abduction occurs, this may or may not constitute a criminal offense. For example, removal of a child from the UK for a period of 28 days or more without the permission of the other parent is a criminal offense. In many states of the United States, if there is no formal custody order, and the parents are not living together, the removal of a child by one parent is not an offense. In Australia the absconding parent is awarded with the Family Court’s presumption of “residency status quo” after keeping the child for a minimum of three weeks.
In many instances, international child abduction occurs when a parent, relative or acquaintance of a child leaves the country with the child in violation of a custody decree or visitation order. Another related situation is retention, where children are taken on an alleged vacation to a foreign country and are not returned.
While the number of cases of international child abduction is growing, these are often the most difficult to resolve due to the involvement of conflicting international jurisdictions. As already briefly highlighted in our previous article “Domestic Violence in Hong Kong and Injunctive Relief in Matrimonial Proceedings”, many parental abduction cases involve mothers who often allege domestic violence. Even when there is a treaty agreement for the return of a child, the Court may be reluctant to return the child if such could result in the permanent separation of the child from their primary caregiver.
The Hague Convention on the Civil Aspects of International Child Abduction is an international human rights treaty and legal mechanism to recover children abducted to another country. The Hague Convention does not provide relief in many cases, often resulting in some parents hiring private parties to recover their children.
Although the Courts in the country in which the child is located have exclusive custody jurisdiction from their own perspective, if the child is taken to visit another country, the Courts there will often have jurisdiction under that country local law to determine what is best for the child. In addition, these cases often have a strong international law component. More than 80 countries are signatory of The Hague Convention on the Civil Aspects of International Child Abduction (the “Convention”), which requires that children who have been “wrongfully taken” or “wrongfully retained” overseas should normally be returned promptly to their country of habitual residence.
In reality, international child custody cases often yield complex and messy conflicts between the laws and Courts of different countries, demonstrating serious clashes of societal views about culture, religion, gender roles, parental rights, and children’s rights, as well as of the role of the legal system in intervening in disputes about children.
The situation in Hong Kong
The Convention entered into force in Hong Kong in September 1997, and was incorporated into Hong Kong law through the enactment of the Child Abduction and Custody Ordinance (Cap. 512) (“CACO“). According to the provisions of the CACO, the provisions of the Convention as set out in Schedule 1 to the CACO and are enforceable in Hong Kong. Every signatory country of the Convention designates a Central Authority to discharge the relevant functions, which in Hong Kong are held by the Secretary for Justice. The Convention applies to all children habitually resident in the territory and any related signatory country immediately before a breach of custody or access right until a child is 16 years old.
The core scope of both the Convention and CACO is to restore the status quo when a child is unlawfully removed from his/her country of residence and breaches the parent’s rights of custody or access. After proving that a child was wrongfully removed and that and the responsibility is to be born by the removing parent, the obligation is to the return the child to his/her country of residence. The possible defences include proofs that the child is already settled in a new environment and that no judicial proceedings have not been launched in the year following the removal; that the opposite party was not exercising his/her custody and/or access rights; that there was specific consent or acquiescence to remove the child; that a risk of harm exists if the child is returned to his/her habitual residence and that he/she objects returning to the original habitual residence.
Many cases may appear very straight-forward, however there is a series of situations which pose a risk of conducting the Hague Convention proceedings. One of these is when the non-removing parent is not in Hong Kong: in fact, even though the Court needs to set a timetable for the related proceedings, absence from the territory might overcomplicate the situation. Even when an order takes effect and is to be enforced, there might be several difficulties related to connecting with different authorities and legal representatives across different jurisdictions in order to ensure that the child can be brought back to his/her habitual place of residence and join the non-removing parent.
How to prevent child abductions?
One of the key elements might be the sudden presence of warning signs. Parents should be on the alert for sudden changes in the other parent’s life, such as quitting a job or selling a home, that may be made in preparation to relocate. In this case our Family Law team can advise about particular circumstances, including the possibility of obtaining an order that prohibits the child from traveling outside of the territory.
In Hong Kong often we see cases where we might need to contact foreign consulates – in case the child holds dual or triple nationality – and/or get a Court order as preventative measure that might include provisions addressing passports, travel restrictions, or custody. A more extreme option would be to contact law enforcement and provide them copies of any court orders, including custody, protection, and restraining orders, when a serious reason of child abduction risk might be present.
Our team at Hugill & Ip has extensive experience in dealing with Hong Kong family laws, so kindly get in touch with us to find out how we can help.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.