Part III - Child Abduction
Child Abduction Law
13.1Part III of the Consultation Paper focuses on the unlawful removal of a child by a parent from the jurisdiction of Hong Kong to another jurisdiction which is a signatory of the Hague Convention on the Civil Aspects of International Child Abduction. Part A will deal with this Convention. Part B outlines the current local criminal and civil law on abduction and removal from Hong Kong. Part C sets out some comparative reforms of the criminal and civil law on abduction.
Part A - Hague Convention
13.2The Hague Conference on Private International Law adopted the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) in 1980. It had been on the agenda as a result of a Canadian initiative.1281 At least 40 countries have become parties to the Hague Convention,1282 including Australia, Canada, New Zealand, the United Kingdom and the United States.
13.3The Child Abduction and Custody Ordinance (Cap 512) was enacted in May 1997 to implement the Hague Convention in Hong Kong. The Convention was extended to Hong Kong by the United Kingdom in June 1997. An agreement had been reached in the Sino-British Joint Liaison Group that the Convention would be extended to Hong Kong and also would continue to apply after resumption of the exercise of sovereignty by the People’s Republic of China.
13.4The Child Abduction and Custody (Parties to Convention) Order, made by the Chief Executive pursuant to section 4, came into operation on 16 January 1998.1283 This lists the countries and territories that are contracting states to the Hague Convention. The order specified the 1 September 1997 as the date when the Hague Convention would come into force as between the Hong Kong Special Administrative Region (HKSAR) and the states and territories listed there. The Rules of the Supreme Court (Amendment) Rules 1998 1284 incorporate the procedures for the disposal of cases under the Hague Convention in the Court of First Instance of the High Court.
1281 McClean, “Migratory divorce in a mobile society - child stealing, forum shopping and the child’s interests”, Conference Papers, 7th Commonwealth Conference, 18-23 September 1983, Hong Kong.
1282 McClean, “Progress in dealing with International Child Abduction”, 18th meeting of Commonwealth Law Ministers, Mauritius, 15-19 November 1993.
1283 L.N. No. 36 of 1998.
1284 These were gazetted on 20 February 1998, at L.N. 119 of 1998.