13.5The Hague Convention aims to ensure that a child that has been abducted to a contracting state will be returned to the country of its habitual residence. The removal or retention of the child is wrongful where it is in breach of custody rights arising in the other contracting state, by operation of law or by reason of an agreement.1285
13.6It is important to note that the rights of custody are not limited to the parent with physical custody. It includes the right of a parent who does not have custody, to give or refuse consent to the removal of the child from the jurisdiction.1286 1287
13.7Indeed, the custody rights do not exclusively belong to a parent. They can be attributed to an institution, or any body, either jointly or alone.1288 The Hague Convention is not limited to wrongful removal. It extends to wrongful retention.1289 This is where, for example, a child is not returned to the custodial parent by the parent exercising rights of access.
13.8A contracting state must designate a Central Authority for the purposes of the Hague Convention.1290 In Hong Kong, this is the Secretary for Justice.1291 This authority has the duty to take or cause to be taken all appropriate measures to obtain the voluntary return of the child, where the child is taken to that state.1292 If it fails to reach an amicable settlement for the return of the child, it must initiate or facilitate proceedings being issued to obtain an order for the return of the child.1293 Article 11 gives the right to the Central Authority or the applicant to request reasons for delay if the judicial or administrative authority has not reached a decision within 6 weeks.
13.9Article 21 puts an obligation on the Central Authority to promote “the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject”. The Central Authority also has a duty to take such steps to remove, as far as possible, all obstacles to the exercise of such rights. An application for access may be presented to the Central Authority in the same way as an application for the return of a child. The Hague Convention does not prevent an application directly to the court rather than to the Central Authority.1294
Refusal to return child
13.10There are a number of grounds for refusal to return the child:
1285 Article 3 of the Convention. An example would be a separation or other similar agreement.
1286 This is the effect of Article 5.
1287 Article 5(b).
1288 This would be where there was a care or protection order in favour of the equivalent to the Director of Social Welfare.
1289 Article 3.
1290 Article 6.
1291 Section 5 designates the Attorney General but his functions are deemed to have been replaced by the Secretary for Justice after 1 July 1997. In fact, the functions are discharged by the Civil Litigation Unit of the Civil Division.
1292 Article 10.
1293 Article 7(f).
1294 Article 29.