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(1) the person claiming return was not actually exercising their custody rights, or had consented to or subsequently acquiesced in the removal or retention.1295  This can be actively or passively.  The latter occurs when there is such a lapse of time as to amount to acquiescence,

(2)  there is a grave risk that the return of the child would expose him to physical or psychological harm or otherwise place the child in an intolerable situation,1296 and

(3) if the child objects to being returned and has reached an age and a degree of maturity at which it is appropriate to take account of his views.1297

13.11 An analysis of practice for the Special Commission of the Hague Conference reported:

“allegations of misbehaviour on the part of the parent left behind, such as alcoholism, cruel behaviour or drug use, have been swept aside and left to be considered by the court in the state of the child’s habitual residence after his or her return.  This implies substantial trust in the process of the courts in that country and in the co-operation between the central authorities of the two countries, who can also help to ensure the child’s safety during and following the return”.1298

13.12McClean stated that the third ground for refusal is consistent with article 12 of the United Nations Convention on the Rights of the Child.1299  That Convention does not apply to children over the age of 16 years.1300  If an application for the return of a child is made after one year, return may be refused on the grounds that the child is now settled in his new environment.1301  The court orders the return of the child to the country concerned, not to the custody of the applicant.1302

13.13 Article 20 of the Hague Convention provides that a child’s return can be refused if it would not be permitted by the fundamental principles of the requested state relating to the protection of fundamental freedoms and the protection of human rights.  This article is not incorporated into the Child Abduction and Custody Ordinance.1303

Operation of the convention

1295 Article 13(a).

1296 Article 13(b).

1297 Article 13.

1298 McClean ibid at paragraph 10 of the 1993 lecture.

1299Article 12 provides “State parties shall  assure to the child who is capable of forming his or  her views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the children.”

1300 Article 4.

1301 Article 12.

1302 Re A (A Minor)(abduction) [1988] 1 FLR 365.

1303 Thus, Article 20 cannot be relied on by the Central Authority or the courts as a ground for refusing to return a child who has been unlawfully taken to Hong Kong.

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