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13.14A Special Commission reviewed the operation of the Hague Convention in January 1993.  The Commonwealth Secretariat and 44 countries were represented.  Even though the Hague Convention was working well, delay in legal proceedings was causing problems.  The absence of legal aid, together with high legal fees, caused further difficulty.1304

Legal aid

13.15Article 7 provides that Central Authorities shall co-operate with each other to secure the prompt return of the child.  Article 7(g) provides that Central Authorities shall take all appropriate measures “where the circumstances so require, to provide or facilitate ... legal aid and advice, including the participation of legal counsel and advisers”.  Article 25 provides that persons from contracting states shall be entitled to legal aid and advice in any other contracting state on the same conditions as if they themselves were nationals of and habitually resident in that state. 1305 so that the costs are not obliged to be borne by the Secretary for Justice1306 “or any other authority in Hong Kong except so far as they fall to be so borne by virtue of the grant of legal aid under the Legal Aid Ordinance (Cap 91)”.1307

13.16A previous review meeting in 1989 encouraged states:

“contemplating becoming parties to the convention ... to organise their legal and procedural structures in such a way as to ensure the effective operation of the convention and to give their central authorities adequate powers to play a dynamic role, as well as the qualified personnel and resources, including modern means of communication, needed in order expeditiously to handle requests for return of children or for access.”1308

13.17McClean suggested that the very existence of the Hague Convention increases the number of voluntary returns.1309  For example, the United States reported that in the first three years, there was a significant rate of voluntary returns equal to almost 60% of the number of court ordered returns (for incoming applications) and nearly 33% of the court ordered returns (for outgoing applications).  The United States as at 1 July 1992 had 10 cases from Hong Kong.  The Hague Convention has been the model for the Inter-American Convention on the International Return of Children, signed at Montevideo on 15 July 1989.

13.18 A balance has to be struck between the principle of giving respect to the comity of nations, by enforcing custody orders or rights, and the local court’s views of the welfare of the child. Article 19 provide that a decision relating to the

1304 McClean, (1993), ibid at paragraph 14.  The third Special Commission (see infra) noted that the United States has developed an International Child Abduction Attorney Network (ICAAN) which offers pro bono representation for applications under the convention there.

1305 Section 13 of the Ordinance.

1306 It is usually the Central Authority that represents the innocent party in the proceedings though Article 29 of the Convention allows any person, institution or body to apply directly to court.

1307 This would mean that the Secretary for Justice is entitled to claim the costs of representing the applicant from him unless he fell within the means and merits test of the Legal Aid Scheme.

1308 Ibid at paragraph 15.

1309 1993 article.

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