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THE LAW REFORM COMMISSION OF HONG KONG - page 304 / 360

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rights of custody and the latter would not, except as a breach of access.1315  

The European Convention

13.23The European Convention on the Recognition and Enforcement of Decisions concerning Custody of Children and on the Restoration of Custody of Children, more commonly called the Luxembourg Convention, was prepared under the auspices of the Council of Europe on 20 May 1980.  Custody decisions, if enforceable in the state of origin, are enforceable in other contracting states.  In certain cases this applies to decisions given after the removal of the child.1316

Part B  -Hong Kong law on abduction and removal  

Introduction

13.24It is necessary to consider the local criminal and civil law on abduction and removal from Hong Kong to decide whether any proposals for reform are needed to give sufficient support to the operation of the Hague Convention on the Civil Aspects of Child Abduction.  Indeed, the Third Special Commission considered that accession to the Hague Convention was an ideal time for states “to look at their enforcement and appeal procedures, which had to be rapid and reliable if the Convention was to be regarded as providing an effective remedy”.

Criminal Law

Kidnapping

13.25Theoretically, at common law, a parent can be found guilty of kidnapping his own child.  The House of Lords, in R v D1317, held that:

“the common law offence of kidnapping in relation to children under 14 remained unaffected by the statutory offence of child stealing so that where the ingredients of the offence, namely the taking or carrying away of one person by another by force or fraud without the consent of that other person and without lawful excuse, were proved, an offence was committed even though the victim was a child under the age of 14.

13.26However, the House of Lords did not want to encourage prosecution for this offence:

“As a matter of general policy, it was desirable that parents who snatched their own children in defiance of a court order should be dealt with in civil proceedings for contempt of court, save in

1315 See Article 21 supra.

1316 Articles 7 and 12.  The latter provides for a decision which declares the removal to be unlawful.

1317 [1984] 1 AC 778.

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