exceptional circumstances where the parent’s conduct was so bad that an ordinary right-thinking person would unhesitatingly regard it as conduct of a criminal nature.”
13.27The sub-committee do not think that prosecuting parents for the common law offence of kidnapping would be useful, except in the most blatant cases.
13.28If a child, under 14 years, is taken away from his parent or guardian, a person can be charged with child stealing, contrary to section 56 of the Offences against the Person Act 1861. This has been incorporated into Hong Kong law by section 43 of the Offences against the Person Ordinance (Cap 212). As it is a felony, a police officer has the power to arrest any person whom he suspects of committing the offence.
13.29The English Court of Appeal explained in R v D1318 that Parliament had intended in 1861 that neither a father nor a mother should be prosecuted for child stealing, as it had inserted a proviso giving a defence to a person claiming bona fide possession of the child. In R v D there was a pre-existing order restricting the father’s rights. The House of Lords took the view that the offence of child stealing might be committed even where there was no court order. However, a prosecution for the offence of child stealing may be difficult to sustain as the parent would raise the defence of a bona fide claim to the child.
13.30Section 126 of the Crimes Ordinance (Cap 200) provides for an offence of abduction of a girl under 16 against the will of her parent or guardian. This offence was probably designed to stop females being kidnapped and forced into prostitution. So, prosecution for either this offence or child stealing would not be useful ways to deal with cases of child abduction arising from parental disputes.
13.31A prosecution for false imprisonment was also successfully brought in the R v D case. This offence is committed when a person unlawfully and intentionally or recklessly restrains the freedom of movement of another from a particular place. It is certainly possible to prosecute a parent, but if the child is voluntarily accompanying the abducting parent, though the removal was unlawful under the Hague Convention, there may be difficulties sustaining a prosecution.
Contempt of custody orders
13.32The only remedy for breach of a custody, access or guardianship order is contempt of court. We have already dealt with these powers in chapter 2. Order 52 rule 6 of the Rules of the High Court provides for applications for committal in guardianship, custody or access to be dealt with in private.
1318 The court is entitled to look at such history as an aid to statutory interpretation.