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THE LAW REFORM COMMISSION OF HONG KONG - page 308 / 360

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Civil Law

Preventing removal from Hong Kong

13.39A Hong Kong custody or access order normally provides that a child should not be removed from the jurisdiction unless the consent of the other parent has been obtained, or a written undertaking is given to bring the child back to the territory.  Rule 61E of the District Court Civil Procedure (General) Rules (Cap 336) provides that an application for an injunction may be made ex parte to restrain a parent or any other person from removing a child from Hong Kong, or out of their custody, care or control.1325  Rule 94 (2) of the Matrimonial Causes Rules (Cap 179) allows an application to the court to prevent removal:

“(2)A petitioner or respondent ... may apply at any time for an order prohibiting the removal of any child of the family under 18 out of Hong Kong or out of the custody, care or control of any person ... without the leave of the court except on such term as may be specified in the order....”

Injunction

13.40It has recently been held in B v B1326 that the jurisdiction of the court in section 37(1) of the Supreme Court Act 19811327 was wide enough to allow for an order to be made, limited in duration, restraining an individual from leaving the jurisdiction and to make consequential orders for surrender of passports.  This could also apply after judgment to enforce orders.  This jurisdiction assisted in enforcing all the court’s procedures leading to the disposal of proceedings and also after judgment.  The difficulty with this judgment is that it is only a High Court decision and the Hong Kong courts could decide not to adopt a similar interpretation.

Wardship

13.41In Hong Kong an order of wardship can be obtained from the Court of First Instance of the High Court.  The power is contained in section 26 of the High Court Ordinance (Cap 4).  Wardship can be used to prevent a child’s removal from the jurisdiction of Hong Kong without the consent of the court.1328  The advantage of wardship is that the child becomes a ward as from the making of the application, which occurs when the summons is issued to ward the child (section 26(2), but this ceases on the expiration of such period as is prescribed by rules of court).

Seek and find order

1325 The rule applies to proceedings under the Separation and Maintenance Orders Ordinance (Cap 16) and the Guardianship of Minors Ordinance (Cap 13).

1326 [1997] 3 All ER 258, Family Division of the High Court.

1327 “The High Court may by order ... grant an injunction in all cases in which it appears to the court to be just and convenient to do so”.

1328 It is a contempt of court to remove a ward from the jurisdiction of the court - Re J (1913) 29. T.L.R. 456.

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