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THE LAW REFORM COMMISSION OF HONG KONG - page 309 / 360

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13.42The English Court of Appeal, in Re B (Child Abduction: Wardship: Power to detain),1329 stated that the seek and find order, supported by a bench warrant, was a useful method of bringing to court a person who was believed to have the child, or who knew of his whereabouts, and to be party to his removal or retention.  The court was entitled to make the order under the inherent jurisdiction of the court.

Habeas Corpus

13.43This order is obtained where it is alleged that a person is being unlawfully detained, and is usually designed for persons unlawfully detained by the police or in a prison.  The Court of First Instance can order on an ex parte application that the body of the person be produced and the grounds for his detention be certified by the person detaining him.  If the person to whom the order is directed fails to comply or appear before the court, then the court may order his arrest and the police will then bring him to court.  

13.44Again, the problem is that the police have no role until the person fails to obey the civil order.  The Hong Kong power is referred to in section 22A of the High Court Ordinance (Cap 4).  It would be preferable if this remedy was not used to bring a parent and child before the court, merely because it provides some powers of arrest.

Protection of Children and Juveniles Ordinance

13.45This Ordinance provides civil and criminal remedies for the protection of children.  Under section 26 of the Protection of Children and Juveniles Ordinance (Cap. 213), it is an offence, punishable with two years imprisonment, for any person to take a child or juvenile unlawfully out of the possession of, and against the will of, the parent or guardian.1330

13.46Even though section 35 of the Protection of Children and Juveniles Ordinance deals with protecting children and juveniles from moral or physical danger, it gives power to the Director of Social Welfare to make an order regarding control or custody where the child is about to be taken out of Hong Kong, by force, threats, false pretences and other forms of coercion.  Historically, this section was designed to prevent prostitution but it does give power to the Director to intervene in an emergency, if a child was being kidnapped, and the police were hampered by their lack of powers.

13.47Section 44(1) gives a power of entry and search to the Director “for the purpose of ascertaining whether there is therein any child or juvenile who is or may be liable to be dealt with under the provisions of this Ordinance”.  By the same section, the Director is empowered “to remove any such child to a place of refuge, a hospital or such other place as he may consider appropriate.”  He must first have secured a warrant from a magistrate.  Within 48 hours the child must be brought before the Juvenile court under section 34(1) or 34C.1331  This may be useful where a

1329 [1994] 2 FLR 479.

1330 This section originated in section 55 of the United Kingdom Offences against the Person Act 1861.

1331 Section 44 (4A).

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