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THE LAW REFORM COMMISSION OF HONG KONG - page 310 / 360

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custodial parent is trying to trace a child who is suspected to have been abducted by the non-custodial parent.  The difficulty is that the Director cannot exercise these powers unless he would have grounds for taking care and protection proceedings or other proceedings.

Part C - Comparative law

United Kingdom

Child Abduction Act 1984

13.48Since the existing criminal law was unsatisfactory in providing a remedy for the unlawful removal of a child, the Child Abduction Act 1984 was designed to fill that gap.  Under section 1 it is an offence for a person connected with the child to take or send a child under the age of 16 out of the United Kingdom without appropriate consent.  Because it is an offence to attempt to take a child out of the UK, the police can arrest anyone they reasonably suspect of the attempt without a warrant.1332

13.49Subject to limited defences under section 1(5), the consent is required of each person who is the child’s mother, father (if he has parental responsibility for the child), guardian, and any person in whose favour a residence order1333 is in force, or who has custody of the child.  The court can grant leave by virtue of the Children Act 1989.  The more common consent will be that of the other parent.  Even if there is no court order, the Act prohibits removal if the parent does not have the necessary consents.

13.50The defences provided for are that the offender believed the other person consented, or would consent if he was aware of all the relevant circumstances, or that he has taken all reasonable steps to communicate with the other person but has been unable to communicate with him, or the other person has unreasonably refused his consent.  The latter does not apply if there is a custody order in existence.

13.51Section 13 of the Children Act 1989 provided that the consent of any other person who had parental responsibility was required only if the child was removed for longer than one month.  However, no offence would be committed if the child is removed for up to one month by a person in whose favour there is a residence order, if they have not obtained the consent of the other parent who has parental responsibility.  This was designed to allow parents to take their child on holiday without the necessity of going back to court if the other parent did not agree.

Prohibited steps order

13.52The English courts can also order a prohibited steps order at any time in matrimonial proceedings under section 8(1) of the Children Act 1989.1334  This is equivalent to an injunction prohibiting a person in whose favour a residence order is

1332 According to Bromley and Lowe, Bromley’s Family Law (8th ed, 1992) 484.

1333 See chapter 3.

1334 See chapter 3.

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