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made from taking the child abroad, particularly in cases where abduction is feared.  

13.53Failure or refusal to return the child to the jurisdiction once this period has expired will constitute a wrongful retention of the child for the purpose of the Hague Convention.  If such an order is in existence, then taking the child out of the jurisdiction for any period of time is an offence.1335


13.54Section 37 of the Family Law Act 1986 provides that when there is a court order prohibiting removal of a child from the United Kingdom, the court may require any person to surrender any UK passport which has been issued to or contains particulars of the child.  The Passport Agency provides procedures for lodging objections to the issue of passports for the child.

Power to order disclosure of whereabouts

13.55Section 33 of the Family Law Act 19861336 provides that the court can order any person, who it has reason to believe may have relevant information on a child’s whereabouts, to disclose it to the court where there is inadequate information as to the location of the child.  A person is not excused from complying with the order by reason of the fact that to do so may incriminate him or his spouse of an offence, but any statement or admission made is not admissible against either of them in proceedings for any offence except perjury.  The court has power to summon witnesses to appear before it to reveal the whereabouts, and if the witness refuses to answer, he is guilty of contempt and can be punished by fine or imprisonment.

13.56The Family Proceedings Rules 1991 give the court power to order the whereabouts to be disclosed.  The court can order any person who has information to attend and give evidence.  If the child was made a ward of court, then a refusal to disclose the whereabouts would amount to a contempt of court.1337

13.57It would seem that the power to order disclosure extends to solicitors who have confidential information of such whereabouts.  There have been several English judgments ordering solicitors to disclose any information which might lead to the tracing of the child.  In Re B (Abduction: Disclosure),1338 the court ordered the father’s solicitors to disclose the whereabouts of their client, and all documents in their possession, including those that might come into their possession in the future, relating to their client’s whereabouts.

13.58The court noted that a balance had to be struck between the duty owed by the solicitor to his client, a duty based on the welfare of the children and a duty to comply with a court order.  A solicitor could not be ordered to lie to his client in order to find out where the children were.  In any event, the information held by the

1335 Our proposal that section 8(1) be adopted for Hong Kong is considered in more depth in chapter 6, supra.

1336 As amended by Schedule 13, paragraphs 62 and 63 of the Children Act 1989.

1337 Mustafa v Mustafa (1967) The Times, 11 and 13 September.

1338 [1995] 1 FLR 774, CA.

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