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THE LAW REFORM COMMISSION OF HONG KONG - page 313 / 360

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custodial parent would have consented should amount to a defence.1345  This was especially so where the removing parent could have communicated with the custodial parent.  They also expressed concern that the parent would be permitted to take a child out of the country even if he knows that the other parent would object.  It was far too imprecise to have a defence that a person has unreasonably refused to consent.  They accepted that having to get approval every time may be inconvenient for those living in border areas.

13.64The Irish Law Reform Commission recommended that a precise definition of the offence should be formulated which, at the same time, does not place unrealistic restrictions on those having charge of children.  They recommended a new offence which would be committed by anyone who takes or sends or keeps a child out of the jurisdiction, in defiance of a court order, or without the consent of each person who is a parent or guardian or to whom custody has been granted, unless the leave of the court has been obtained.  They also suggested various defences similar to those in England.  These particular recommendations have not been implemented.

Passport

13.65The Irish Law Reform Commission also recommended that legislation should provide that a passport should not be issued without the consent of all legal guardians unless the other guardians have been notified or all reasonable efforts have been made to notify them.  In those cases, the passport should only have a duration of one year.  This recommendation was not implemented by the Child Abduction and Enforcement of Custody Orders Act 1991, which implemented the Hague Convention.

1345 Irish Law Reform Commission, Report on the Hague Convention on the Civil Aspects of International Child Abduction and some related matters, (No.12, 1985).

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