Civil law reforms
Removal of child from jurisdiction
14.5The only specific provisions dealing with removal of a child from Hong Kong are contained in subsidiary legislation. Rule 94 of the Matrimonial Causes Rules (Cap 179) allows an application to the court to prevent removal. A similar provision is rule 61E of the District Court Civil Procedure (General) Rules (Cap 336).
14.6Section 13(1) and (2) of the English Children Act 1989 makes it an automatic condition of a residence order that the child should not be removed from the United Kingdom for longer than one month without the written consent of any person with parental responsibility, or with the leave of the court. The person with a residence order may remove the child for less than one month without seeking permission of the other parent or having to give notice. This provision may be problematic in Hong Kong with the ease and frequency of travel out of the jurisdiction.
14.7The sub-committee propose that there should be a provision in primary legislation to restrict removal of a child without the consent of the parent who has control of the child’s residence or with whom the child has regular contact. We express a preference for the Scottish provisions, and would suggest that a provision along the lines of section 2(3) of the Children (Scotland) Act 1995 be adopted.
14.8This would provide as follows:
“(1) Without prejudice to any court order, no person shall be entitled to remove a child from, or to retain any such child outside, the Hong Kong Special Administrative Region without the consent of a person described in subsection (2) below; and
(2)The description of a person referred to in subsection (1) above is a person (whether or not a parent of the child) who for the time being has and is exercising in relation to him a parental right; except that, where both the child’s parents are persons so described, the consent required for his removal or retention shall be that of them both.”
14.9The parental rights referred to in subsection (2) would be to have the child living with him or otherwise to regulate the child’s residence, or if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis. We also propose that this section would apply in cases where proceedings had already been issued or court orders made concerning the child. It would also extend to any child of the family.1357 Rule 94(2) of the Matrimonial Causes Rules (Cap 179), which allows an application to the court to prevent
1357 This is defined in section 2 of the Matrimonial Proceedings and Property Ordinance (Cap 192) as a child of both parties or a child who has been treated as a child of their family.