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removal, should also be enacted into primary legislation.1358

Disclosure of whereabouts

14.10Section 36 of the Irish Child Abduction and Enforcement of Custody Orders Act 1991 expanded on the power to order disclosure of the whereabouts of the child1359 by extending it to cases under the Hague Convention on the Civil Aspects of International Child Abduction.

14.11We recommend a power to order the disclosure of the whereabouts of the child along the lines of section 36 of the Irish Child Abduction and Enforcement  of Custody Orders Act 1991.

Location and recovery orders

14.12A location order requires a person to provide information on the child’s location.  A recovery order requires the return of the child, grants stop and search powers to recover the child and deliver him to the appropriate person, and prohibits a person from removing a child.  We recommend the adoption of provisions similar to those in Australia on location and recovery orders, as these would be useful in Hong Kong.  The Australian sections on a recovery order are preferred to the English provisions.1360

Surrender of passport

14.13In the Irish case of the State (KM & RD) v the Minister for Foreign Affairs1361 the High Court treated the denial of a passport as a breach of the right to travel, which was a personal right under Article 40.3 of the Irish Constitution.1362  In another case, Cosgrove v Ireland and Others,1363 the High Court held that a father’s rights as joint guardian under the Guardianship of Infants Act 1964 had been breached as a passport had been issued for the child despite the father’s objection.  Section 37 of the English 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 passport which has been issued to or contains particulars of the child.

14.14It would seem that refusing to issue a passport at the request of a parent may be in breach of the freedom of movement guaranteed by Article 31 of the Basic Law which provides that:

1358 It is arguable that the rule may be ultra vires as there is no power in primary legislation to make such an order.  For text, see chapter 13.

1359 This had been modelled on section 33 of the UK Family Law Act 1986.  For text see chapter 13.

1360 For text, see chapter 13 and for text of proposed Hong Kong provision, see Annex 1.

1361 [1979] IR 73.

1362 “The State guarantees to respect, defend and vindicate the personal rights of the citizen”.

1363 [1982] ILRM 48.

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