“Hong Kong residents ... shall have freedom to travel and to enter or leave the Region. Unless restrained by law, holders of valid travel documents shall be free to leave the Region without special authorization”.
14.15We accept that the court has the inherent power to order the surrender of passports where there is a real risk that the child will be unlawfully removed from Hong Kong.1364 No doubt the court has made such orders in the past. We also note that magistrates can order the surrender of all passports, Chinese re-entry permits and travel documents, when they release persons on bail.
14.16However, Hong Kong is in a unique position that makes it difficult to legislate in this area: Hong Kong residents tend to travel in and out of Hong Kong, whether to the Mainland or elsewhere, with more frequency than residents of other countries; and there is only an identity card control between Hong Kong and the Mainland for Chinese permanent residents. It is therefore possible for certain persons to leave Hong Kong for another jurisdiction without a passport. It would be difficult for a court to order the surrender of an HKSAR identity card, given the requirements imposed on SAR residents to carry such a card.
14.17The sub-committee recommend the retention of the status quo though a minority of members recommend a power to order the surrender of all passports, Chinese re-entry permits and travel documents, where the court had made or was making an order prohibiting removal of the child. We note that the Australian section 67ZD of the Family Law Act 1995, which gave power to the court to order the surrender of the passport to the court, does not cover such situations as the length of removal of the passport.1365 We reject the adoption of a similar proposal for Hong Kong.
Notification of order to Immigration Department
14.18Practitioners have expressed concern at the variation in practice as to whether the Immigration Department is informed or not of the making of a court order prohibiting the removal of the child without the written consent of the other parent or the court. In some cases, a parent does not inform the department as the parents are able to agree informally between themselves as to whether the child is removed for a holiday without the necessity of varying the court order, or having to correspond via solicitors. On the other hand, there are cases where a parent arrives at the departures area and is informed by immigration officials that he cannot depart with the child because the department has been notified of the order.
14.19We do not consider that the Family Court Registry should be under an obligation to notify the Immigration Department of the court order. Neither should the Immigration Department be obliged to inform the other parent that they have
1364 The English Court of Appeal, in a recent case, In re A-K (Minors)(Foreign Passport: Jurisdiction), The Times, March 7th, 1997, held that it was well within the jurisdiction of the High Court to order the surrender of a foreign passport in order to protect the interests of children. The court had ordered that the husband’s passport be held by his own solicitor, and not released except with the mother’s agreement or order of the court.
1365 For text, see chapter 13.