An Ordinance to give effect in Hong Kong to the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980; to combat child abduction; and to provide for related matters.
(Amended 16 of 2014 s. 3)
(Format changes—E.R. 3 of 2017)
[5 September 1997] L.N. 439 of 1997
(Added 16 of 2014 s. 4)
This Ordinance may be cited as the Child Abduction and Custody Ordinance.
(Omitted as spent—E.R. 3 of 2017)
In this Ordinance, unless the context otherwise requires—
application under Part 2 (第2部之下的申請) means— (a)an application under the Convention; or (b)an application under section 15, 16 or 17; (Added 16 of 2014 s. 5) authorized officer (獲授權人員) means— (a)a police officer; or (b)an immigration officer; (Added 16 of 2014 s. 5) the Convention (《公約》) means the Convention on the Civil Aspects of International Child Abduction which was signed at The Hague on 25 October 1980; Court of First Instance (原訟法庭) means the Court of First Instance of the High Court; (Replaced 25 of 1998 s. 2) custody order (管養令) means an order specified in Schedule 2; District Court (區域法院) means the District Court established by section 3 of the District Court Ordinance (Cap. 336); (Added 16 of 2014 s. 5) immigration officer (入境事務人員) means the holder of a rank specified in Schedule 1 to the Immigration Service Ordinance (Cap. 331); (Added 16 of 2014 s. 5) place of safety (安全地方) includes a place listed in the Schedule to the Protection of Children and Juveniles (Places of Refuge) Order (Cap. 213 sub. leg. B ); (Added 16 of 2014 s. 5) prohibition order (禁止離境令) means an order made under section 21(3); (Added 16 of 2014 s. 5) recovery order (返還令) means an order made under section 17(2). (Added 16 of 2014 s. 5)(Amended 16 of 2014 s. 5)
(Added 16 of 2014 s. 6)
Subject to the provisions of this Part, the provisions of the Convention as set out in Schedule 1 shall have the force of law in Hong Kong.
(Amended 16 of 2014 s. 7)
[cf. 1985 c. 60 s. 1(2) U.K.]
For the purposes of the Convention as it has effect under this Part, the Contracting States shall be those for the time being specified by an order made by the Chief Executive and published in the Gazette under this section. (Amended 66 of 1999 s. 3; 16 of 2014 s. 8)
An order under this section shall specify the date of the coming into force of the Convention as between Hong Kong and any State specified in the order.
Unless the order otherwise provides, the Convention shall apply as between Hong Kong and that State only in relation to wrongful removals or retentions occurring on or after that date.
Where the Convention applies, or applies only, to a particular territory or particular territories specified in a declaration made by a Contracting State under Article 39 or 40 of the Convention, references to that State in subsections (1) and (2) shall be construed as references to that territory or those territories.
[cf. 1985 c. 60 s. 2 U.K.]
The functions under the Convention of a Central Authority shall be discharged by the Secretary for Justice.
Any application made under the Convention by or on behalf of a person outside Hong Kong may be addressed to the Secretary for Justice as the Central Authority in Hong Kong.
(Amended L.N. 362 of 1997)
[cf. 1985 c. 60 s. 3(1) & (2) U.K.]
The Court of First Instance shall have the jurisdiction to hear and determine an application under the Convention.
(Amended 25 of 1998 s. 2)
[cf. 1985 c. 60 s. 4 U.K.]
Before an application under Part 2 is determined, the Court of First Instance may do one or more of the following—
give an interim direction as the Court thinks fit for securing the welfare of the child concerned, or for preventing changes in the circumstances relevant to determining the application;
require the personal attendance of a person specified by the Court, including either or both of the parents of the child, at the hearing of the application.
This section does not affect the powers and discretions of the Court of First Instance that are exercisable apart from this section.
(Replaced 16 of 2014 s. 9)
For discharging a Central Authority’s functions in relation to a child under Articles 7 and 21 of the Convention, the Secretary for Justice may— (Amended L.N. 362 of 1997; 16 of 2014 s. 10)
request—
the Director of Social Welfare;
the Commissioner of Police;
the Director of Immigration;
any other person as he may specify,
to make a report to him in writing with respect to any matter which appears to him to be relevant;
request any court to which a written report relating to the child has been made to send him a copy of the report,
and such a request shall be duly complied with.
[cf. 1985 c. 60 s. 6 U.K.]
For the purposes of section 16, and Article 14 of the Convention, a decision or determination of a judicial or administrative authority outside Hong Kong may be proved by a duly authenticated copy of the decision or determination, and any document purporting to be such a copy shall be deemed to be a true copy unless the contrary is shown. (Amended 16 of 2014 s. 11)
For the purposes of subsection (1), a copy is duly authenticated if it bears the seal, or is certified by a judge or officer, of the authority in question.
For the purposes of Articles 14 and 30 of the Convention, a document mentioned in Article 8 of the Convention or a certified copy of the document shall be sufficient evidence of the matters stated in it.
[cf. 1985 c. 60 s. 7 U.K.]
The Court of First Instance may, on an application made for the purposes of Article 15 of the Convention by a person appearing to the Court of First Instance to have an interest in the matter, make a declaration that the removal of a child from Hong Kong, or the retention of the child outside Hong Kong, was wrongful within the meaning of Article 3 of the Convention.
(Amended 25 of 1998 s. 2)
[cf. 1985 c. 60 s. 8 U.K.]
The reference in Article 16 of the Convention to deciding on the merits of rights of custody shall be construed as a reference to making, varying, discharging, suspending or reviving after being so suspended a custody order.
[cf. 1985 c. 60 s. 9 U.K.]
(Amended 16 of 2014 s. 12)
The Rules Committee constituted under section 55 of the High Court Ordinance (Cap. 4) may make rules of court for giving effect to this Part as appears to the Committee to be necessary or expedient. (Replaced 16 of 2014 s. 12)
Without affecting the generality of subsection (1), the rules of court made by the Rules Committee may provide—
for the procedure on an application for the return of a child, the documents and information to be furnished and the notices to be given in connection with the application;
for the giving of notices by or to a court for the purposes of Article 16 of the Convention and section 11 and the proceedings to which those provisions apply;
for enabling a person who wishes to make an application under the Convention in a Contracting State to obtain from any court in Hong Kong an authenticated copy of any decision of that court relating to the child to whom the application relates. [cf. 1985 c. 60 s. 10(2) U.K.]
The power to make rules of court under section 54 of the High Court Ordinance (Cap. 4) shall include power to make rules of court for the purposes of this section. (Amended 25 of 1998 s. 2)
The costs mentioned in the third paragraph of Article 26 of the Convention shall not be borne by the Secretary for Justice or any other authority in Hong Kong except so far as they fall to be so borne by virtue of the grant of legal aid under the Legal Aid Ordinance (Cap. 91).
(Amended L.N. 362 of 1997)
[cf. 1985 c. 60 s. 11 U.K.]
Where an order is made by the Court of First Instance for the return of a child under this Ordinance, any custody order relating to the child shall cease to have effect.
(Amended 25 of 1998 s. 2)
[cf. 1985 c. 60 s. 25(1) U.K.]
In this section—
applicable information (適用資料), in relation to a child, means information about the child’s whereabouts or other circumstances relevant to locating the child; applicable proceedings (適用程序) means proceedings for the return of a child under the Convention that are commenced, or about to be commenced, in Hong Kong or in another Contracting State.For any applicable proceedings relating to a child, the Court of First Instance may, on application, make a location order providing for one or more of the following—
requiring a person to provide the Court with applicable information that the person has or may reasonably obtain about the child;
requiring a public officer to provide the Court with applicable information that the officer has or may reasonably obtain in an official capacity about the child.
A location order made for any applicable proceedings may also provide that the applicable information provided in compliance with the order may only be used for the applicable proceedings.
Any of the following persons may apply for a location order—
a party to the applicable proceedings;
the Secretary for Justice.
Unless otherwise directed by the Court of First Instance, the application may be made ex parte.
The Court of First Instance may make a location order despite the production of the child before a judicial or administrative authority, or the Central Authority, of Hong Kong or another Contracting State.
A person to whom a location order applies must comply with it, regardless of whether or not—
there is any restriction imposed by a law or agreement concerning the disclosure of the applicable information; or
the applicable information is subject to legal professional privilege.
A person is not excused from complying with a location order only because doing so may incriminate the person or the person’s spouse.
However, a statement made by a person in compliance with a location order is not admissible in evidence against the person, or against the person’s spouse, in proceedings for an offence other than perjury.
(Added 16 of 2014 s. 13)
In this section—
home state (本國), in relation to a child, means the Contracting State of the child’s habitual residence.This section applies to a child if—
a judicial or administrative authority of the child’s home state has made an order providing for the child to be taken to Hong Kong temporarily (whether or not also to another jurisdiction) for enabling a person to exercise the rights of access to the child; or
all of the following conditions are met—
a judicial or administrative authority of a Contracting State has made a decision or other determination that the child has been wrongfully removed to or retained in that State within the meaning of Article 3 of the Convention;
that authority has made an order providing for the return of the child to the child’s home state via Hong Kong (whether or not also via another jurisdiction);
the child is in, or will be entering, Hong Kong in transit on return to the child’s home state.
The Court of First Instance may, on application by the Secretary for Justice, make an order prohibiting the removal of the child from Hong Kong to a jurisdiction other than—
the child’s home state;
another jurisdiction as may be specified in the order mentioned in subsection (2)(a) or (b)(ii).
If the Court of First Instance has made an order under subsection (3), it may do one or more of the following—
vary or discharge the order;
suspend the operation of a provision of the order, and revive the operation of the provision so suspended.
This section does not affect the powers and discretions of the Court of First Instance that are exercisable apart from this section.
The Secretary for Justice may make an application under this section on request by the Central Authority of a Contracting State.
Unless otherwise directed by the Court of First Instance, the application may be made ex parte.
(Added 16 of 2014 s. 13)
In this section—
applicable proceedings (適用程序) means proceedings under the Convention that are commenced in Hong Kong for the return of a child to another Contracting State.For any applicable proceedings relating to a child, the Court of First Instance may, on application, make a recovery order providing for one or more of the following—
requiring a person to return or deliver the child to another person specified by the Court (specified person);
authorizing or directing a police officer to do one or more of the following for finding the child (and to do so with the assistance the officer requires and by force if necessary)—
stop and search a vehicle, vessel or aircraft;
enter and search a place;
authorizing or directing a police officer to recover the child (and to do so with the assistance the officer requires and by force if necessary);
authorizing or directing a police officer to return or deliver the recovered child to the specified person;
authorizing or directing a police officer to take the recovered child to, and keep the child in, a place of safety until the return or delivery of the child to the specified person;
if the specified person cannot be contacted within a reasonable time—authorizing or directing the Director of Social Welfare to take the follow-up actions that the Director considers appropriate;
giving directions about the day-to-day care of the child until the return or delivery of the child to the specified person.
Any of the following persons may apply for a recovery order—
a party to the applicable proceedings;
the Secretary for Justice.
Unless otherwise directed by the Court of First Instance, the application may be made ex parte.
(Added 16 of 2014 s. 13)
This section applies if a recovery order has been made in relation to a child.
For the purposes of section 19—
an applicant for a recovery order may notify the Director of Immigration that the order has been made; and
an applicant for a recovery order that has been revived after suspension may notify the Director of Immigration that the order has been revived.
If an applicant has given a notification under subsection (2), the applicant must as far as practicable inform each party to the related applicable proceedings mentioned in section 17 that the notification has been given.
A failure to comply with subsection (3) does not affect the validity of a recovery order or the operation of section 19.
Subsection (6) applies if—
a recovery order has been varied by the Court of First Instance; or
a recovery order has been discharged on appeal or by the Court of First Instance, or suspended on or pending appeal.
For the purposes of section 19, an applicant for a recovery order who has given a notification under subsection (2) must, or a person affected by the order may, notify the Director of Immigration about the matter mentioned in subsection (5)(a) or (b) (whichever is applicable).
The notification under subsection (2) or (6) must be—
given in a manner and form specified by the Director of Immigration; and
accompanied by the supporting documents required by the Director of Immigration.
(Added 16 of 2014 s. 13)
An authorized officer may detain a child if the following conditions are met—
the officer is satisfied that—
a notification has been given under section 18(2), or a notification about the matter mentioned in section 18(5)(a) has been given under section 18(6), in relation to the child; and
no notification about the matter mentioned in section 18(5)(b) has been given under section 18(6) in relation to the child; and
the officer reasonably suspects that the child is about to be, or is being, removed out of Hong Kong.
To avoid doubt—
the mere fact that the matter mentioned in section 18(5)(b) exists does not render unlawful the exercise of the power by an authorized officer under subsection (1) if the officer is unaware of that fact; and
if the officer has detained a child under subsection (1), the officer may continue to do so for as long as it is necessary for the officer to discharge the functions under subsection (3) or (4), regardless of whether the condition in subsection (1)(b) continues to be met.
If an immigration officer detains a child under subsection (1), the officer must as soon as practicable transfer the child into the charge of a police officer.
If a police officer detains a child under subsection (1) or a child is transferred into the charge of a police officer under subsection (3)—
the police officer must as soon as practicable take the child to, and keep the child in, a place of safety until the return or delivery of the child to a person specified in the recovery order; and
if the person cannot be contacted within a reasonable time, the Director of Social Welfare is to take the follow-up actions that the Director considers appropriate.
(Added 16 of 2014 s. 13)
In this section—
custody application (管養權申請), in relation to a child, means an application relating to the merits of rights of custody of the child; rights of custody (管養權) has the same meaning as in the provisions of the Convention set out in Schedule 1; specified authority (指明當局) includes the Court of First Instance, the District Court, and a juvenile court within the meaning of the Juvenile Offenders Ordinance (Cap. 226).If a party to proceedings under the Convention in relation to a child knows that a custody application in relation to that child is pending in a specified authority, that party must file in the Registry of the High Court a notice containing a statement that sets out—
the nature of the custody application; and
that specified authority
On receipt of that notice, the Registrar of the High Court must—
give the specified authority notification of the proceedings under the Convention; and
subsequently give that authority notification of the result of those proceedings.
On receipt by the specified authority of the notification under subsection (3)(a)—
all further proceedings in the custody application are to be stayed until the final determination or final disposal of the proceedings under the Convention; and
the specified authority must give the parties to that application notice of the stay.
(Added 16 of 2014 s. 13)
(Part 3 added 16 of 2014 s. 14)
This section applies to a child who is under the age of 18 if—
a court order concerning the custody of or access to the child is in force; or
proceedings concerning the custody of or access to the child are pending in a court.
A person must not remove the child out of Hong Kong without the consent of the following persons (whether or not a parent of the child)—
if the court order is in force—the person, or each of the persons, who has the custody of or access to the child under the order or who is exercising the rights of that custody or access; or
if proceedings concerning the custody of or access to the child are pending in a court—each party to the proceedings.
To prevent a person from breaching subsection (2), a person specified in subsection (2)(a) or (b) may apply to the court for an order prohibiting the removal of the child out of Hong Kong except—
with the leave of the court; or
on compliance with the terms specified in the order.
If an order has been made under subsection (3), the court that made the order may do one or more of the following—
vary or discharge the order;
suspend the operation of a provision of the order, and revive the operation of the provision so suspended.
Subsection (4) does not affect the powers and discretions of the court that are exercisable apart from that subsection.
Unless otherwise directed by the court, the application under subsection (3) may be made ex parte.
This section does not affect the effect of any other order.
In this section—
child (兒童)—in relation to a court order made by the Court of First Instance in the exercise of its jurisdiction relating to a ward of court under section 26 of the High Court Ordinance (Cap. 4), or any proceedings related to the exercise of that jurisdiction—means the infant who is the subject of that order or those proceedings;
in relation to a court order made under section 10(1), 11(1)(a), 12(a) or 13(1)(b) or (3) of the Guardianship of Minors Ordinance (Cap. 13), or any proceedings related to an application under that section—means the minor who is the subject of that order or those proceedings;
in relation to a court order made under section 5(1)(b) of the Separation and Maintenance Orders Ordinance (Cap. 16), or any proceedings related to an application under that section—means a child of the marriage who is the subject of that order or those proceedings;
in relation to a court order made under section 48(1) of the Matrimonial Causes Ordinance (Cap. 179), or any proceedings related to an application under that section—means a child who is the subject of that order or those proceedings; or
in relation to a court order made under section 19(1) or 20(1) of the Matrimonial Proceedings and Property Ordinance (Cap. 192), or any proceedings related to an application under that section—means a child of the family who is the subject of that order or those proceedings;
in relation to a court order made by the Court of First Instance, or any proceedings pending in the Court—means the Court of First Instance; or
in relation to a court order made by the District Court, or any proceedings pending in the Court—means the District Court.
This section applies if—
a prohibition order has been made in relation to a child; or
an application for a prohibition order in relation to a child is pending, and the date for the hearing of the application has been fixed by the court.
For the purposes of section 23—
an applicant for a prohibition order may notify the Director of Immigration that the order has been made or, if the application is pending, the date for the hearing of the application has been fixed by the court; and
an applicant for a prohibition order that has been revived after suspension may notify the Director of Immigration that the order has been revived.
If an applicant has given a notification under subsection (2), the applicant must as far as practicable inform the following persons that the notification has been given—
if a court order concerning the custody of or access to the child is in force—the person, or each of the persons, who has the custody of or access to the child under the order or who is exercising the rights of that custody or access; or
if proceedings concerning the custody of or access to the child is pending in the court—each party to the proceedings.
A failure to comply with subsection (3) does not affect the validity of a prohibition order or the operation of section 23.
Subsection (6) applies if—
a prohibition order has been varied on appeal or by the court that made the order;
a prohibition order has been discharged or suspended on appeal or by the court that made the order;
an application for a prohibition order has been rejected or withdrawn;
the court that made the prohibition order has granted the leave under section 21(3)(a); or
for a prohibition order that is made subject to an exception mentioned in section 21(3)(b)—the court that made the order has certified that the terms specified in the order have been complied with.
For the purposes of section 23, an applicant for a prohibition order who has given a notification under subsection (2) must, or a person affected by the order or the application may, notify the Director of Immigration about the matter mentioned in subsection (5)(a), (b), (c), (d) or (e) (whichever is applicable).
The notification under subsection (2) or (6) must be—
given in a manner and form specified by the Director of Immigration; and
accompanied by the supporting documents required by the Director of Immigration.
An authorized officer may detain a child if the following conditions are met—
the officer is satisfied that—
a notification has been given under section 22(2), or a notification about the matter mentioned in section 22(5)(a) has been given under section 22(6), in relation to the child; and
no notification about any of the matters mentioned in section 22(5)(b), (c), (d) or (e) has been given under section 22(6) in relation to the child; and
the officer reasonably suspects that the child is about to be, or is being, removed out of Hong Kong.
To avoid doubt—
the mere fact that any of the matters mentioned in section 22(5)(b), (c), (d) or (e) exists does not render unlawful the exercise of the power by an authorized officer under subsection (1) if the officer is unaware of that fact; and
if the officer has detained a child under subsection (1), the officer may continue to do so for as long as it is necessary for the officer to discharge the functions under subsection (3) or (4), regardless of whether the condition in subsection (1)(b) continues to be met.
If an immigration officer detains a child under subsection (1), the officer must as soon as practicable transfer the child into the charge of a police officer.
If a police officer detains a child under subsection (1) or a child is transferred into the charge of a police officer under subsection (3)—
the police officer must as soon as practicable take the child to, and keep the child in, a place of safety until—
the arrival of, and the return of the child to, the person specified in subsection (5); or
in any other case—the Director of Social Welfare is to take the follow-up actions that the Director considers appropriate; and
if the person specified in subsection (5) cannot be contacted within a reasonable time, the Director of Social Welfare is to take the follow-up actions that the Director considers appropriate.
For subsection (4)(a)(i) and (b), the following person is specified—
the person who—
has sole custody of the child under a court order; and
is not the person who attempts to remove the child out of Hong Kong;
if 2 or more persons have joint custody of the child under a court order, and one of them attempts to remove the child out of Hong Kong—the other person, or one of the other persons; or
if proceedings concerning the custody of the child are pending in a court—the applicant for the prohibition order.
The Rules Committee may make rules of court for giving effect to this Part as appears to the Committee to be necessary or expedient.
(Amended 16 of 2014 s. 15)
The removal or the retention of a child is to be considered wrongful where—
it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of sixteen years.
For the purposes of this Convention—
Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.
In particular, either directly or through any intermediary, they shall take all appropriate measures—
to discover the whereabouts of a child who has been wrongfully removed or retained;
to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;
to secure the voluntary return of the child or to bring about an amicable resolution of the issues;
to exchange, where desirable, information relating to the social background of the child;
to provide information of a general character as to the law of their State in connection with the application of the Convention;
to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access;
where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;
to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;
to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.
Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child.
The application shall contain—
information concerning the identity of the applicant, of the child and of the person alleged to have removed or retained the child;
where available, the date of birth of the child;
the grounds on which the applicant’s claim for return of the child is based;
all available information relating to the whereabouts of the child and the identity of the person with whom the child is presumed to be.
The application may be accompanied or supplemented by—
an authenticated copy of any relevant decision or agreement;
a certificate or an affidavit emanating from a Central Authority, or other competent authority of the State of the child’s habitual residence, or from a qualified person, concerning the relevant law of that State;
any other relevant document.
If the Central Authority which receives an application referred to in Article 8 has reason to believe that the child is in another Contracting State, it shall directly and without delay transmit the application to the Central Authority of that Contracting State and inform the requesting Central Authority, or the applicant, as the case may be.
The Central Authority of the State where the child is shall take or cause to be taken all appropriate measures in order to obtain the voluntary return of the child.
The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.
Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that—
the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.
In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.
The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.
After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.
The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention.
The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.
A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.
An application to make arrangements for organising or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child.
The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights. The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organising or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.
No security, bond or deposit, however described, shall be required to guarantee the payment of costs and expenses in the judicial or administrative proceedings falling within the scope of this Convention.
Any application, communication or other document sent to the Central Authority of the requested State shall be in the original language, and shall be accompanied by a translation into the official language or one of the official languages of the requested State or, where that is not feasible, a translation into French or English.
Each Central Authority shall bear its own costs in applying this Convention.
Central Authorities and other public services of Contracting States shall not impose any charges in relation to applications submitted under this Convention. In particular, they may not require any payment from the applicant towards the costs and expenses of the proceedings or, where applicable, those arising from the participation of legal counsel or advisers. However, they may require the payment of the expenses incurred or to be incurred in implementing the return of the child.
However, a Contracting State may, by making a reservation in accordance with Article 42, declare that it shall not be bound to assume any costs referred to in the preceding paragraph resulting from the participation of legal counsel or advisers or from court proceedings, except insofar as those costs may be covered by its system of legal aid and advice.
Upon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child.
When it is manifest that the requirements of this Convention are not fulfilled or that the application is otherwise not well founded, a Central Authority is not bound to accept the application. In that case, the Central Authority shall forthwith inform the applicant or the Central Authority through which the application was submitted, as the case may be, of its reasons.
A Central Authority may require that the application be accompanied by a written authorisation empowering it to act on behalf of the applicant, or to designate a representative so to act.
This Convention shall not preclude any person, institution or body who claims that there has been a breach of custody or access rights within the meaning of Article 3 or 21 from applying directly to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of this Convention.
Any application submitted to the Central Authorities or directly to the judicial or administrative authorities of a Contracting State in accordance with the terms of this Convention, together with documents and any other information appended thereto or provided by a Central Authority, shall be admissible in the courts or administrative authorities of the Contracting States.
In relation to a State which in matters of custody of children has two or more systems of law applicable in different territorial units—
any reference to habitual residence in that State shall be construed as referring to habitual residence in a territorial unit of that State;
any reference to the law of the State of habitual residence shall be construed as referring to the law of the territorial unit in that State where the child habitually resides.
In relation to a State which in matters of custody of children has two or more systems of law applicable to different categories of persons, any reference to the law of that State shall be construed as referring to the legal system specified by the law of that State.
(Amended E.R. 3 of 2017)
An order made under section 10(1),11(1)(a),12(a) or 13(1)(b) of the Guardianship of Minors Ordinance (Cap. 13).
An order made under section 5(b) of the Separation and Maintenance Orders Ordinance (Cap. 16).
An order made under section 48A(1) of the Matrimonial Causes Ordinance (Cap. 179).
An order made under section 19 or 20 of the Matrimonial Proceedings and Property Ordinance (Cap. 192).
An order made under section 34(1)(a) or (b) of the Protection of Children and Juveniles Ordinance (Cap. 213).
An order made by the Court of First Instance in the exercise of its jurisdiction relating to wardship so far as it gives the care and control of a child to any person. (Amended 25 of 1998 s. 2)